Stern v. DVA

Case: 20-2192 Document: 45 Page: 1 Filed: 06/11/2021

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

ERIN STERN, Petitioner

v.

DEPARTMENT OF VETERANS AFFAIRS, Respondent ______________________

2020-2192 ______________________

Petition for review of the Merit Systems Protection Board in No. NY-1221-19-0193-W-1. ______________________

Decided: June 11, 2021 ______________________

ERIC LEE SIEGEL, Kalbian Hagerty LLP, Washington, DC, for petitioner. DOMENIQUE GRACE KIRCHNER, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, for respondent. Also represented by BRIAN M. BOYNTON, ALLISON KIDD-MILLER, ROBERT EDWARD KIRSCHMAN, JR. ______________________

Before MOORE, Chief Judge, LOURIE and DYK, Circuit Judges. PER CURIAM.

Case: 20-2192 Document: 45 Page: 2 Filed: 06/11/2021 2 STERN v. DVA

Erin Stern appeals the Merit System Protection Board’s (“Board”) dismissal of her hostile work environ- ment claim for lack of jurisdiction. We affirm. BACKGROUND From about 2012 to November 2018, Ms. Stern worked as a Military Service Coordinator (MSC) with the Depart- ment of Veterans Affairs (“VA” or “agency”). 1 MSCs are responsible for the timely development of Integrated Disa- bility Evaluation System (IDES) compensation claims. The IDES integrates the Department of Defense’s (DoD) and VA’s disability processes by creating a single file of medical examinations that can be used to determine a soldier’s fit- ness for duty, disability rating, and entitlement to disabil- ity benefits. It is undisputed that Ms. Stern generally did not meet agency deadlines for processing IDES files. Ms. Stern maintained that the delay was caused by her unwillingness to improperly process files with incomplete medical rec- ords. She therefore “engaged in numerous disputes” with the agency concerning the timeliness of her IDES claims. J.A. 3. Ms. Stern made protected disclosures to her super- visor, alleging that Army Physical Evaluation Board Liai- son Officers, who also work on IDES claims, were violating regulations governing the IDES process. In addition to her disclosures relating to the IDES pro- cess, Ms. Stern made protected disclosures and engaged in disputes with the agency regarding workplace safety, poor treatment by coworkers, allegations of sexual harassment

Case: 20-2192 Document: 45 Page: 3 Filed: 06/11/2021 STERN v. DVA 3

and sex-based discrimination, changes to her performance evaluation, and delays in the accommodation of her disa- bilities. The agency proposed to remove Ms. Stern from federal service on January 22, 2019, for failure to comply with supervisor instructions, conduct unbecoming a federal employee, and unreasonable delay in carrying out instruc- tions. This proposed removal was rescinded in February 2020. On January 10, 2019, Ms. Stern filed a whistleblower complaint with the Office of Special Counsel (“OSC”) alleg- ing numerous protected disclosures and reprisals. OSC in- vestigated Ms. Stern’s complaint. While OSC did not act on Ms. Stern’s complaint as to the allegations involved here, it granted her the right to appeal. 2 OSC’s letter au- thorizing appeal listed ten agency actions that Ms. Stern alleged were taken in reprisal for her protected disclosures and activities, including the “[c]reation of a hostile work environment (including conduct that occurred outside your duty station, such as calling the police to your home to per- form a wellness check).” J.A. 189. Ms. Stern filed an individual right of action (“IRA”) whistleblower appeal before the Board. On September 20, 2019, although determining that some of Ms. Stern’s claims of retaliation were non-frivolously alleged, the ad- ministrative judge determined that Ms. Stern had not non- frivolously alleged that she was subjected to a hostile work environment in reprisal for protected activity. The administrative judge held a hearing on the various claims over which she found jurisdiction. In an initial de- cision on April 14, 2020, the administrative judge deter- mined that the agency had demonstrated non-retaliatory

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motives for (1) ordering Ms. Stern to work from home, (2) changing her work duties, (3) denying her access to certain tools of her MSC position, (4) giving her a “fully successful” performance rating, and (5) denying her a performance award. However, the administrative judge determined that the agency did not demonstrate a non-retaliatory motive for some of the charges in Ms. Stern’s notice of proposed removal (such as failure to comply with a supervisor’s in- structions and displaying “disrespectful and rude behavior toward [her] immediate supervisor in email correspond- ence”). J.A. 26. The administrative judge’s decision became the final decision of the Board on May 19, 2020. Ms. Stern peti- tioned for review, challenging only the Board’s dismissal of her hostile work environment claim. We have jurisdiction under 28 U.S.C. § 1295(a)(9). DISCUSSION This Court must affirm the Board’s decision unless it is found to be “(1) arbitrary, capricious, an abuse of discre- tion, 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 ev- idence.” 5 U.S.C. § 7703(c). However, “we review the Board’s conclusion concerning its own jurisdiction without deference.” Holderfield v. Merit Sys. Prot. Bd., 326 F.3d 1207, 1208 (Fed. Cir. 2003). The Board has jurisdiction over an IRA appeal if the appellant exhausted administrative remedies before the OSC and makes nonfrivolous allegations that (1) she en- gaged in whistleblowing activities by making a protected disclosure or engaging in protected activity under 5 U.S.C. § 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D), and that (2) the disclosure was a contributing factor in the agency’s deci- sion to take a personnel action as defined by 5 U.S.C.

