                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                      2014 MSPB 85

                            Docket No. CH-1221-13-1557-W-1

                                   Margaret M. Reed,
                                        Appellant,
                                             v.
                           Department of Veterans Affairs,
                                          Agency.
                                    November 25, 2014

           John R. Folkerth, Jr., Esquire, and Kenneth J. Heisele, Esquire, Dayton,
             Ohio, for the appellant.

           Demetrious A. Harris, Esquire, Dayton, Ohio, for the agency.

                                         BEFORE

                             Susan Tsui Grundmann, Chairman
                             Anne M. Wagner, Vice Chairman
                                Mark A. Robbins, Member



                                 OPINION AND ORDER

¶1         The appellant has filed a petition for review of the initial decision that
     dismissed her individual right of action (IRA) appeal for lack of jurisdiction. For
     the reasons discussed below, we GRANT the petition for review and REMAND
     the case to the regional office for further adjudication in accordance with this
     Opinion and Order.

                                     BACKGROUND
¶2         In this whistleblower appeal, the appellant alleges that the agency took
     various personnel actions, including a 3-day suspension, against her in retaliation
                                                                                        2

     for disclosures that she made concerning violations of its procedures in the
     handling of her administrative grievance.       The facts, as the appellant alleges
     them, are as follows.
¶3         The appellant is a Human Resources Specialist (Employee Relations) for
     the agency. Initial Appeal File (IAF), Tab 5, Subtab 4A. On February 13, 2012,
     the Assistant Chief of Human Resources issued the appellant an admonishment
     for disrespectful conduct toward her supervisor. IAF, Tab 4 at 8-10 of 70. The
     appellant filed an informal grievance, challenging the factual basis of the
     admonishment. 1 Id. at 34-40 of 70. On April 9, 2012, the Assistant Chief denied
     the grievance. Id. at 41 of 70.
¶4         On April 18, 2012, the appellant filed a formal grievance, again
     challenging the factual basis for the admonishment.       Id. at 42-49 of 70.     On
     May 14, 2012, the Chief of Human Resources denied the appellant’s formal
     grievance and the appellant requested that a grievance examiner be appointed. Id.
     at 51 of 70.
¶5         The agency appointed a grievance examiner, and on June 20, 2012, the
     grievance examiner issued a memorandum to the Chief recommending that the
     grievance be denied.         Id. at 52 of 70.   Citing the examiner’s findings and
     recommendations, the Chief again informed the appellant that her grievance was
     denied. 2 Id. at 53 of 70.
¶6         On June 22, 2012, the appellant emailed the Medical Center Director and
     informed him of what she believed to be a “futile grievance process.” Id. at 54 of

     1
       The appellant filed this grievance under administrative—not negotiated—grievance
     procedures. See IAF, Tab 4 at 63 of 70. The appellant is not part of a collective
     bargaining unit because the nature of her position excludes coverage. IAF, Tab 5,
     Subtab 2.
     2
      The Chief’s second grievance decision was dated June 28, 2012, but the appellant was
     aware of the grievance examiner’s findings and recommendations on June 20, 2012, the
     date they were issued. IAF, Tab 4 at 53-54 of 70.
                                                                                          3

     70. She stated that the allegations underlying the admonishment were untrue and
     that the agency should have conducted further fact finding. Id. The appellant
     requested to meet with the Director to discuss the matter. Id. The Chief and the
     Assistant Chief then threatened to discipline the appellant if she went through
     with the meeting.
¶7         On July 26, 2012, the appellant sent an email to the Director and the Chief,
     again complaining of the grievance process. 3 Id. at 56 of 70. She stated that
     management ignored the factual disputes that she raised and failed to make any
     additional factual inquiries as required by agency policy. Id. She stated that the
     agency thereby violated her due process rights. Id. The appellant met with the
     Director on August 29, 2012. Id. at 4, 58 of 70. She told the Director that the
     admonishment itself was an unwarranted personnel action taken without due
     process. Id. at 4 of 70. She also told the Director that, in retaliation for her filing
     the grievance, the Chief and the Assistant Chief failed to follow the
     administrative grievance procedures by denying her the opportunity for an oral
     response and failing to conduct any fact finding, thus denying her due process in
     the context of her grievance. Id.
¶8         On October 4, 2012, the Chief proposed to suspend the appellant for 3 days
     based on complaints from three different agency officials who had sought the
     appellant’s advice on various personnel matters. IAF, Tab 5, Subtab 4C. These
     complaints were lodged on August 15, 2012, August 24, 2012, and October 1,
     2012, respectively, and related that the appellant was unhelpful and rude. Id.,
     Subtabs 4C-4F.      After the appellant responded, IAF, Tab 4 at 9-13 of 17, on
     October 26, 2012, the Chief issued a decision effecting the 3-day suspension,
     IAF, Tab 5, Subtab 4B. In issuing this discipline, the Chief considered, among

