Dichondra V. Bowden v. Department of Veterans Affairs

N OTE : This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DICHONDRA V. BOWDEN,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2024-1968
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-1221-18-0323-W-1.
______________________
Decided: May 15, 2025
______________________
DICHONDRA V. B OWDEN, Moreno Valley, CA, pro se.
LAURA OFFENBACHER A RADI , Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent. Also represented by
R EGINALD THOMAS B LADES, JR ., PATRICIA M. MC CARTHY,
Y AAKOV R OTH .
______________________
Before T ARANTO, C HEN, and HUGHES, Circuit Judges.
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BOWDEN v. DVA 2
P ER C URIAM .
Dichondra V. Bowden petitions for review from the fi-
nal decision of the Merit Systems Protection Board (Board),
which denied Ms. Bowden’s individual right of action (IRA)
appeal and concluded that the United States Department
of Veterans Affairs (VA) met its burden to show that it
would have removed Ms. Bowden notwithstanding
Ms. Bowden’s protected disclosures. See Bowden v. Dep’t
of Veterans Affs., No. SF-1221-18-0323-W-1, 2024 WL
1619380 (M.S.P.B. Apr. 12, 2024) (Modified Decision);
Bowden v. Dep’t of Veterans Affs., No. SF-1221-18-0323-W-
1, 2018 WL 3349544 (M.S.P.B. July 5, 2018) (SAppx 20–
39)1 (Initial Decision).2 For the following reasons, we af-
firm.
B ACKGROUND
Ms. Bowden was a Nursing Assistant at a VA Commu-
nity Living Center in Loma Linda, California. On July 17,
2017, she filed a complaint with the United States Office of
Special Counsel (OSC), alleging that the VA terminated
her employment as retaliation for whistleblowing. After
the OSC concluded its investigation, Ms. Bowden appealed
to the Board. Ms. Bowden cited to three emails she sent as
support for her protected disclosures. The first email was
sent to the Medical Center Director, Ms. Fallen, and an
Equal Employment Opportunity representative on August
17, 2015. In the email, Ms. Bowden not only alleged that
her supervisor and coworkers were behaving inappropri-
ately (e.g., arriving late, leaving early, and taking long
lunches), but also that her coworkers were mistreating her
1 “SAppx” refers to the appendix filed with the gov-
ernment’s informal brief.
2 Because the electronic version of the initial deci-
sion lacks page designations, we employ the pagination
used in the decision at SAppx 20–39.
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BOWDEN v. DVA 3
for reporting these issues to her supervisor. Modified De-
cision, 2024 WL 1619380, at *1; SAppx 40–41. The second
email was sent to Ms. Fallen on October 9, 2016. In this
email, Ms. Bowden reported an incident where a fellow
nurse attacked her. Ms. Bowden further stated that she no
longer felt safe working with this nurse. The final email
was sent on November 12, 2016. This email contained the
forwarded content of the October 9, 2016 email and addi-
tional disclosures that Ms. Bowden has been facing contin-
ued harassment and retaliation at work.
The Board considered Ms. Bowden’s evidence and, fol-
lowing a hearing, found that Ms. Bowden’s August 17, 2015
and October 9, 2016 emails contained protected disclosures
and that her November 12, 2016 email contained protected
disclosures in part. Modified Decision, 2024 WL 1619380,
at *2. However, the Board found that the August 17, 2015
email was sent to the wrong email address, so Ms. Fallen
was aware of Ms. Bowden’s protected disclosures made in
only the October 9, 2016 and November 12, 2016 emails
that she received. Id. at *4–5. Despite finding that the
August 17, 2015 email was not a contributing factor, the
Board held that Ms. Bowden presented sufficient evidence
to establish a prima facie case showing that her other pro-
tected disclosures were a contributing factor in her re-
moval. Id. at *2; see 5 U.S.C. § 1221(e)(1). This shifted the
burden to the VA to show by clear and convincing evidence
that it would have removed Ms. Bowden notwithstanding
her protected disclosures. Modified Decision, 2024 WL
1619380, at *5; see 5 U.S.C. § 1221(e)(2).
Although the Board found that Ms. Bowden’s disclo-
sures might have provided some motive to retaliate and the
VA provided no evidence that it took similar action against
similarly situated non-whistleblowers, it determined that
the VA’s evidence in support of its removal action out-
weighed the other two considerations. Modified Decision,
2024 WL 1619380, at *5–7; see also Carr v. Soc. Sec.
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BOWDEN v. DVA 4
Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999).3 The Board
credited evidence demonstrating that Ms. Bowden was Ab-
sent Without Leave (AWOL) for at least 238.5 hours be-
tween January and May 2017, and noted that under the
VA’s table of penalties, a third offense of unexcused/unau-
thorized absence is punishable by up to removal.4 Modified
Decision, 2024 WL 1619380, at *5, *6 n.4. Accordingly, the
Board found that the agency met its burden. Id. at *6–7.
