Case: 20-1312   Document: 28     Page: 1   Filed: 07/07/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

           GLENDA CHRISTINA SKINNER,
                    Petitioner

                            v.

      DEPARTMENT OF VETERANS AFFAIRS,
                   Respondent
             ______________________

                       2020-1312
                 ______________________

    Petition for review of the Merit Systems Protection
 Board in No. AT-1221-18-0632-W-1.
                 ______________________

                  Decided: July 7, 2020
                 ______________________

     GLENDA CHRISTINA SKINNER, Keystone Heights, FL,
 pro se.

     BRYAN MICHAEL BYRD, Commercial Litigation Branch,
 Civil Division, United States Department of Justice,
 Washington, DC, for respondent. Also represented by
 JOSEPH H. HUNT, ALLISON KIDD-MILLER, ROBERT EDWARD
 KIRSCHMAN, JR.; HEATHER BLACKMON, Office of General
 Counsel, United States Department of Veterans Affairs,
 Tampa, FL.
                 ______________________
Case: 20-1312    Document: 28     Page: 2    Filed: 07/07/2020




 2                                            SKINNER   v. DVA




     Before LOURIE, SCHALL, and DYK, Circuit Judges.
 PER CURIAM.
     Glenda Christina Skinner appeals from the decision of
 the Merit Systems Protection Board (“the Board”) in Skin-
 ner v. Dept. of Veterans Affairs , No. AT-1221-18-0632-W-1
 (Sept. 23, 2019), denying her request for corrective action
 for alleged whistleblower reprisal. App. 4–22. For the fol-
 lowing reasons, we affirm.
                        BACKGROUND
      Skinner was formerly employed as a GS-07 Supervi-
 sory Health Technician with the United States Depart-
 ment of Veterans Affairs (“the VA” or “the agency”) North
 Florida/South Georgia Veterans Health System in Gaines-
 ville, Florida. Effective September 2017, Skinner accepted
 the VA’s offer to reassign her to the position of a GS-06
 Practical Nurse. She subsequently filed a complaint with
 the Office of Special Counsel (“OSC”) alleging that the VA
 engaged in whistleblower reprisal after she made protected
 disclosures. On June 12, 2018, OSC took no action and
 closed its file and notified Skinner of her right to file an
 individual right of action (“IRA”) appeal at the Board.
     Skinner filed an IRA appeal on July 26, 2018 under the
 provisions of the Whistleblower Protection Act of 1989
 (“WPA”) and the Whistleblower Protection Enhancement
 Act of 2012 (“WPEA”). She alleged that she engaged in a
 number of protected activities and was subjected to a num-
 ber of alleged personnel actions. On September 23, 2019,
 the Board’s Administrative Judge (“AJ”) issued an initial
 decision denying Skinner’s request for corrective action.
     The AJ found that Skinner met the requirement to ex-
 haust her administrative remedies with respect to three al-
 leged whistleblowing activities: (1) disclosures in 2015
 regarding a technician who allegedly sabotaged specimens
 and wrote orders without a doctor’s permission;
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 SKINNER   v. DVA                                           3



 (2) participation in an agency administrative investigation
 board; and (3) a November 2015 email (copying the Secre-
 tary of the VA) about the phlebotomy lab being short-
 staffed. App. 8–9. The AJ also found that Skinner
 exhausted her administrative remedies with respect to five
 alleged personnel actions taken against her: (1) a proposed
 10-day suspension; (2) non-selection for a GS-09 Patient
 Representative position; (3) a failure to provide training;
 (4) a constructive demotion; and (5) a hostile work environ-
 ment. App. 9.
      The AJ next considered whether each of Skinner’s ac-
 tivities constituted a protected whistleblower activity un-
 der the statute. Following Board precedent, the AJ
 rejected Skinner’s claim that participating in an adminis-
 trative investigation board is activity protected under the
 WPA. Id. (citing Graves v. Dep’t of Veterans Affairs, 123
 M.S.P.R. 434 (2016)). The AJ also found that Skinner’s No-
 vember 2015 email about staffing in the phlebotomy lab
 was not a protected disclosure under the WPA because
 there was no evidence that she made that disclosure with
 the reasonable belief that it evidenced a violation of law,
 an abuse of authority, or a gross waste of funds. See App.
 9–13; see also 5 U.S.C. § 2302(a)(2)(D). However, the AJ
 found that Skinner made a protected disclosure under the
 WPA regarding the technician who sabotaged specimens
 and wrote orders. App. 13–14.
     The AJ then considered whether Skinner’s protected
 disclosure was a contributing factor to a personnel action
 taken by the agency. The AJ found that the denial of train-
 ing was not a personnel action because there was no evi-
 dence that such training was reasonably expected to lead
 to an appointment, promotion, performance evaluation, or
 other personnel action.      App. 14–15 (citing 5 U.S.C.
 § 2302(a)(2)(A)(ix)). The AJ also found that Skinner’s pro-
 tected disclosure was not a contributing factor in either her
 non-selection for the GS-09 position or her proposed 10-day
 suspension because there was no evidence that the people
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 4                                            SKINNER   v. DVA



 involved in those decisions had knowledge of Skinner’s dis-
 closure.
     Finally, the AJ considered Skinner’s allegations that
 the VA subjected her to a hostile work environment that
 compelled her to accept a demotion. 1 The AJ found that
 Skinner’s unpleasant working conditions were not due to
 the actions of the agency, but rather to the actions of the
 president of the local chapter of the American Federation
 of Government Employees union as well as Skinner’s own
 inexperience and failure to understand the relationship be-
 tween unions and agency management. App. 19. The AJ
 noted that the agency attempted to take action on Skin-
 ner’s behalf by directly contacting the union president
 about her intimidating and harassing behavior and by fil-
 ing an unfair labor practice charge against the union pres-
 ident with the Federal Labor Relations Authority. App. 18.
 Ultimately, however, the AJ found that the union president
 was afforded significant insulation from management dis-
 cipline and that the agency was justified in ordering Skin-
 ner to stop posting petitions for the removal of the union
 president because the petitions could be viewed as viola-
 tions of the Federal Service Labor-Management Relations
 Statute. App. 18–19. As for Skinner’s other allegations of
 a hostile work environment, including that she was as-
 signed tasks that it was impossible for her to complete, the
 AJ found that her assertions constituted “the type of dis-
 satisfaction with work assignments that the Board has
 found to be generally not so intolerable as to compel a rea-
 sonable person to resign.” App. 19.
      Based on his findings, the AJ concluded that Skinner
 failed to prove that she engaged in protected


