Jwyanza Reed v. Department of Health and Human Services

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JWYANZA REED,
Petitioner
v.
DEPARTMENT OF HEALTH AND HUMAN
SERVICES,
Respondent
______________________
2024-1620
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-21-0222-W-3.
______________________
Decided: January 8, 2025
______________________
JWYANZA REED, Greenbelt, MD, pro se.
ALEXANDER BREWER, Civil Division, Commercial
Litigation Branch, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BRIAN M. BOYNTON, TARA K. HOGAN, PATRICIA M.
MCCARTHY.
______________________
Before DYK, REYNA, and STOLL, Circuit Judges.
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REED v. HHS 2
PER CURIAM.
Jwyanza Reed petitions pro se from a decision of the
Merit Systems Protection Board (“Board”) sustaining an
action of the U.S. Department of Health and Human
Services (“HHS”) requiring Ms. Reed to take leave without
pay because she delayed signing a telework agreement. We
affirm.
BACKGROUND
In September 2019, Ms. Reed began working for HHS
as an Attorney Advisor in the agency’s Office of Medicare
Hearings and Appeals Arlington Field Office. Her
appointment was in the excepted service and subject to a
two-year probationary period. Her position was covered by
a collective bargaining agreement between HHS and the
National Treasury Employees Union (“NTEU”).
Before the COVID-19 pandemic, HHS maintained a
telework policy that allowed Attorney Advisors to work
remotely after 90 days of satisfactory performance. To
participate, an Attorney Advisor was required to enter into
a written telework agreement. Ms. Reed did not
participate in the program before March 2020.
On March 10, 2020, in light of evolving workplace
safety guidance from the Office of Personnel Management
(“OPM”) on the emergence of the COVID-19 pandemic,
Ms. Reed’s immediate supervisor, Administrative Law
Judge (“ALJ”) Kenneth Luciano, informed her that his
team would likely need to work remotely, and he
encouraged Ms. Reed to complete a telework agreement.
Later that day, Program Analyst Michelle Turner emailed
Ms. Reed, asking her to complete a telework agreement
and the associated training by the next day.
On March 11, 2020, Ms. Reed responded to Ms. Turner,
stating that she “was not interested in teleworking” at that
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REED v. HHS 3
time. S. App’x 20.1 That afternoon, ALJ Luciano informed
his team by email that they were required to bring home
their laptops each day in case the agency transitioned to
remote work and warned that employees who failed to
bring home their computers would be required to take
“annual leave . . . for the time the person is without the
laptop.” S. App’x 21.
That same afternoon, Carlton Drew, Director of the
Arlington Field Office, contacted Ms. Reed, inquiring about
the status of her telework agreement. Ms. Reed responded
that under the NTEU collective bargaining agreement with
HHS, “participation in the telework program is voluntary,”
and that an employee could not telework without first
certifying that he or she possessed the requisite equipment
and infrastructure to complete his or her duties from home.
S. App’x 21–22. Ms. Reed further explained that she had
“not signed a telework agreement with [her] current
supervisor,” and that she believed it would be “highly
irresponsible for [her] to certify that [she had] the
infrastructure to work from home.” S. App’x 22.
On March 17, 2020, HHS mandated remote work for
all employees. Observing that Ms. Reed had not yet
returned a completed telework agreement, ALJ Luciano
told her that she was required to use leave time until she
completed the required agreement and training. Ms. Reed
did not complete the paperwork until March 20, 2020.
On March 25, 2020, Ms. Reed returned to work and
submitted a request for leave without pay for the period of
March 17, 2020, to March 24, 2020. ALJ Luciano granted
the request. For several months thereafter, ALJ Luciano
expressed concerns with Ms. Reed’s performance. On
September 25, 2020, he sent Ms. Reed a letter notifying her
1 Citations to “S. App’x” are to the supplemental
appendix filed by the government.
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REED v. HHS 4
that her employment was terminated effective that day.
The letter explained that Ms. Reed’s termination was due
in part to her failure to timely complete her telework
agreement.
Following her termination, Ms. Reed filed a complaint
of whistleblower reprisal with the Office of Special
Counsel. She alleged that she made a protected disclosure
and engaged in a protected activity when she refused to
sign a telework agreement on the ground that, under the
NTEU collective bargaining agreement with HHS,
participation in the telework program was voluntary.
She claimed that HHS unlawfully retaliated against
her by making her take leave without pay and by
terminating her employment, among other alleged actions.
The OSC completed its investigation and issued Ms. Reed
an appeal notice. On February 5, 2021, Ms. Reed timely
filed an individual right of action appeal to the Board.
On February 21, 2023, an administrative judge (“AJ”)
of the Board issued an initial decision on Ms. Reed’s appeal.
The AJ found that Ms. Reed made a protected disclosure
under 5 U.S.C. § 2302(b)(8) on March 11, 2020, “when she
refused to sign a telework agreement on the grounds that
doing so would violate the parties’ [collective bargaining
agreement].” S. App’x 37. The AJ also found that Ms. Reed
suffered personnel actions “by virtue of her [leave-without-
pay] period and her termination,” S. App’x 39, and that
Ms. Reed’s protected disclosure was a contributing factor
with respect to both personnel actions.
Having determined that Ms. Reed had established a
prima facie case of whistleblower retaliation, the AJ
proceeded to consider whether the agency had shown by
clear and convincing evidence that it would have taken the
same action in the absence of Ms. Reed’s protected
disclosure. In making this determination, the AJ used the
Carr factors. See Carr v. Soc. Sec. Admin., 185 F.3d 1318
(Fed. Cir. 1999).
