John Edwards v. Department of Labor, 2022 MSPB 9

Background

John S. Edwards (GS-15 Deputy Director) alleged his supervisors discriminated by denying opportunities and a promotion to African American employees and verbally protested those practices to supervisors, the agency EEO Office, and under the agency Harassing Conduct Policy.
Shortly after his complaints and EEO filings, the agency reassigned Edwards from a supervisory to a nonsupervisory GS-15 position and posted his former position for recruitment.
Edwards filed a complaint with the Office of Special Counsel (OSC); after OSC closed its investigation he filed an IRA appeal with the MSPB alleging retaliation under 5 U.S.C. §§ 2302(b)(8) and 2302(b)(9).
The administrative judge found Edwards exhausted OSC remedies but concluded he failed to make nonfrivolous allegations that his disclosures or activity were protected under § 2302(b)(8), § 2302(b)(9)(A)(i), or § 2302(b)(9)(B), and dismissed for lack of jurisdiction.
On review the Board denied the petition, holding (1) Title VII–type discrimination complaints are not whistleblower disclosures under § 2302(b)(8); (2) Edwards’ EEO filings sought Title VII relief and thus do not give the Board jurisdiction under § 2302(b)(9)(A)(i); (3) Edwards did not lawfully assist any coworker who had exercised an appeal, complaint, or grievance right, so § 2302(b)(9)(B) does not apply.

Issues

Issue	Plaintiff's Argument (Edwards)	Defendant's Argument (Agency)	Held
Whether Edwards’ complaints about racial discrimination are protected disclosures under 5 U.S.C. § 2302(b)(8)	His verbal and reported complaints evidenced disclosures of unlawful conduct/abuse of authority and thus are whistleblower-protected.	Allegations concern Title VII discrimination matters, which fall outside § 2302(b)(8) and belong before the EEOC.	Held: Not protected under § 2302(b)(8); Title VII–type claims excluded from whistleblower coverage.
Whether filing EEO complaints/Harassing Conduct complaints is protected activity under § 2302(b)(9)(A)(i) (i.e., remedying a § 2302(b)(8) violation)	His EEO filings and agency complaints sought to remedy unlawful agency practices and so qualify as protected activity.	The EEO filings sought Title VII relief, not to remedy a § 2302(b)(8) whistleblower violation; therefore § 2302(b)(9)(A)(i) does not apply.	Held: Not protected under § 2302(b)(9)(A)(i); Board lacks jurisdiction over Title VII–based EEO activity.
Whether assisting coworkers constitutes protected assistance under § 2302(b)(9)(B)	His support and protests for African American employees constituted "lawful assistance" and should be protected (WPEA expansion).	No coworker actually filed an appeal/complaint/grievance; assisting must be tied to another’s exercise of those rights.	Held: Not protected under § 2302(b)(9)(B); no evidence coworkers had exercised qualifying rights.
Whether WPEA or later statutes (2018 NDAA) broaden whistleblower coverage to include Title VII matters or retroactively protect Edwards	WPEA broadened whistleblower protections and legislative history supports expansive coverage; Edwards also cites ethical/regulatory duty to report abuse.	WPEA did not alter long-standing rule excluding Title VII matters from § 2302(b)(8); 2018 NDAA amendment to § 2302(b)(9)(C) is not retroactive and does not aid Edwards.	Held: WPEA and subsequent enactments do not encompass Title VII claims in § 2302(b)(8); 2018 NDAA amendment not retroactive and inapplicable.

Key Cases Cited

Spruill v. Merit Systems Protection Board, 978 F.2d 679 (Fed. Cir.) (filing an EEOC complaint is not a whistleblowing disclosure under § 2302(b)(8))
Serrao v. Merit Systems Protection Board, 95 F.3d 1569 (Fed. Cir.) (reaffirming Spruill on Title VII/whistleblower distinction)
Young v. Merit Systems Protection Board, 961 F.3d 1323 (Fed. Cir.) (discrimination claims not within IRA whistleblower jurisdiction)
Williams v. Department of Defense, 46 M.S.P.R. 549 (MSPB) (reprisal for EEO activity not protected under § 2302(b)(8))
Von Kelsch v. Department of Labor, 59 M.S.P.R. 503 (MSPB) (Title VII-related disclosures divest Board of § 2302(b)(8) jurisdiction)
Redschlag v. Department of the Army, 89 M.S.P.R. 589 (MSPB) (disclosures of discrimination are excluded from § 2302(b)(8))
Armstrong v. Department of Justice, 107 M.S.P.R. 375 (MSPB) (overruled here to the extent it treated Title VII opposition as § 2302(b)(8) disclosure)
Kinan v. Department of Defense, 87 M.S.P.R. 561 (MSPB) (overruled here insofar as it extended § 2302(b)(8) to Title VII opposition)
Ellison v. Merit Systems Protection Board, 7 F.3d 1031 (Fed. Cir.) (distinguished; not controlling where EEO activity exists)