McHugh v. Dep't of Veterans Affairs
| Decision Date | 17 April 2023 |
| Docket Number | 2022-2127 |
| Parties | JAMES MCHUGH, Petitioner v. DEPARTMENT OF VETERANS AFFAIRS, Respondent |
| Court | U.S. Court of Appeals — Federal Circuit |
This disposition is nonprecedential.
Petition for review of the Merit Systems Protection Board in No. CH-1221-21-0212-W-2.
JAMES JOSEPH MCHUGH, Marion, IN, pro se.
BRYAN MICHAEL BYRD, Commercial Litigation Branch, Civil Division United States Department of Justice, Washington, DC, for respondent. Also represented by BRIAN M. BOYNTON, ELIZABETH MARIE HOSFORD, PATRICIA M. MCCARTHY.
Before PROST, WALLACH, and CHEN, Circuit Judges.
James McHugh appeals the final decision of the Merit Systems Protection Board ("Board"), which concluded that he failed to establish a prima facie case of whistleblower retaliation by the Department of Veterans Affairs ("Agency") and denied his Individual Right of Action ("IRA") bifurcated appeal that requested corrective action under the Whistleblower Protection Act of 1989 and the Whistleblower Protection Enhancement Act of 2012 (collectively "WPA"). McHugh v. Dep't of Veterans Affs., No. CH-1221-21-0212-W-2, 2022 WL 1521359 ("Final Decision")[1] (VA Appx. 1-12).[2] We affirm.
On March 3, 2019, the Agency hired Mr. McHugh as a Food Service Worker Supervisor, stating on the Standard Form ("SF") 50 documenting the hiring that this was a "supervisory (or managerial) position" subject to a one-year probationary period beginning that day. VA Appx. 2 34. During this probationary period, the Agency promoted Mr McHugh to Supervisory Health Technician Dietetic on October 27, 2019, and the SF 50 documenting the promotion noted that the promotion came with a one-year probationary period effective the same day as the promotion. Consequently, the SF 50 for the promotion did not credit Mr. McHugh for completing nearly eight months of his probationary period under the first SF 50 and instead reset the clock.
On September 24, 2020, Mr. McHugh acknowledged his receipt of the Agency's letter dated the day before and titled "Failure to Satisfactorily Complete Supervisory Probationary Period" ("Demotion Notice"), which demoted him for two specifications: (1) a July 14, 2020 altercation with a coworker, where Mr. McHugh "behaved inappropriately during operations yelling aggressively and not choosing to de-escalate the situation to the point where the Food Service Systems Manager, Jeremy Parsons had to step in[,]" and (2) a June 15, 2020 "Admonishment for Inappropriate Behavior" for engaging in an "inappropriate conversation with a co-worker." VA Appx. 36. After receiving the Demotion Notice, Mr. McHugh requested ten days of administrative leave to regroup and gather his thoughts because of the demotion. On September 25, 2020, the Agency approved ten days of annual leave, telling Mr. McHugh that he could not use administrative leave. On September 26, 2020, the demotion became effective, and two days later, Mr. McHugh requested that the Agency reconsider the demotion on September 28, 2020.
Sometime between September 23, 2020 and September 29, 2020, Mr. McHugh filed a complaint with the U.S. Office of Special Counsel ("OSC") that alleged he had experienced a hostile work environment and had been demoted. See VA Appx. 3-4.[3] On October 2, 2020, the OSC attorney notified Mr. McHugh that his OSC complaint kept his anonymity and did not authorize her to reach out to the Agency with questions. Mr. McHugh that same day replied to the OSC attorney, consenting to no longer be anonymous and allowing the OSC attorney to reach out to the Agency.
On October 15, 2020, the reconsideration meeting was held, and the following participated: Mr. McHugh, James Hall (Cincinnati VAMC Associate Deputy Director), Charles Smith (Mr. McHugh's Union Representative), and Adriana Carter (VISN 10 Human Resources ELR Specialist). At this reconsideration meeting, Mr. Smith requested that the Agency either mitigate or rescind the demotion when he raised the concern that Mr. McHugh's probationary period ended before the Demotion Notice's issuance. The next day, on October 16, 2020, the Agency mitigated Mr. McHugh's demotion and issued a reprimand ("Reprimand") instead.
