KEVIN J. BARRETT v. DEPARTMENT OF VETERANS AFFAIRS
DOCKET NUMBER SF-1221-16-0632-W-1
UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
DATE: April 27, 2023
Cathy A. Harris, Vice Chairman; Raymond A. Limon, Member
THIS FINAL ORDER IS NONPRECEDENTIAL
Glen E. Woodworth, Esquire, Anchorage, Alaska, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which dismissed for lack of jurisdiction his request for corrective action in an individual right of action (IRA) appeal. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings
BACKGROUND
¶2 The appellant has served as a Nurse Practitioner at the agency‘s Alaska Healthcare System since September 2014. Initial Appeal File (IAF), Tab 6 at 304-05. On December 30, 2015, the appellant filed a complaint with the Office of Special Counsel (OSC) in which he alleged that the agency had retaliated against him for whistleblowing. IAF, Tab 1 at 10-30. In his complaint, the appellant alleged that he had made two disclosures: (1) on September 4, 2015, he had disclosed to his first-level supervisor “the denial of OT/CT in order to complete excessive labor,” and (2) on May 21, 2015, he disclosed to his first-level supervisor that he had “been receiving threats for adding OT/CT to complete the work given.”2 Id. at 21-22. The appellant also alleged that the agency had improperly extended the length of his service obligation under a relocation incentive agreement, and that his first-level supervisor had “created a continuous toxic and hostile work environment” in which she treated him
¶3 By letter dated June 8, 2016, the CEU notified the appellant that it had made a preliminary determination to close its inquiry into his complaint and provided him with an opportunity to respond within 13 days of the date of the letter.4 Id. at 13-15. On June 28, 2016, the CEU notified the appellant that, having received no comments to its June 8, 2016 letter, it was closing its file. IAF, Tab 1 at 9. On July 7, 2016, the appellant‘s representative sent OSC a letter alleging that the appellant was subjected to five additional prohibited personnel practices and requesting that they be included in the investigation or supplemental
¶4 On July 15, 2016, the appellant filed an IRA appeal alleging that he was subjected to nine actions that constituted prohibited personnel practices. IAF, Tab 1 at 1-8. The administrative judge issued an order notifying the appellant of the elements and burdens of proof to establish Board jurisdiction over his IRA appeal and ordering him to file evidence and argument demonstrating jurisdiction. IAF, Tab 3 at 2-8. The appellant filed a response to the order in which he alleged that he was subjected to prohibited personnel practices after he disclosed deficiencies in the care and treatment of patients. IAF, Tab 5 at 1-6, 134-35. His response described eight communications to agency officials that he alleged took place: (1) during a May 25, 2015 meeting; (2) in a June 11, 2015 email; (3) during a July 15, 2015 meeting; (4) in a July 15, 2015 email; (5) during a July 16, 2015 meeting; (6) in a September 17, 2015 email; (7) during a November 5, 2015 meeting; and (8) in a set of emails spanning November 5 and 6, 2015. Id. at 134-35.5 The appellant alleged that the first seven communications “concern the increasing number of patient alerts caused by the staffing shortages in the Department and [his first-level supervisor‘s] failure to authorize sufficient CT/OT to resolve the backlog of patient alerts,” which he made because he believed his first-level supervisor‘s “patient assignment practices presented a real and substantial danger to the health and safety of the veterans/patients.” Id. The eighth communication was comprised of communications made by other agency staff. Id. at 135. The agency filed a response, arguing that the appellant had not made nonfrivolous allegations that he
¶5 The administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction based on the written record. IAF, Tab 7, Initial Decision (ID). The administrative judge first found that, of the eight communications the appellant alleged were protected, he had nonfrivolously alleged that the four communications he purportedly made to agency officials during meetings on May 25, July 15-16, and November 5, 2015, were protected disclosures. ID at 5-6.