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REED v. HHS 5
The AJ concluded that HHS proved by clear and
convincing evidence that it would have forced Ms. Reed to
take leave without pay absent her protected disclosure.
Central to the AJ’s determination were the facts that the
parties’ collective bargaining agreement provided that “the
Employer may require employees to work at an alternate
site in case of emergency situations,” and the early period
of the COVID-19 pandemic met the definition of an
emergency situation. S. App’x 43. The AJ further rejected
Ms. Reed’s contention that her period of leave without pay
was unnecessarily delayed when it took HHS several days
to process her telework agreement once she finally
completed it.
In contrast, the AJ concluded that HHS failed to show
that it would have terminated Ms. Reed absent her
protected disclosure. The AJ thus granted in part Ms.
Reed’s request for corrective action and ordered HHS to
reinstate her, retroactive to September 25, 2020, with back
pay and other relief.
HHS petitioned for full Board review. Ms. Reed filed a
cross-petition concerning the adverse decision on the leave-
without-pay issue. The Board dismissed HHS’s petition,
denied Ms. Reed’s cross-petition, and affirmed the initial
decision.
Ms. Reed seeks this court’s review with respect to the
leave-without-pay issue. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(9).
DISCUSSION
We may disturb the decision of the Board only if 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 fact findings for
substantial evidence, and we give no deference to its
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REED v. HHS 6
determinations on matters of law. See Brenner v. Dep’t of
Veterans Affs., 990 F.3d 1313, 1322 (Fed. Cir. 2021). The
petitioner “bears the burden of establishing error in the
[Board’s] decision.” Jones v. Dep’t of Health & Hum. Servs.,
834 F.3d 1361, 1366 (Fed. Cir. 2016) (quoting Harris v.
Dep’t of Veterans Affs., 142 F.3d 1463, 1467 (Fed. Cir.
1998)).
On appeal, as to her leave without pay, Ms. Reed
argues that “the [Board’s] findings were erroneous”
because the Board failed to appreciate that “[t]he agency
violated the Telework Enhancement Act” when it required
her to sign a telework agreement and forced her to take
leave until she did so. Pet’r Informal Br. 8. According to
Ms. Reed, the Telework Enhancement Act’s text, purpose,
and legislative history confirm that under the Act, federal
employees may telework on a voluntary, not mandatory,
basis. Id. at 7–8. Her theory appears to be that her
employer would not have taken the same action against
her in the absence of her protected disclosures because her
employer could not have taken such action in light of the
Telework Enhancement Act. Id. at 6–8. We are not
persuaded.
There is no merit to Ms. Reed’s argument that HHS
violated the Telework Enhancement Act when it required
her to take leave without pay after she refused to sign a
telework agreement. The Act requires agencies to
establish telework policies, determine employees’ eligibility
for telework, and notify employees of their eligibility. 5
U.S.C. § 6502(a). To participate in telework, eligible
employees must enter into a written agreement with their
agency employer that “outlines the specific work
arrangement that is agreed to.” Id. § 6502(b)(2). OPM has
generally interpreted the Act to mean that employee
participation in a telework program is voluntary. See Pet’r
Informal Br. 7–8 (citing Telework FAQ, U.S. OFF. OF PERS.
MGMT., https://www.opm.gov/faq/telework/Can-an-agency-
force-an-employee-to-work-at-home.ashx (last accessed
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Dec. 17, 2024)); see also U.S. OFF. OF PERS. MGMT., 2021
GUIDE TO TELEWORK AND REMOTE WORK IN THE FEDERAL
GOVERNMENT (2021). However, as we have previously
recognized, the Act also requires agencies to “incorporate
telework into the continuity of operations plans of that
agency,” which will “supersed[e] any telework policy” for
the duration of time that the continuity of operations plan
is in place. Carter v. Dep’t of Def., No. 2022-1305, 2022 WL
2128592, at *3 (Fed. Cir. June 14, 2022) (unpublished), cert
denied, 143 S. Ct. 490 (2022) (quoting 5 U.S.C. § 6504(d)).
Here, HHS issued continuity of operations guidelines
on March 16, 2020, which mandated that:
All employees must be on an approved telework
agreement (regular/recurring or episodic).
Managers are responsible for ensuring employees
have approved telework agreements. Employees
must be telework ready by having their
government issued computer, phone headset
(recommended), PIV card, and external card reader
(if applicable). Managers are responsible for
ensuring employees are telework ready.
S. App’x 24. HHS transitioned to remote work the next day,
March 17, 2020. This continuity of operations plan
superseded HHS’s previous telework policies and, in no
uncertain terms, required all employees to enter telework
agreements, in conformance with the requirements of the
Act. We therefore cannot agree with Ms. Reed that the
Board’s “findings were erroneous,” Pet’r Informal Br. 8,
because HHS did not violate the Telework Enhancement
Act by requiring her to work remotely during the
pandemic. See Carter, 2022 WL 2128592, at *3–5.2
2 We also reject Ms. Reed’s argument that the Board
erred by not permitting her to file a reply brief. She was
not automatically entitled to file a reply, and the Board did
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REED v. HHS 8
We have considered the remainder of Ms. Reed’s
arguments and find them unpersuasive.
AFFIRMED
Costs
No costs.
not err in this regard. “Procedural matters regarding
discovery and evidentiary issues ‘fall within the sound
discretion of the [B]oard and its officials.’” Rueter v. Dep’t
of Com., 63 F.4th 1357, 1371 (Fed. Cir. 2023) (alteration in
original) (quoting Curtin v. Off. of Pers. Mgmt., 846 F.2d
1373, 1378 (Fed. Cir. 1988)). Ms. Reed does not establish
that the denial of her motion was an abuse of discretion,
much less that the Board’s alleged error was harmful.
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