Ms. Bowden petitions this court for review. We have juris-
diction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
Under 5 U.S.C. § 7703(c), we may set aside an action of
the Board only if it was “(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.” McIntosh v. Dep’t of Def., 53 F.4th
630, 638 (Fed. Cir. 2022) (citation omitted). Ms. Bowden,
as the petitioner, bears the burden of establishing that the
Board committed reversible error. See Link v. Dep’t of
Treasury, 51 F.3d 1577, 1581 (Fed. Cir. 1995).
Ms. Bowden argues that the Board did not consider all
the relevant facts and applied the wrong law. Pet’r’s
3 In determining whether the agency has met its
burden, we consider factors such as (1) the strength of the
agency’s evidence in support of its action; (2) the existence
and strength of any motive to retaliate on the part of
agency officials involved in the decision; and (3) any evi-
dence that the agency takes similar actions against em-
ployees who are not whistleblowers but who are otherwise
similarly situated. Carr, 185 F.3d at 1323.
4 The removal at issue represents Ms. Bowden’s
third offense of unexcused/unauthorized absence. Modi-
fied Decision, 2024 WL 1619380, at *6 n.4.
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BOWDEN v. DVA 5
Informal Br. at 1–3. Specifically, Ms. Bowden contends:
(1) the Board interfered with her witness and evidence;
(2) the VA misled the Board regarding the date of her re-
moval to circumvent Americans with Disabilities Act
(ADA) protections to which she was entitled and terminate
her employment; (3) the Board modified the administrative
judge’s initial decision to acknowledge that there was re-
taliation related to Ms. Bowden’s disability discrimination,
but improperly dismissed the claim due to lack of jurisdic-
tion; (4) the Board did not properly apply the Douglas fac-
tors in determining whether Ms. Bowden could keep her
job; and (5) the Board did not address Ms. Bowden’s chal-
lenges based on Title VII of the Civil Rights Act, as well as
the Fourteenth Amendment. Id. at 2–3; ECF No. 1-2 at 1–
3, 10–11. Reviewing the record, we see no basis for setting
aside the Board’s final decision.
Ms. Bowden first contends that the Board improperly
excluded evidence that should have been a part of the rec-
ord. Pet’r’s Informal Br. at 2; ECF No. 1-2 at 1–2. She
posits that the administrative judge requested the VA to
submit a Work Status Report to replace her own Work Sta-
tus Report that was already in the record. Pet’r’s Informal
Br. at 2; ECF No. 1-2 at 1. Ms. Bowden argues this medical
evidence contains a recommendation from her doctor that
she should not work from July 6, 2017 through August 16,
2017. ECF No. 1-2 at 1. According to Ms. Bowden, the VA
ignored this recommendation and wrongfully denied her
disability accommodations, which would have excused her
being AWOL. ECF No. 1-2 at 1–2; see also Resp’t’s Infor-
mal Br. at 7–8. In denying her requests for accommoda-
tions, Ms. Bowden asserts that the VA caused her to incur
additional AWOL hours that ultimately resulted in her ter-
mination. ECF No. 1-2 at 1–2; see also Resp’t’s Informal
Br. at 8–10.
These assertions do not show that the Board erred in
finding the VA met its burden to establish that it would
have removed Ms. Bowden notwithstanding her
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BOWDEN v. DVA 6
whistleblowing activity. First, contrary to her argument,
Ms. Bowden’s medical evidence was included in the record
before the Board. See Initial Decision, at 10–11; SAppx51–
52. The Board considered Ms. Bowden’s evidence and
found that most of the doctor’s recommended periods of
time off did not implicate her AWOL hours between Janu-
ary and May 2017. Initial Decision, at 10. To the extent
that one Work Status Report could have excused
Ms. Bowden’s AWOL hours between January 4 and Febru-
ary 7, 2017, the Board found that Ms. Bowden would still
be AWOL for 238.5 hours. Id. The Board reasonably de-
termined this was still “a significant number of hours” and
the 238.5 AWOL hours could support the agency’s person-
nel action under the first Carr factor. Id. at 10–12. Second,
to the extent that Ms. Bowden argues that the agency’s de-
nial of reasonable accommodation (e.g., her request for
leave or to transfer her to another unit) evinces a violation
of the ADA, the Board correctly concluded that it lacked
jurisdiction over such a claim in the context of an IRA ap-
peal. Modified Decision, 2024 WL 1619380, at *7; see also
Young v. MSPB, 961 F.3d 1323, 1327–28 (Fed. Cir. 2020)
(“[I]n an IRA appeal to the Board, the Board’s review is
limited to the merits of allegations of violations of the
Whistleblower Protection Act.”). As Ms. Bowden does not
challenge the Board’s findings as to the second and third
Carr factors, we therefore see no reason to disturb the
Board’s finding that these factors are insufficient to over-
come the weight of the first Carr factor.