¶6 She found that, as to the four remaining communications, the appellant did not nonfrivolously allege that he reasonably believed the communication evidenced a violation of a law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. ID at 6-8. Rather, the administrative judge found that three of the communications, emails the appellant sent to agency officials on June 11, July 15, and September 17, 2015, merely reflected his requests for overtime and a reduced caseload, and summarized a conversation with his supervisors about his performance. Id. Further, the administrative judge found that the appellant failed to nonfrivolously allege that the November 5 and 6, 2015 emails sent by other staff members were protected because he did not make the disclosures. ID at 8. Thus, the administrative judge found that the four disclosures were not protected.
¶7 The administrative judge then found that the appellant did not prove exhaustion of his administrative remedies before OSC concerning the four disclosures that he had nonfrivolously alleged were protected. ID at 8-12. She found that the appellant‘s complaint and correspondence to OSC did not reflect that he notified OSC of his July 16, 2015 or November 5, 2015 communications. ID at 9. She also found that the appellant mentioned his May 25 and July 15, 2015 meetings to OSC but did not provide OSC with a
¶8 The appellant has filed a petition for review in which he argues that the administrative judge erred in finding that certain disclosures regarding patient safety were not protected and asserts that he provided OSC with a sufficient basis on which to conduct an investigation that might lead to corrective action. Petition for Review (PFR) File, Tab 1 at 2-11. The agency has responded in opposition to the petition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶9 To establish Board jurisdiction over an IRA appeal brought pursuant to the Whistleblower Protection Enhancement Act of 2012 (WPEA), the appellant must exhaust his administrative remedies before OSC and make nonfrivolous allegations that: (1) he made a protected disclosure described under
(holding that an employee is not entitled to a jurisdictional hearing in an IRA appeal) (citing Spencer v. Department of the Navy, 327 F.3d 1354, 1356 (Fed. Cir. 2003)).
¶10 The Board‘s jurisdictional inquiry generally begins by examining whether the appellant has shown that he exhausted his administrative remedies before OSC, as the Board‘s jurisdiction over an IRA appeal is limited to those issues raised before OSC. See Ellison v. Merit Systems Protection Board, 7 F.3d 1031, 1037 (Fed. Cir. 1993) (holding that the Board correctly declined to consider allegations of disclosures not clearly raised before OSC)7; Miller v. Federal Deposit Insurance Corporation, 122 M.S.P.R. 3, ¶ 6 (2014) (“The first element of Board jurisdiction over an IRA appeal is exhaustion by the appellant of his administrative remedies before OSC“), aff‘d, 626 F. App‘x 261 (Fed. Cir. 2015). The administrative judge in this case first addressed whether the appellant made a nonfrivolous allegation that the eight communications at issue were protected disclosures and subsequently addressed exhaustion regarding the four disclosures that she found the appellant had nonfrivolously alleged were protected. ID at 4-12. The administrative judge nevertheless correctly found that the appellant failed to make a nonfrivolous allegation that he made protected disclosures in the June 11, July 15, September 17, and November 5 and 6, 2015 email communications, and that he failed to exhaust his administrative remedies concerning the disclosures he allegedly made during meetings with agency officials on May 25, July 15-16, and November 5, 2015, warranting dismissal of the entire appeal for lack of jurisdiction. Id. Accordingly, we first address the appellant‘s arguments regarding his alleged protected disclosures and then turn to
The administrative judge correctly found that the appellant did not make a nonfrivolous allegation that he made protected disclosures in the June 11, July 15, September 17, and November 5 and 6, 2015 email communications.
¶11 On review, the appellant argues that the administrative judge erred in finding that he did not nonfrivolously allege that four email communications regarding patient alerts evidenced a substantial and specific danger to public health or safety. PFR File, Tab 1 at 2-9. He contends that his concerns about unanswered patient alerts constituted imminent safety concerns “given that treatment delays, mis-diagnosis and medical complications which [sic] could reasonably be expected to occur within a matter of hours or even minutes.” Id. at 4.
