NY-1221-23-0057-W-1
MSPBAug 21, 2024Background
- Miziel Remolona (appellant), a former Department of Veterans Affairs (VA) employee, filed an Individual Right of Action (IRA) appeal, alleging her removal was in retaliation for whistleblowing disclosures.
- The Merit Systems Protection Board (MSPB) administrative judge dismissed Remolona's IRA appeal for lack of jurisdiction without a hearing, finding her allegations insufficiently specific.
- Remolona, represented by counsel, petitioned for review, alleging she made protected disclosures about receiving inconsistent, incorrect, and potentially harmful instructions in her job.
- The Board reviewed whether Remolona’s disclosures met the threshold for protected whistleblowing activity under 5 U.S.C. § 2302(b)(8).
- The Board affirmed the administrative judge’s decision, supplementing the analysis on the specifics required for protected disclosures and discussing evidence of exhaustion.
- The case was designated nonprecedential, meaning it does not significantly add to MSPB case law and is not binding on future cases.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Remolona make a nonfrivolous allegation of a protected disclosure? | Disclosed to supervisors/preceptors that instructions were inconsistent, incorrect, violated policy, and could harm patients. | Alleged disclosures were vague, lacked specifics, and did not identify violated laws, rules, or policies. | No; disclosures were too vague to establish jurisdiction. |
| Did Remolona exhaust administrative remedies before OSC regarding these disclosures? | Provided OSC letter mentioning removal in reprisal for inconsistencies. | Claimed disclosures regarding inconsistent instructions were not described to OSC, so not exhausted. | Yes; letter to OSC was sufficient, despite vagueness. |
| Can new factual details be raised for the first time on petition for review? | Provided details concerning COVID-19 instruction discrepancies in petition. | Opposed consideration, as they were not raised below. | No; new evidence not considered absent due diligence showing unavailability before. |
| Are vague claims of retaliation about performance reports actionable? | Objects to agency characterizing objections as misconduct. | No specificity regarding what was disclosed or why it constituted wrongdoing. | No; allegations are too vague to warrant protection. |
Key Cases Cited
- Turner v. Department of Agriculture, 2023 MSPB 25 (clarifies standard for protected disclosure under 5 U.S.C. § 2302(b)(8))
- Gabel v. Department of Veterans Affairs, 2023 MSPB 4 (reiterates requirement that whistleblower disclosures be specific and detailed, not vague)
- El v. Department of Commerce, 123 M.S.P.R. 76 (2015) (nonfrivolous pleading standard requires more than conclusory or unsupported allegations)
- Ayers v. Department of the Army, 123 M.S.P.R. 11 (statements must clearly implicate identifiable violation of law/rule/regulation)
- Chambers v. Department of Homeland Security, 2022 MSPB 8 (explains exhaustion requirements for OSC complaints)