     3
       Two other individuals were copied on the email. IAF, Tab 4 at 56 of 70. The record
     does not indicate the positions of these individuals, and the appellant does not allege
     that they had any role in any personnel actions against her.
                                                                                             4

      other things, the appellant’s January 12, 2012 admonishment, which could have
      been removed from her file 6 months after its issuance, but which the Assistant
      Chief elected not to remove. IAF, Tab 4 at 9 of 70, 15 of 33, Tab 5, Subtab 4B at
      1, Subtab 4C at 3.
¶9          The appellant filed a complaint with the Office of Special Counsel (OSC),
      alleging that the 3-day suspension was in reprisal for her disclosures to the
      Director. IAF, Tab 4 at 8-24 of 33. After OSC closed the appellant’s file without
      taking corrective action, the appellant filed the instant IRA appeal and requested
      a hearing. IAF, Tab 1 at 6, Tab 4 at 31-32 of 33. The parties submitted evidence
      and argument on the jurisdictional issue, and the administrative judge issued an
      initial decision dismissing the appeal for lack of jurisdiction. 4        IAF, Tab 16,
      Initial Decision (ID). She found that the appellant failed to make a nonfrivolous
      allegation that she made a protected disclosure and that the appellant’s grievance
      itself was not protected activity covered under the Whistleblower Protection
      Enhancement Act (WPEA). ID at 6-10.
¶10         The appellant has filed a petition for review, arguing that the
      administrative judge erred in finding that her disclosures were not protected.
      According to the appellant, they evidenced numerous abuses of authority and
      violations of law and agency policy concerning the grievance process and the
      underlying admonishment itself. Petition for Review (PFR) File, Tab 1. The
      agency has responded in opposition to the petition for review, PFR File, Tab 3,
      and the appellant has filed a reply to the agency’s response, PFR File, Tab 4.




      4
        The initial decision states that corrective action was denied, thus suggesting that the
      disposition was on the merits. IAF, Tab 16, Initial Decision at 2, 10. However, the
      substance of the decision makes clear that the administrative judge actually dismissed
      the appeal for lack of jurisdiction.
                                                                                           5

                                           ANALYSIS
¶11         Generally, to establish jurisdiction over an IRA appeal regarding activity
      protected under 5 U.S.C. § 2302(b)(8), an appellant must prove that she
      exhausted her administrative remedies before OSC and make nonfrivolous
      allegations that (1) she engaged in whistleblowing activity by making a protected
      disclosure under 5 U.S.C. § 2302(b)(8), and (2) the disclosure 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). Yunus v. Department of Veterans Affairs, 242 F.3d 1367,
      1371 (Fed. Cir. 2001); Rusin v. Department of the Treasury, 92 M.S.P.R. 298,
      ¶ 12 (2002).

      This appeal involves four personnel actions.
¶12         We find that the appellant identified alleged “personnel actions” that do not
      fall within the protection of the WPEA.        These include the denial of several
      procedural protections during the grievance process and various actions and
      procedures leading up to the 3-day suspension. IAF, Tab 4 at 5-6 of 70. As to
      the alleged denials of procedural protections during the grievance process, the
      appellant asserted that these were in retaliation for her filing the grievance. Id. at
      5 of 70.   We do not reach the issue of whether these allegations amount to
      personnel actions because, as the administrative judge correctly found, the filing
      of a grievance, which does not itself seek to remedy whistleblower reprisal, is not
      a protected disclosure under the WPEA. 5 ID at 9-10; see Mudd v. Department of
      Veterans   Affairs,   120   M.S.P.R.    365,    ¶¶ 6-7   (2013)   (citing   5   U.S.C.
      § 2302(b)(9)(A)(i)); see also 5 U.S.C. §§ 1221, 1214 (containing the codified
      version of the statute at large cited in the Mudd decision as section 101(b)(1)(A)
      of the WPEA). Concerning the several matters surrounding the appellant’s 3-day