On March 20, 2021, Mr. McHugh filed an IRA appeal with the Board. The Board's administrative judge ("AJ") dismissed the appeal without prejudice to allow Mr. McHugh to first exhaust with the OSC the claims raised before the Board. Mr. McHugh re-filed his appeal with the Board on October 15, 2021, and the AJ ruled on February 1, 2022, that the Board only had jurisdiction over the issue of whether the Agency issued its reprimand of Mr. McHugh in retaliation for his complaint to the OSC.
On February 8, 2022, the AJ issued an order suspending case processing for thirty days beginning February 8, 2022, and ending March 10, 2022, to allow the parties to complete discovery and prepare for the hearing. SAppx. 14.[4] The order did not alter any pending deadline.
On March 25, 2022, Mr. McHugh filed a motion to compel discovery before the AJ, four days before the scheduled merits hearing in the matter. The AJ denied the motion to compel as untimely and failing to comply with other regulations of the Board as well.[5]
On March 29, 2022, the AJ held a merits hearing[6] to address whether Mr. McHugh had made out a prima facie case of whistleblower retaliation. On May 11, 2022, the AJ delivered an Initial Decision on behalf of the Board, finding Mr. McHugh had not made out a prima facie case of whistleblower retaliation because there was no evidence at the March 29, 2022 hearing that any person involved in the decision to reprimand Mr. McHugh in October 2020 had any contemporaneous knowledge of Mr. McHugh's OSC complaint. Thus, Mr. McHugh's request to the Board for corrective action was denied.
Mr. McHugh then timely filed this appeal. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
We must affirm the Board's final decision unless it is "(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence." 5 U.S.C. § 7703(c). "We review the Board's legal determinations de novo and its factual findings for substantial evidence." Bannister v. Dep't of Veterans Affs., 26 F.4th 1340, 1342 (Fed. Cir. 2022). Substantial evidence "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938).
Mr. McHugh disputes that he failed to present a prima facie case of whistleblower retaliation. Certain whistleblowing disclosures or activities made by an employee are protected under the WPA, which prohibits the agency from taking a personnel action against that employee as a response. See 5 U.S.C. § 2302(b)(8)-(9). The Board will order a corrective action, as it considers appropriate, for certain statutorily described prohibited personnel practices if the employee demonstrates that a disclosure or protected activity under the WPA was a "contributing factor in the personnel action which was taken or is to be taken against" the employee. 5 U.S.C. § 1221(e)(1) (citing 5 U.S.C. § 2302(b)(8), (b)(9)(A)(i), (b)(9)(B)-(D)). The employee establishes a prima facie case of whistleblower retaliation with a showing by a preponderance of evidence that the employee made a protected disclosure or engaged in a protected activity, and that the disclosure or protected activity contributed to the agency's personnel action against the employee. See Rickel v. Dep't of the Navy, 31 F.4th 1358, 1364 (Fed. Cir. 2022); see also 5 U.S.C. § 1221(e). If the employee makes out a prima facie case, the burden then shifts to the agency to "show by clear and convincing evidence that it would have taken 'the same personnel action in the absence of such disclosure'" or activity. Rickel, 31 F.4th at 1364 (citations omitted).
The AJ recognized that filing an OSC complaint is a protected activity and that Mr. McHugh's subsequent reprimand by the Agency was a qualifying personnel action. See VA Appx. 8-9 (). However, the AJ found that Mr. McHugh failed to establish how his protected activity of filing an OSC complaint was a "contributing factor" for the Agency's personnel action of reprimanding him. Id. at 9.
We acknowledge that an employee may establish a "contributing factor" through the so-called knowledge/time test using circumstantial evidence, such as "(A) the official taking the personnel action knew of the disclosure or protected activity; and (B) the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure or protected activity was a contributing factor in the personnel action." 5 U.S.C. § 1221(e)(1)(A)-(B).
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