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§ 2302(a). Cahill v. Merit Sys. Prot. Bd., 821 F.3d 1370, 1373 (Fed. Cir. 2016). A hostile work environment can constitute a personnel action for purposes of the Whistleblower Protection Act. See Sistek v. Dep’t of Veterans Affs., 955 F.3d 948, 955 (Fed. Cir. 2020) (noting that a hostile work environment can be actionable as a significant change in working conditions under the statute). Here, the Board determined that Ms. Stern “did not nonfrivolously allege the agency harassed her in reprisal for protected activity” because the conduct alleged did “not approach the threshold of severe or perva- sive abuse” required to establish a hostile work environ- ment. J.A. 48. It therefore declined to hold a hearing on her hostile work environment claim. I We first address whether the Board erred by refusing to hold a hearing on Ms. Stern’s allegation that she was subjected to a hostile work environment because she was “denied courteous treatment” by supervisors and co-work- ers as a result of her disclosures relating to IDES claims processing, J.A. 215, and her allegations that she was sub- jected to a wellness check and proposed removal. As to dis- courteous treatment, Ms. Stern alleged as follows: The IDES office and [VA] managers have been bi- ased in favor of my MSC and Army co-workers, who were permitted to break the IDES rules and regu- lations without consequence, and I was repeatedly pitted against them by blaming me for causing timeline delays in IDES claims-processing, where I was adhering to the strict letter of the IDES law, rules and regulations. Id. She also noted that “hostility [was] directed towards [her] as a result of [her] pushing back against those who did not follow IDES rules and regulations, as required by law.” Id.

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We see no error as to the Board’s determination that these allegations of discourteous treatment, even when combined with the wellness check claim and the charges in the proposed removal, did not rise to the level of severe and pervasive conduct needed to establish a hostile work envi- ronment. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993) (explaining in the context of a Title VII claim that “whether an environment is ‘hostile’ or ‘abusive’ can be de- termined only by looking at all the circumstances,” such as “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably in- terferes with an employee’s work performance”). II Ms. Stern alleges that various other agency actions cre- ated a hostile work environment. As to these, whether or not the Board erred in determining that Ms. Stern failed to non-frivolously allege that these actions created a hostile work environment, any such error was harmless. Ms. Stern “failed to establish any reason why the outcome could have been different had the Board” conducted a hearing on the hostile work environment claim. Sistek, 955 F.3d at 955–56 (finding harmless error when the Board failed to address whether an allegedly retaliatory investigation con- stituted a personnel action under the Whistleblower Pro- tection Act because the appellant failed to establish that the challenged action constituted “a significant change of working conditions”). 3

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Under these circumstances, any error by the Board in not holding a hearing on her hostile work environment claim to consider these allegations was harmless. AFFIRMED COSTS No costs.

Footnotes

[1] On August 1, 2018, Ms. Stern requested a 100% tel- ework position. Since November 2018, Ms. Stern has held a modified duty position with the VA that lets her telework from home. Ms. Stern has challenged the propriety of this modified duty position in a separate federal district court proceeding.

[2] Before an employee may pursue an individual right of action appeal before the Board, the employee must first seek corrective relief from OSC. See 5 U.S.C. § 1214(a)(3).

[3] See also Trobovic v. Merit Sys. Prot. Bd., 232 F. App’x 958, 963–64 (Fed. Cir. 2007) (finding that the admin- istrative judge erred in failing to address appellant’s spe- cific hostile work environment allegations, but determining “that the Board’s dismissal was proper” because “[t]he con- duct that [the appellant] identifie[d], while regrettable if it occurred, is not sufficiently severe or pervasive to satisfy STERN v. DVA 7 A hostile work environment claim under the Whistle- blower Protection Act must be proven based on actions that were themselves taken in retaliation for a protected disclo- sure or activity. See, e.g., Mikaia v. Dep’t of Com., No. DC-1221-17-0794-W-2, 2018 MSPB LEXIS 4411, at *39 (M.S.P.B. Nov. 16, 2018) (determining that identified personnel actions must be excluded from a hostile work en- vironment claim because they predated any protected dis- closure and thus could not have been retaliatory), aff’d 809 F. App’x 899 (Fed. Cir. 2020); see also Kitlinski v. Merit Sys. Prot. Bd., 857 F.3d 1374, 1381 (Fed. Cir. 2017) (determin- ing that the appellant failed to non-frivolously allege a hos- tile work environment in violation of the Uniformed Services Employment and Reemployment Rights Act be- cause he did not present “an allegation of anti-military an- imus as the basis for creating a hostile work environment”). Most of the other agency actions identified in Ms. Stern’s jurisdictional declaration and not expressly ad- dressed by the Board were not alleged to be taken in re- prisal for protected activities. At the same time, the Board found after a hearing that the agency had non-retaliatory motives for taking the remaining non-frivolously alleged reprisals: (1) ordering Ms. Stern to work from home, (2) changing her work duties, (3) denying her access to cer- tain tools of her MSC position, (4) giving her a “fully suc- cessful” performance rating, (5) denying her a performance award, and (6) charging her with (a) exercising poor cus- tomer service, (b) yelling at a DoD Supervisor, (c) being rude and combative toward the Assistant Veterans Service Center Manager, and (d) displaying disrespectful and rude behavior toward her immediate supervisor. the demanding legal standard of proving that the [agency] intentionally created a hostile work environment that would have coerced an employee . . . to absent himself from work”).