      5
       We have reviewed both the formal and the informal grievances, and we find that they
      do not contain allegations of whistleblower reprisal. IAF, Tab 4 at 34-40, 42-49 of 70.
                                                                                        6

      suspension, we find that the actions that the appellant identifies related to the
      Chief’s handling and consideration of her response do not amount to “personnel
      actions” under 5 U.S.C. § 2302(a)(2)(A). IAF, Tab 4 at 6 of 70.
¶13         Nevertheless, we find that the appellant identified four alleged personnel
      actions over which the Board might have jurisdiction in the context of this
      appeal: (1) the proposed 3-day suspension, (2) the decision to sustain the 3-day
      suspension, (3) the refusal to remove the admonishment from the appellant’s
      personnel file, and (4) the threats to discipline the appellant for meeting with the
      Director. Specifically, the proposed 3-day suspension and the 3-day suspension
      itself constituted a threatened disciplinary action and a disciplinary action,
      respectively.    See 5 U.S.C. § 2302(a)(2)(iii).   We also find that the Assistant
      Chief’s alleged refusal to remove the admonishment from the appellant’s Official
      Personnel File constituted a failure to take a personnel action under these
      circumstances.     The admonishment itself was a personnel action, Cochran v.
      Department of Veterans Affairs, 67 M.S.P.R. 167, 174 (1995), and the letter of
      admonishment indicated that it would remain in the appellant’s Official Personnel
      File for 6 months or up to 2 years, depending on her future behavior and attitude,
      IAF, Tab 4 at 9 of 70. The Assistant Chief’s decision to retain the admonishment
      in the appellant’s file beyond 6 months could have, and did in fact have, an
      adverse consequence in a future disciplinary action—the 3-day suspension. IAF,
      Tab 5, Subtab 4B at 1, Subtab 4C at 3; cf. Johnson v. Department of Health &
      Human Services, 93 M.S.P.R. 38, ¶ 16 (2002) (finding that an admonishment was
      a personnel action, in part, because the agency could rely on it for penalty
      enhancement in future discipline). Finally, we find that the appellant has made a
      nonfrivolous allegation that the Chief and the Assistant Chief threatened her with
                                                                                            7

      a personnel action on or about July 26, 2012, by threatening to discipline her for
      meeting with the Director. 6 IAF, Tab 4 at 6 of 70, 15 of 33.

      The appellant failed to nonfrivolously allege that she made a protected disclosure
      that was a contributing factor in the decision to take a personnel action.
¶14         On review, the appellant has identified a large number of alleged
      irregularities in the grievance process. These include that the Chief was not a
      proper deciding official for the grievance, PFR File, Tab 1 at 7, 14, 25-26; the
      grievance examiner was not properly qualified, id. at 7, 15-17, 25-28; the
      appellant was not timely informed of the grievance examiner’s appointment, id. at
      16-17; the agency failed to create a grievance file and an examiner’s final report,
      id. at 16-17, 29; the informal grievance did not notify the appellant of her right to
      file a formal grievance, id. at 13; and the Assistant Chief tried to dissuade the
      appellant from filing a formal grievance, id. These allegations are not properly
      before the Board because the appellant has not alleged that they were in reprisal
      for any disclosure. An IRA appeal is not the appropriate forum to collaterally
      attack the agency’s internal process for resolving discipline; the Board’s
      jurisdiction is limited to adjudicating claims of whistleblower reprisal.           See
      McCarthy v. International Boundary & Water Commission, 116 M.S.P.R. 594,
      ¶ 27 (2011) (declining to consider the appellant’s arguments of constitutional and
      statutory violations in connection with his termination in the context of an IRA
      appeal), aff’d, 497 F. App’x 4 (Fed. Cir. 2012), cert. denied, 134 S. Ct. 386
      (2013). Moreover, the appellant has raised these arguments for the first time on
      review without explaining why she did not raise them below. See Avansino v.
      U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (the Board will generally not
      consider evidence submitted for the first time with the petition for review absent