Ms. Bowden next argues that the VA misled the Board
about the date of her removal to circumvent ADA protec-
tions, which would have immunized her from termination.
ECF No. 1-2 at 2. Ms. Bowden contends she did not receive
her notice of termination until July 26, 2017, weeks into
her medical leave from July 6 to August 16, 2017. Id.; see
also SAppx62 (notice of proposed removal). Because she
was on medical leave, Ms. Bowden argues that she was pro-
tected from this termination decision. ECF No. 1-2 at 2.
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BOWDEN v. DVA 7
These unsupported arguments are unpersuasive. The rec-
ord shows that the VA issued a notice of proposed removal
on June 26, 2017, SAppx 62, and that the notice was deliv-
ered to Ms. Bowden’s home on June 27, 2017, which was
before her July 6, 2017 medical leave. SAppx 65–68. Ac-
cordingly, substantial evidence supports the Board’s find-
ings.
Ms. Bowden’s remaining arguments deal with the
Board’s (1) dismissal of her disability discrimination claim;
(2) application of the Douglas factors; and (3) adjudication
of Ms. Bowden’s Title VII and Fourteenth Amendment ar-
guments. These arguments are also not persuasive. First,
the Board did acknowledge Ms. Bowden’s claim of disabil-
ity discrimination, but correctly declined to consider the
merits of the claim because it is not within the Board’s ju-
risdiction. Modified Decision, 2024 WL 1619380, at *7; see
also Young, 961 F.3d at 1327–29 (“Ms. Young's contention
that she was removed in part in retaliation for making
EEO complaints about the agency's failure to accommodate
her disability does not present an issue over which the
Board has jurisdiction under 5 U.S.C. § 1221(a).”).
Ms. Bowden does not provide any support for her assertion
that there were underlying biases in the VA’s termination
process that would disturb the Board’s ultimate finding
that, “considering the evidence as a whole, Carr factors 2
and 3 are insufficient to overcome the weight of Carr factor
1.” Modified Decision, 2024 WL 1619380, at *7; see ECF
No. 1-2 at 2. Second, Ms. Bowden argues that the penalty
factors described in Douglas v. Veterans Admin., 5
M.S.P.R. 280, 305–06 (1981), allow for an employee to re-
ceive treatment and keep her job. See Pet’r’s Informal Br.
at 2 (arguing that the court could “verify medical certifica-
tion . . . in evidence”). Douglas, however, does not directly
apply to an IRA appeal. See Corpus v. Dep't of Veterans
Affs., No. 2023-1861, 2024 WL 1548908, at *6 (Fed. Cir.
Apr. 10, 2024) (non-precedential) (explaining that the
“Douglas factors . . . are not pertinent to the IRA appeal
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BOWDEN v. DVA 8
Mr. Corpus has presented to us” challenging his removal);
5 C.F.R. § 1209.2(b)(2), (c), (d); 5 U.S.C. § 7121(g) (election
of remedies). This argument seems to be a revised formu-
lation of her prior argument, which we have already ad-
dressed above, that her AWOL hours should be excused
due to her medical documentation. Finally, Ms. Bowden
did not raise any Title VII and Fourteenth Amendment
claims to the Board, which was limited to adjudicating
Ms. Bowden’s whistleblower claim. See Young, 961 F.3d at
1327–28.
C ONCLUSION
We have considered Ms. Bowden’s remaining argu-
ments but find them unpersuasive.5 For the foregoing rea-
sons, the final decision of the Merit Systems Protection
Board is affirmed.
AFFIRMED
C OSTS
No costs.
5 Ms. Bowden submitted a motion to (1) consolidate
this appeal with other matters before this court, the Board
and the United States Court of Federal Claims; (2) order
additional files be sent by the Board; (3) join additional par-
ties to the case; and (4) add additional claims such as the
violations of the Fair Labor Standards Act. ECF No. 26
at 1. Ms. Bowden’s motion requests relief that she did not
seek before the Board (to the extent she could have made
these requests to the Board) and that either we cannot
grant or would be inappropriate for us to grant at this
stage, Accordingly, Ms. Bowden’s motion is denied.
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