2023 MSPB 4
MSPB2023Background
- Appellant Renate M. Gabel was a Licensed Practical Nurse at VA Community Based Outpatient Clinic in Gloucester, NJ; she filed an OSC complaint on or about August 27, 2015, alleging disability discrimination, retaliation, and abuse related to FMLA leave and accommodation requests.
- OSC issued a close-out letter on February 16, 2016, notifying Gabel of her right to file a Board appeal; she filed an IRA appeal with the MSPB.
- The administrative judge ordered proof of jurisdictional elements; Gabel submitted documents but requested a hearing. The AJ dismissed the appeal for lack of jurisdiction without a hearing.
- The AJ found Gabel failed to make nonfrivolous allegations that she made protected disclosures under 5 U.S.C. § 2302(b)(8) or engaged in protected activity under § 2302(b)(9)(A), and alternatively failed to show those acts were a contributing factor in personnel actions.
- The Board affirmed: Gabel’s allegations were vague and nonspecific (no content, recipient, or dates of disclosures), she exhausted OSC remedies, but the pleading did not plausibly allege protected whistleblowing or qualifying EEO activity; the appeal was dismissed for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gabel nonfrivolously alleged a protected disclosure under 5 U.S.C. § 2302(b)(8) | Gabel says she repeatedly told supervisors (Oct 2014–Aug 2015) about discrimination, FMLA/Fair accommodation abuses and sought to report wrongdoing | Agency contends allegations are vague, lack content, dates, recipients, and do not show a reasonable belief that statutory categories of wrongdoing occurred | Board: No — allegations are too vague/nonspecific to plausibly show a protected disclosure; jurisdiction lacking |
| Whether Gabel engaged in protected activity under 5 U.S.C. § 2302(b)(9)(A) (EEO activity that remedies whistleblower reprisal) | Gabel points to filing an EEO complaint alleging discrimination and retaliation | Agency/Board note the EEO complaint did not allege it was seeking to remedy reprisal for whistleblowing under § 2302(b)(8) | Board: No — EEO activity as pled did not fall within § 2302(b)(9)(A)(i) scope for IRA jurisdiction |
| Whether alleged disclosures or protected activity were a contributing factor in personnel actions | Gabel argues the agency retaliated and that personnel actions were in response to her reports/EEO filing | Agency disputes any causal link; argues pleading fails to allege facts showing contribution | Board (alternative): No — even accepting facts favorably, she failed to nonfrivolously allege a contributing-factor causal nexus |
Key Cases Cited
- Salerno v. Department of the Interior, 123 M.S.P.R. 230 (establishes IRA jurisdiction elements and nonfrivolous pleading standard)
- Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365 (reasonable-belief, objective test for protected disclosure)
- El v. Department of Commerce, 123 M.S.P.R. 76 (vague or conclusory allegations insufficient for nonfrivolous pleading)
- Hessami v. Merit Systems Protection Board, 979 F.3d 1362 (Fed. Cir.) (pleading must be plausible on its face; Board may not resolve by crediting agency interpretation)
- Young v. Merit Systems Protection Board, 961 F.3d 1323 (Fed. Cir.) (limits Board IRA jurisdiction over certain EEO activity)
- Mithen v. Department of Veterans Affairs, 122 M.S.P.R. 489 (defines "abuse of authority")
- Embree v. Department of the Treasury, 70 M.S.P.R. 79 (defines "gross management")