2023 MSPB 10
MSPB2023Background
- McCray, a GS-12 Human Resources Specialist, filed a May 2018 grievance alleging his supervisor discriminated against a visually impaired coworker and a July 2018 grievance contesting denial of input into an automated performance system and a time‑off award (TOA).
- As part of his duties McCray accessed others’ TOA records; his supervisor proposed and then imposed a 5‑day suspension (Oct. 2018) for misuse of position and an allegedly disrespectful email; he was reassigned to a different GS‑12 position effective Oct. 14, 2018.
- McCray filed an OSC complaint (Feb. 2019) alleging reprisal for his administrative grievances; OSC closed its inquiry and he filed an IRA appeal with the MSPB challenging the agency actions as retaliatory.
- The administrative judge dismissed the IRA appeal for lack of jurisdiction, finding the grievances did not seek to remedy whistleblower reprisal under 5 U.S.C. § 2302(b)(9)(A)(i).
- On review the Board denied McCray’s petition, affirmed that he failed to nonfrivolously allege protected activity under § 2302(b)(9)(A)(i), and modified the initial decision to find he also failed to nonfrivolously allege a protected disclosure under § 2302(b)(8) or protected activity under § 2302(b)(9)(B) or (C); the Board credited facially plausible allegations per Hessami.
Issues
| Issue | McCray’s Argument | Army’s Argument | Held |
|---|---|---|---|
| Whether McCray’s administrative grievances constituted protected activity under 5 U.S.C. § 2302(b)(9)(A)(i) (grievance to remedy whistleblower reprisal) | His May grievance raised disability discrimination and thus was protected; his July grievance challenged performance‑related denials tied to his complaints | Grievances did not allege or seek to remedy whistleblower reprisal, so they fall outside § 2302(b)(9)(A)(i) | Board: Grievances did not nonfrivolously allege they sought to remedy whistleblower reprisal; no jurisdiction under § 2302(b)(9)(A)(i) |
| Whether the disability‑discrimination disclosure is a protected whistleblower disclosure under 5 U.S.C. § 2302(b)(8) | He disclosed disability discrimination and that disclosure was the basis for reprisal | Disability claims are remediable through the Rehabilitation Act/EEOC; such disclosures are not within IRA jurisdiction under § 2302(b)(8) | Board: Disability grievance falls under Rehabilitation Act/EEOC, not § 2302(b)(8); no jurisdiction under § 2302(b)(8) |
| Whether McCray engaged in protected activity under 5 U.S.C. § 2302(b)(9)(B) (assisting another’s grievance) | He argued he raised coworker’s disability issue and thus was assisting the coworker | He did not allege the coworker filed a grievance or that McCray lawfully assisted another’s grievance | Board: No allegation coworker pursued a grievance or that McCray assisted one; no nonfrivolous claim under § 2302(b)(9)(B) |
| Whether disclosures in administrative grievances are protected under 5 U.S.C. § 2302(b)(9)(C) (disclosure to IG or internal review component) | The amended (post‑2017) § 2302(b)(9)(C) protects disclosures to internal investigative components, which could include grievance channels | Interpreting (b)(9)(C) to include grievance disclosures would overlap and render (b)(9)(A) superfluous; grievances are already covered by (b)(9)(A) distinctions | Board: § 2302(b)(9)(C) does not encompass disclosures made in administrative grievances; therefore grievances are not protected under (b)(9)(C) |
Key Cases Cited
- Hessami v. Merit Systems Protection Board, 979 F.3d 1362 (Fed. Cir. 2020) (requirement to credit facially plausible factual allegations when assessing nonfrivolous protected‑disclosure pleadings)
- Spruill v. Merit Systems Protection Board, 978 F.2d 679 (Fed. Cir. 1992) (disclosures made in the course of grievance/EEO processes are treated under § 2302(b)(9)(A), not § 2302(b)(8))
- Horner v. Merit Systems Protection Board, 815 F.2d 668 (Fed. Cir. 1987) (statutory provisions should be read together to avoid rendering any provision superfluous)
- Marren v. Department of Justice, 51 M.S.P.R. 632 (1991) (Congress did not intend to shift Rehabilitation Act discrimination claims from EEOC to MSPB IRA jurisdiction)
- Smets v. Department of the Navy, 117 M.S.P.R. 164 (2011) (MSPB lacks IRA jurisdiction over disability discrimination claims)