      6
        We find that the appellant exhausted her administrative remedies with respect to these
      alleged personnel actions. IAF, Tab 4 at 15, 20-22 of 33.
                                                                                       8

      a showing that it was unavailable before the record was closed despite the party’s
      due diligence).
¶15         In response to the administrative judge’s jurisdictional order, the appellant
      identified the following disclosures: (1) the June 22, 2012 email to the Director
      complaining about the grievance process and requesting an in-person meeting,
      with a follow-up email of June 25, 2012, containing grievance-related documents,
      IAF, Tab 4 at 3-4, 54 of 70; (2) a July 24, 2012 email to the Director requesting
      to meet with him about the grievance process, id. at 4, 55 of 70; (3) a July 26,
      2012 email to the Director complaining about the grievance process and
      informing him that the appellant still wished to meet with him, id. at 4, 56 of 70;
      (4) an August 7, 2012 email to the Assistant Chief informing her that the
      appellant had a meeting scheduled with the Director, id. at 4, 58 of 70; (5) the
      August 29, 2012 meeting with the Director complaining about the admonishment
      and the grievance process, id., at 4 of 70; and (6) the October 9, 2012 complaint
      to OSC, id. at 4 of 70, 8-24 of 33.
¶16         Regarding the June 22, 2012 email to the Director, the appellant contends
      that her email disclosed that the Assistant Chief and the Chief of Human
      Resources had repeatedly failed to follow VA Handbook 5021. IAF, Tab 4 at 4
      of 70.   We find that the appellant made a nonfrivolous allegation that she
      reasonably believed that her email disclosed information that evidenced a
      violation of law, rule, or regulation.     See Czarkowski v. Department of the
      Navy, 87 M.S.P.R. 107, ¶ 11 (2000). Accordingly, we find that the appellant has
      made a nonfrivolous allegation that her June 22, 2012 email to the Director
      constituted a protected disclosure.      However, the appellant has failed to
      nonfrivolously allege that this disclosure was a contributing factor in her 3-day
      suspension because she has not alleged that the Chief or the Assistant Chief, who
      were responsible for the alleged personnel actions described above, knew about
      the email or its contents. IAF, Tab 4 at 4, 54 of 70.
                                                                                        9

¶17         Regarding the July 24, 2012 email, we find that the appellant failed to
      nonfrivolously allege that this was a protected disclosure because it did not
      disclose any information. Id. at 55 of 70. It was merely a request to meet with
      the Director. Id.
¶18         Regarding the July 26, 2012 email, the appellant alleged that the agency
      deprived her of due process in the context of her grievance because it failed to
      address the factual dispute that she raised and failed to conduct a proper factual
      inquiry. Id. We agree with the administrative judge that the appellant has failed
      to make a nonfrivolous allegation that she reasonably believed that the agency’s
      assessment of the evidence constituted a violation of agency rule, an abuse of
      authority, or any other type of wrongdoing under 5 U.S.C. § 2302(b)(8)(A). ID at
      7-9. Contrary to the appellant’s assertions, the formal grievance decisions, one
      by the Chief and the other by the grievance examiner, both made specific findings
      that the charges were “fully supported by the evidence.” IAF, Tab 4 at 51-53 of
      70.   The agency’s assessment of the evidence is lacking in detail, and the
      appellant may disagree with its conclusion, but we find that her assertion that the
      factual dispute was never acknowledged is patently incorrect. PFR File, Tab 1 at
      6, 12, 24-25, 27.
¶19         We also agree with the administrative judge that the appellant has failed to
      identify any rule that would require the agency to conduct any further fact finding
      investigation beyond the evidence that the appellant and management had already
      submitted. ID at 7-8. We have reviewed the relevant excerpt of VA Handbook
      5021, and we find that it provides for a preliminary inquiry but states that further
      investigation “may be warranted” depending on the nature and seriousness of the
      incident. IAF, Tab 4 at 64 of 70. We therefore cannot agree with the appellant
      that the agency somehow violated this portion of VA Handbook 5021. PFR File,
      Tab 1 at 5-6, 10-11, 14. For these reasons, we agree with the administrative
      judge that the appellant failed to make a nonfrivolous allegation that she
                                                                                            10