¶12 A nonfrivolous allegation of a protected disclosure is an allegation of facts that, if proven, would show that the appellant disclosed a matter that a reasonable person in his position would believe evidenced one of the categories of wrongdoing specified in
¶13 In determining whether a disclosure evidenced a substantial and specific danger to public health or safety, it is relevant for the Board to consider factors such as: (1) the likelihood of harm resulting from the danger; (2) the imminence of the potential harm; and (3) the nature of the potential harm. Parikh v. Department of Veterans Affairs, 116 M.S.P.R. 197, ¶ 14 (2011) (citing Chambers v. Department of the Interior, 515 F.3d 1362, 1369 (Fed. Cir. 2008)).
¶14 We conclude that the administrative judge properly found that the appellant did not make a nonfrivolous allegation that he disclosed a matter that a reasonable person in his position would believe evidenced a substantial and specific danger to public health or safety in his June 11, July 15, and September 17, 2015 emails to his supervisors. ID at 6-8. Although the appellant now contends that these communications conveyed imminent patient safety concerns, the emails do not detail facts giving rise to a reasonable expectation of harm to patients that would likely result in the reasonably foreseeable future. The appellant‘s June 11, 2015 email to his first-level supervisor and the facility Chief Nursing Officer states that he stayed to catch up on his alerts because “I could not stand looking at them building up,” and does not communicate anything more than the appellant‘s personal desire to reduce his alerts and receive overtime hours and pay for staying late to do so. IAF, Tab 5 at 30. Similarly, the appellant‘s July 15, 2015 email to his supervisors, which was sent in response to his first-level supervisor‘s email memorializing two meetings she conducted regarding his performance, also does not reference harm to patients.8 Id. at 31-32; IAF, Tab 6 at 246. The only reference the appellant makes to patient care is in response to his supervisor‘s
¶15 Nor can we agree with the appellant‘s suggestion that the mere mention of
¶16 Finally, the administrative judge properly found that the November 5 and 6, 2015 email communications made by other agency staff did not constitute a protected disclosure because the appellant did not make the disclosure. ID at 8. Although the appellant was copied on these communications, he was not the source of the communications, thus the communications themselves were not protected disclosures under
The administrative judge properly found that the appellant did not exhaust his administrative remedies before OSC concerning his alleged disclosures during meetings with agency officials on May 25, July 15-16, and November 5, 2015.
¶17 On review, the appellant also disputes the administrative judge‘s findings that, as to the four disclosures that he had nonfrivolously alleged were protected, he failed to exhaust his administrative remedies before OSC. PFR File, Tab 1 at 9-11. Under
¶18 The appellant argues that he provided OSC with a sufficient basis on which to pursue an investigation as to each of his alleged disclosures when he informed OSC that unanswered patient alerts represented a substantial and specific danger to the health and safety of the agency‘s patients. PFR File, Tab 1 at 9-11. We agree with the administrative judge that the appellant did not prove exhaustion regarding his alleged disclosures during meetings with agency officials on May 25, July 15-16, and November 5, 2015. ID at 8-12.
¶19 As to the appellant‘s July 16, 2015 communication to his second-level supervisor and his November 5, 2015 communication to his first-level supervisor, our review of the appellant‘s OSC complaint and supplemental correspondence reflects, as the administrative judge found, that there is no mention of either
¶20 The appellant contends that the emails he submitted to OSC “directly concern Appellant‘s growing apprehension and fear that the escalating number of unanswered patient alerts represented a substantial and specific danger to the health and safety of VA patients under his care,” but his correspondence to OSC does not mention such a concern. PFR File, Tab 1 at 10. The appellant‘s references to alerts and patients occur in the context of his workload, which he contends he was unable to manage, but these references do not articulate a danger to patient health and safety. The appellant‘s September 17, 2015 email to his supervisor is perhaps the most descriptive of patient care, but as discussed above, it fails to connect patient care with a concern about patient health or safety, and we cannot conclude that this email or any other communication to OSC provided sufficient facts for OSC to pursue an investigation into a substantial and specific danger to the health and safety of the agency‘s patients. IAF, Tab 5 at 46.