     1   Skinner is no longer contesting her downgrade in
 position in this appeal. See Appellant Memorandum in lieu
 of Oral Argument at 1, ECF No. 24. We thus restrict our
 analysis to the hostile work environment charge alone.
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 SKINNER   v. DVA                                            5



 whistleblowing activity that was a contributing factor in a
 personnel action. App. 20. The AJ thus denied Skinner’s
 request for corrective action. The AJ’s decision became the
 final decision of the Board on October 28, 2019. Skinner
 appealed directly to this court, and we have jurisdiction un-
 der 28 U.S.C. § 1295(a)(9).
                          DISCUSSION
     Our review of a decision by the Board is limited. Pur-
 suant to 5 U.S.C. § 7703(c), a Board decision must be af-
 firmed unless it is found to be: (1) arbitrary, capricious, an
 abuse of discretion, 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 evidence. Hayes v. Navy, 727 F.2d 1535, 1537
 (Fed. Cir. 1984). The Board’s decision must be sustained
 when a rational basis exists for its conclusions. Carroll v.
 Dep’t of Health & Human Servs., 703 F.2d 1388, 1390 (Fed.
 Cir. 1983).
     On appeal, Skinner mainly asks us to reconsider the
 voluminous record of evidence that the AJ already consid-
 ered. For example, Skinner repeatedly argues that the AJ
 “dismissed” or “ignored” evidence, but the Board’s decision
 reflects the opposite. The AJ considered all of the evidence
 and, in fact, recognized the difficult circumstances Skinner
 faced, including that she “was the subject of verbal and
 written abuse by the president of the union.” App. 17.
 However, the AJ correctly applied the law by considering,
 not merely whether Skinner has legitimate grievances, but
 whether those grievances amount to whistleblower reprisal
 by the agency in violation of the WPA. The AJ concluded
 that Skinner failed to prove by a preponderance of the evi-
 dence that she made a protected disclosure that was a con-
 tributing factor in a personnel action. See Ellison v. Merit
 Sys. Prot. Bd., 7 F.3d 1031, 1034 (Fed. Cir. 1993). Because
 the AJ’s conclusion is supported by substantial relevant
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 6                                             SKINNER   v. DVA



 evidence and a rational basis, we have no reason to over-
 turn it.
      Skinner also misconstrues the AJ’s decision as well as
 the extent to which agency management is allowed to in-
 tervene in the activities of a union official. For example,
 Skinner contends that the AJ incorrectly found that the
 agency was not responsible for the hostile work environ-
 ment because it was created by the union president. See
 Appellant Br. 18–19 (citing case law from other circuits re-
 garding employer liability for tolerating a hostile work en-
 vironment); Appellant Memorandum in lieu of Oral
 Argument at 4. But the AJ found that the agency did not
 simply tolerate a hostile work environment; rather, it at-
 tempted to take action on Skinner’s behalf to resolve the
 issues she was having with the union president. App. 18.
 Moreover, the AJ found that any further intervention by
 the agency into the activities of the union president could
 have potentially subjected the agency to liability for an un-
 fair labor practice. Id. (citing 5 U.S.C. § 7116(a)(1)). Thus,
 we find no error in the AJ’s decision that the evidence re-
 garding a hostile work environment did not support Skin-
 ner’s claim of whistleblower reprisal by the agency.
     Skinner’s procedural arguments regarding discovery
 motions, hearing continuances, and evidentiary issues are
 also unavailing. “Procedural matters relative to discovery
 and evidentiary issues fall within the sound discretion of
 the board and its officials.” Curtin v. Office of Pers. Mgmt.,
 846 F.2d 1373, 1378 (Fed. Cir. 1988). Although Skinner
 asserts that the Board’s procedural decisions were incor-
 rect for a variety of reasons, she provides no evidence from
 which we can conclude that the AJ abused his discretion.
     Finally, Skinner’s attempt to shift the burden to the
 agency is incorrect under the law. See Appellant Br. 10
 (arguing that the agency “did not prove by clear and con-
 vincing evidence that Ms. Skinner did not engage in pro-
 tected disclosure and that the disclosure did not result in
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 SKINNER   v. DVA                                           7



 reprisal.”); see also id. (“The agency must also prove by
 clear and convincing evidence that they did not retaliate
 against Ms. Skinner for her protective disclosures.”). The
 burden rested with Skinner to prove by a preponderance of
 the evidence that she made a protected disclosure as de-
 fined in 5 U.S.C. § 2302(b)(8), and that the protected dis-
 closure was a contributing factor to an adverse personnel
 action. See Ellison, 7 F.3d at 1034. Unless and until Skin-
 ner met her burden, the agency had no obligation to prove
 anything. Id. We thus find no legal error by the AJ.
                         CONCLUSION
     We have considered Skinner’s remaining arguments,
 but we find them unpersuasive. Thus, the decision of the
 Board is affirmed.
                         AFFIRMED
                            COSTS
    No costs.