      reasonably believed that this disclosure evidenced an abuse of discretion or a
      violation of law, rule, or regulation. ID at 7-9.
¶20          In any event, we also find that the appellant failed to nonfrivolously allege
      that the July 26, 2012 email was a contributing factor in any personnel actions
      taken against the appellant. 7      The Chief was one of the recipients of this
      disclosure. IAF, Tab 4 at 56 of 70. Therefore, he was undoubtedly aware of it.
      The appellant, however, has not alleged that the Assistant Chief was aware of this
      disclosure. Thus, the appellant has failed to meet her jurisdictional burden with
      respect to it.
¶21          Regarding the August 7, 2012 email to the Assistant Chief, we find that the
      appellant failed to nonfrivolously allege that this was a protected disclosure
      because the only information contained in that email is the fact that the appellant
      had a meeting scheduled with the Director. IAF, Tab 4 at 58 of 70. This email
      did not disclose wrongdoing of any sort.
¶22          Regarding the August 29, 2013 meeting with the Director, the appellant
      contends that she disclosed during the meeting agency violations of VA
      Handbook 5021.      IAF, Tab 4 at 4 of 70.       We find that the appellant made a
      nonfrivolous allegation that she reasonably believed that these disclosures
      evidenced a violation of law, rule, or regulation. See Czarkowski, 87 M.S.P.R.
      107, ¶ 11. In any event, she has failed to make a nonfrivolous allegation that they
      7
        We note that the WPEA instructs that a denial of a request for corrective action on the
      basis that the agency established its affirmative defense may only be made “after a
      finding that a protected disclosure was a contributing factor.” 5 U.S.C. § 1221(e)(2);
      see Clarke v. Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19 n.10 (2014);
      Belyakov v. Department of Health & Human Services, 120 M.S.P.R. 326, ¶ 7 n.3 (2013).
      Nothing in the WPEA, however, precludes the Board from considering, at the
      jurisdictional stage, whether the appellant made a nonfrivolous allegation that the
      disclosure was a contributing factor in the agency’s decision to take or fail to take a
      personnel action, even in the absence of a finding that she made a nonfrivolous
      allegation that the disclosure was protected.
                                                                                           11

      were a contributing factor in the personnel actions at issue. She has not alleged
      that either the Chief or the Assistant Chief were aware of what transpired during
      the meeting or of any particular disclosures that the appellant might have made.
¶23         Regarding the appellant’s October 9, 2012 complaint to OSC, we find that
      the appellant made a nonfrivolous allegation that her complaint was protected
      by 5 U.S.C. § 2302(b)(8)(B)(i). Prior to the enactment of the WPEA, that section
      stated, in pertinent part, that it is a prohibited personnel practice to take or fail to
      take, or threaten to take or fail to take, a personnel action concerning any
      employee “because of . . . any disclosure to the Special Counsel” of information
      that the employee reasonably believes evidences “a violation of any law, rule, or
      regulation.” 8   5 U.S.C. § 2302(b)(8)(B)(i)(2011); Colbert v. Department of
      Veterans Affairs, 121 M.S.P.R. 677, ¶ 8 (2014). In her complaint to OSC, the
      appellant disclosed alleged agency violations of VA Handbook 5021. IAF, Tab 4
      at 8-24 of 33. We find that the appellant has made a nonfrivolous allegation that
      she reasonably believed that she disclosed a violation of a law, rule, or regulation
      to OSC. See Colbert, 121 M.S.P.R. 677, ¶ 8.
¶24         The appellant, however, has again failed to make a nonfrivolous allegation
      that this disclosure was a contributing factor to any of the personnel actions at
      issue. The OSC complaint postdates the threatened discipline for meeting with
      the Director, the failure to remove the admonishment from the appellant’s
      Official Personnel File, and the proposed suspension. IAF, Tab 4 at 8, 15 of 33,
      Tab 5, Subtab 4C at 1. Therefore, it could not have been a contributing factor in
      these actions. See Johnson v. Department of Justice, 104 M.S.P.R. 624, ¶ 26