¶21 On review, the appellant also cites to his November 19, 2015 EEO complaint in support of his argument that he advised OSC that factors such as “double booking of patients, staffing shortages, reduced triage times and increased patient load” contributed to an imminent concern for patient safety, but we do not find that his EEO complaint put OSC on notice of any disclosure regarding a substantial and specific danger to public health or safety. PFR File, Tab 1 at 10-11. Although the EEO complaint references the effect that case assignments have on patient care, treatment, and safety, there is no suggestion in the EEO complaint that the appellant made such a disclosure outside of the complaint; rather, his EEO complaint focuses on his allegation of disparate treatment on the basis of race in case assignments. IAF, Tab 5 at 128-30. Additionally, although the appellant asserts on review that he provided the EEO complaint to OSC, there is no evidence that he in fact submitted it to OSC. Each of the other documents the appellant asserts he provided to OSC consist of an email showing the date on which he sent the document to the OSC investigator and documents referenced in the email. However, there is no such email or other evidence showing that he sent the EEO complaint to the investigator, nor does the appellant attest to sending the EEO complaint to OSC in the sworn affidavit he submitted in support of his jurisdictional response. Compare IAF, Tab 5 at 16-127, 134-35, with IAF, Tab 5 at 128-30. Thus, the appellant has not established that he provided his EEO complaint to OSC or that it was sufficient to put OSC on notice that he disclosed a substantial and specific danger to public health or safety.
¶22 The appellant also provided a July 7, 2016 letter from his attorney to OSC, which contends that “his immediate supervisor also increased his case loan [sic] and reduced patient consultation time periods which directly compromised patient safety during the period May 25, 2015 through January, 2016“; however, this language does not suggest that he communicated this purported compromise of patient safety to his supervisor or other agency official. IAF, Tab 5 at 132-33.
¶23 Even if the appellant had provided sufficient facts to OSC to investigate wrongdoing, the July 16 and November 5, 2015 communications were new allegations outside of any core claims he made to OSC. Although an appellant may add further detail to his claims before the Board, he must first provide OSC with a sufficient basis to pursue an investigation. Chambers, 2022 MSPB 8, ¶ 10. The appellant‘s complaint to OSC mentioned that he notified his second-level supervisor about his overtime complaints sometime after July 29, 2015, but there is no indication that the appellant made any disclosure of a substantial and specific danger to patient health or safety to his second-level supervisor prior to that date; thus, OSC would not have had sufficient facts to pursue an investigation of this prior alleged disclosure. IAF, Tab 1 at 17; see, e.g., McCarthy v. Merit Systems Protection Board, 809 F.3d 1365, 1374 (Fed. Cir. 2016) (concluding the appellant did not provide OSC with a sufficient basis to pursue an investigation concerning four legal memoranda written by the appellant when the memoranda identified “different disclosures, made to different people, at different times” than those disclosures identified in the appellant‘s OSC complaint). Similarly, the appellant‘s complaint and correspondence to OSC do not identify any disclosures occurring after September 2015; accordingly, he did not provide OSC with sufficient facts to investigate subsequent disclosures, such as his alleged November 5, 2015 disclosure.
¶24 We also agree with the administrative judge that, regarding the appellant‘s alleged disclosures during meetings on May 25 and July 15, 2015, although the
¶25 Accordingly, we affirm the initial decision on the grounds that the appellant failed to make a nonfrivolous allegation that he made protected disclosures as to four of his communications to agency officials, and as to the remaining four communications, he failed to exhaust his administrative remedies before OSC, warranting dismissal of his IRA appeal for lack of jurisdiction.
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(1) Judicial review in general. As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision.
If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address:
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Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court‘s website, www.cafc.uscourts.gov. Of particular relevance is the court‘s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court‘s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The
Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD:
/s/ for Jennifer Everling Acting Clerk of the Board
Washington, D.C.