19-2268
Fed. Cir.Jun 11, 2020Background
- Teresa M. Young was an IRS clerk removed during her one-year probation (removed March 12, 2018); she challenged removal through multiple administrative channels.
- She filed a Chapter 75 Board appeal (dismissed for lack of jurisdiction because she was a probationary employee) and an EEO complaint alleging discrimination and failure to accommodate a disability.
- Young filed a complaint with the Office of Special Counsel (OSC); OSC declined to pursue the matter on June 17, 2019, and she then filed an Individual Right of Action (IRA) appeal with the Merit Systems Protection Board (MSPB).
- The MSPB administrative judge ordered Young to make non-frivolous, specific allegations (with evidence) showing protected whistleblower disclosures under 5 U.S.C. § 2302(b)(8) (or covered reprisals under § 2302(b)(9)); Young did not comply with the order.
- The administrative judge dismissed the IRA appeal for lack of jurisdiction (no non-frivolous protected-disclosure allegations; exhaustion and scope problems); Young petitioned the Federal Circuit, which affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether this court has jurisdiction post-Perry v. MSPB | Young urged the court to reach the merits of her IRA appeal | Board: IRA appeals are not Perry "mixed cases"; circuit courts (not district courts) review IRA decisions | Court: IRA appeals are not mixed cases; this court has jurisdiction to review the IRA dismissal |
| Whether Young made non-frivolous protected-disclosure allegations re: time & attendance abuses | Young alleged managers concealed lack of work, falsified presence, extended breaks | Board/AJ: allegations were conclusory, unspecific, unsupported — failed objective reasonable-belief test | Held: dismissal affirmed for failure to make non-frivolous, specific allegations |
| Whether retaliation for filing EEO complaints / hostile work environment is whistleblower-protected | Young alleged removal and hostile environment in retaliation for EEO complaints and accommodation requests | Board/AJ: Title VII/EEO activity and related reprisals are not disclosures protected under § 2302(b)(8) or the covered reprisals in § 2302(b)(9)(A)(i) | Held: such claims are outside IRA jurisdiction and cannot support the appeal |
| Whether failure to accommodate disability amounted to a "substantial and specific danger to public health or safety" | Young said lack of accommodations (bad chair, malfunctioning computer, no keys) endangered her health | Board/AJ: "substantial and specific" public health/safety danger must be to the public, not merely to the individual; these facts are de minimis for § 2302(b)(8) | Held: accommodation complaints did not qualify as public health/safety disclosures; not covered |
Key Cases Cited
- Perry v. Merit Sys. Prot. Bd., 137 S. Ct. 1975 (2017) (mixed-case jurisdictional rule assigns review to district courts)
- Kloeckner v. Solis, 568 U.S. 41 (2012) (statutory scheme for MSPB review and judicial review allocation)
- Giove v. Dep’t of Transp., 230 F.3d 1333 (Fed. Cir. 2000) (objective reasonable-belief test for whistleblower disclosures)
- Ellison v. Merit Sys. Prot. Bd., 7 F.3d 1031 (Fed. Cir. 1993) (must supply substantive detail, not general allegations, to establish jurisdiction)
- Serrao v. Merit Sys. Prot. Bd., 95 F.3d 1569 (Fed. Cir. 1996) (Title VII retaliation claims are not whistleblower disclosures for IRA jurisdiction)
- Spruill v. Merit Sys. Prot. Bd., 978 F.2d 679 (Fed. Cir. 1992) (limitations on Board jurisdiction over discrimination-based claims in IRA context)
- Hicks v. Merit Sys. Prot. Bd., 819 F.3d 1318 (Fed. Cir. 2016) (WPEA and scope of reprisals covered by § 2302(b)(9)(A)(i))
- Yunus v. Dep’t of Veterans Affairs, 242 F.3d 1367 (Fed. Cir. 2001) (exhaustion requirement with OSC for IRA appeals)
- Lariscey v. United States, 861 F.2d 1267 (Fed. Cir. 1988) (narrow standards for appointment of counsel in civil appeals)