      8
        The WPEA went into effect on December 27, 2012, after the appellant’s October 9,
      2012 complaint to OSC. Colbert v. Department of Veterans Affairs, 121 M.S.P.R. 677,
      ¶ 6 (2014). The only change that the WPEA made to 5 U.S.C. § 2302(b)(8)(B)(i) is that
      it struck “a violation” and inserted “any violation (other than a violation of this
      section).” Colbert, 121 M.S.P.R. 677, ¶ 8 n.3. We have considered this amendment
      and find that it does not change the result in this case. See id.
                                                                                        12

      (2007). The only personnel action to which this disclosure could possibly have
      been a contributing factor was the October 26, 2012 suspension decision. IAF,
      Tab 4B at 1. However, the appellant has not alleged that the Chief was aware of
      her OSC complaint at the time he rendered his decision; therefore, there is no
      basis for the Board to conclude that this disclosure was a contributing factor.

      This appeal is remanded for the appellant to have an opportunity to make a
      nonfrivolous allegation that she was perceived as a whistleblower.
¶25         Under certain circumstances, an appellant can establish jurisdiction over an
      IRA appeal without making a nonfrivolous allegation that she made a protected
      disclosure. Specifically, an individual who is perceived as a whistleblower is still
      entitled to the whistleblower protections, even if she has not made protected
      disclosures.   King v. Department of the Army, 116 M.S.P.R. 689, ¶ 6 (2011);
      Special Counsel v. Department of the Navy, 46 M.S.P.R. 274, 278-80 (1990). For
      the following reasons, we find that the appellant’s submissions below warrant an
      analysis under this theory.
¶26         Although there is no indication that the Chief or the Assistant Chief were
      aware of any specific disclosures that the appellant might have made during her
      August 29, 2012 meeting with the Director, the appellant alleged that they were
      very resistant to the notion that she should have such a meeting, even to the point
      of threatening to discipline her for it.   IAF, Tab 4 at 15 of 33.      She further
      claimed that these threats were contrary to the Director’s “open door policy.” Id.
      at 14 of 33. Absent from the appellant’s allegations, however, is any indication
      that the opposition to her meeting with the Director was due to the Chief’s and
      Assistant Chief’s perception that the appellant was going to make protected
      disclosures during that meeting, or if it was due to some other reason.           See
      King, 116 M.S.P.R. 689, ¶ 8 (in cases involving perceived whistleblowing, the
      Board will focus its analysis on the agency’s perceptions, i.e., whether the agency
      officials involved in the personnel actions at issue believed that the appellant
      made or intended to make disclosures that evidenced the type of wrongdoing
                                                                                      13

      listed under 5 U.S.C. § 2302(b)(8)). Therefore, the appellant has not yet made a
      nonfrivolous allegation that the agency perceived her as a whistleblower or that
      this perception was a contributing factor in a personnel action.
¶27         Nevertheless, the administrative judge did not give the appellant explicit
      notice of how to establish jurisdiction over an IRA appeal as a perceived
      whistleblower, and the defect was not corrected by the agency’s submissions or
      by the initial decision. See Burgess v. Merit Systems Protection Board, 758 F.2d
      641, 643-44 (Fed. Cir. 1985); King, 116 M.S.P.R. 689, ¶ 11. Because the nature
      of the appellant’s claim below suggested that she may be attempting to argue that
      she was a perceived whistleblower, and because she has not received notice of
      how to establish jurisdiction under such a theory, we find it appropriate to
      remand this appeal for the appellant to receive such notice and for further
      development of the record on this issue. 9 On remand, the administrative judge
      may adopt in her new initial decision her prior findings related to the appellant’s
      claim that she was retaliated against for actual whistleblowing activity.

                                            ORDER
¶28         For the reasons discussed above, we REMAND this case to the regional
      office for further adjudication in accordance with this Remand Order.



      FOR THE BOARD:


      ______________________________
      William D. Spencer
      Clerk of the Board
      Washington, D.C.


      9
        We find that the appellant’s allegations to OSC were sufficient to satisfy the
      exhaustion requirement for this issue. IAF, Tab 4 at 14-16 of 33.
