Vickie L. Jones v. Department of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
VICKIE L. JONES,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2025-1223
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-1221-23-0055-W-1.
______________________
Decided: July 8, 2025
______________________
VICKIE L. JONES, Baltimore, MD, pro se.
BLAKE WILLIAM COWMAN, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent. Also represented by
TARA K. HOGAN, PATRICIA M. MCCARTHY, BRETT SHUMATE.
______________________
Before LOURIE, REYNA, and STARK, Circuit Judges.
PER CURIAM.
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JONES v. DVA 2
Vickie L. Jones appeals pro se a final decision of the
Merit Systems Protection Board denying corrective action
in her individual right of action appeal. For the following
reasons, we affirm.
BACKGROUND
During the time period at issue in this appeal,
Ms. Jones worked as a health technician at a Department
of Veterans Affairs (“VA”) medical facility. SAppx2.1 In
July 2021, Ms. Jones filed a complaint with the Office of
Special Counsel (“OSC”) alleging that the VA retaliated
against her in violation of the Whistleblower Protection Act
of 1989 (“WPA”) and the Whistleblower Protection En-
hancement Act of 2012 (“WPEA”). Id. Ms. Jones alleged,
inter alia, that the VA retaliated against her by wrongly
reducing her pay and subjecting her to a hostile work envi-
ronment. SAppx3. On August 30, 2021, the OSC notified
Ms. Jones that it had terminated its inquiry into her com-
plaint. SAppx2. Ms. Jones appealed the OSC’s decision to
the Merit Systems Protection Board (“Board”).
The administrative judge (“AJ”) assigned to
Ms. Jones’s case held an evidentiary hearing. SAppx3.
Prior to the hearing, the AJ granted Ms. Jones’s request to
admit the testimony of three witnesses. SAppx36. The AJ
denied Ms. Jones’s request to admit the testimony of a pro-
posed character witness, Cladette Harvey, ruling that the
proposed testimony was not relevant. Id.
At the hearing, Ms. Jones testified that she made the
following protected disclosures under the WPA/WPEA: (1)
She told the director of her medical facility that the chief of
medicine, an individual referred to as “S.G.,” harassed her;
and (2) she filed three OSC complaints and numerous
Equal Employment Opportunity (“EEO”) complaints.
1 “SAppx” refers to the appendix accompanying the
government’s responsive brief.
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JONES v. DVA 3
SAppx3. Ms. Jones testified that the VA retaliated against
her in several ways for having made these disclosures.
First, Ms. Jones testified that the VA reduced her pay from
approximately 2018 or 2019 onward. SAppx4. Ms. Jones
submitted her W-2 tax form for the years 2018–2021 and
her Standard Form 50 (“SF-50”) for the same years to sup-
port her claim. Id. Second, Ms. Jones testified that the VA
subjected her to a hostile work environment because (1) the
VA denied her overtime opportunities, and (2) S.G. stalked
her and hacked her electronic devices, among other allega-
tions of harassment. SAppx3–5. Ms. Jones produced sev-
eral photographs and screenshots to support her
harassment allegations, such as screenshots of Wi-Fi net-
works, Google searches and notifications, and a photograph
allegedly showing S.G.’s car parked near her home. Id.; see
generally SAppx44–53.
The AJ determined that Ms. Jones only presented cred-
ible evidence of her claim that the VA wrongly reduced her
pay, so the AJ directed the VA to respond to that claim
only. SAppx5.
In response, the VA presented the testimony of a pay-
roll supervisor, Michael J. Heineman. Id. Mr. Heineman
testified that, when comparing Ms. Jones’s SF-50 to rele-
vant pay tables published by the Office of Personnel Man-
agement (“OPM”), Ms. Jones received all applicable pay
raises to which she was entitled. SAppx6–7. Mr. Heine-
man testified that Ms. Jones believed she was underpaid
for three reasons: (1) She mistakenly based her claim on
box 1 of her W-2 forms, which reports wages, tips, and other
compensation, rather than box 3, which reports social se-
curity wages; (2) W-2 forms may vary slightly from OPM
tables because pay periods may not align perfectly with a
calendar year; and (3) Ms. Jones failed to account for the
fact that at different times, she was in an unpaid leave sta-
tus. Id.
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JONES v. DVA 4
On October 22, 2024, the AJ issued an initial decision.
The AJ determined that he lacked jurisdiction over
Ms. Jones’s claim that the VA retaliated against her in re-
sponse to her filing EEO complaints, ruling that filing an
EEO complaint is not a protected activity under 5 U.S.C.
§ 2302(b)(8). SAppx7–9 (citing Young v. Merit Sys. Prot.
Bd., 961 F.3d 1323, 1328–29 (Fed. Cir. 2020)). The AJ also
determined that Ms. Jones failed to prove that the VA re-
duced her pay, that S.G. harassed her, or that the VA took
any of the other miscellaneous alleged actions against her.
SAppx9–11. Ms. Jones did not appeal the AJ’s initial deci-
sion, and thus the initial decision became the Board’s final
decision.
Ms. Jones appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(9).2
STANDARD OF REVIEW
Our review of Board decisions is limited. 5 U.S.C.
§ 7703(c). We set aside a Board decision only when it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been fol-
lowed; or (3) unsupported by substantial evidence.” Id.
2 Ms. Jones indicated in her Federal Circuit
Rule 15(c) statement concerning discrimination that she
raised and does not wish to abandon discrimination claims.
ECF No. 7. We lack jurisdiction over appeals from “mixed”
cases, i.e., cases in which a federal employee complains of
an adverse personnel action appealable to the Board and
attributes the adverse action, in whole or in part, to bias
prohibited by federal antidiscrimination laws. Perry v.
Merit Sys. Prot. Bd., 582 U.S. 420, 437 (2017). However,
Ms. Jones only raises an individual right of action appeal,
which is never a mixed case falling outside of our jurisdic-
tion. Young, 961 F.3d at 1327–28.
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JONES v. DVA 5
DISCUSSION
Ms. Jones raises two primary arguments on appeal.
First, Ms. Jones argues that the Board failed to consider
“how the harassment has followed [her] after [a prior] com-
plaint went in [her] favor.” Appellant Br. 2. Second,
Ms. Jones argues that the Board erred when it refused to
“let [her] witness testify” and only allowed Ms. Jones to
provide yes or no answers at the hearing. Appellant Br. 3.
We address each argument in turn.
As to Ms. Jones’s first argument, the Board fully con-
sidered Ms. Jones’s allegations, and thus, her argument
fails. Regarding her various allegations of a hostile work
environment, the Board considered her testimony and doc-
umentary evidence. SAppx10–11. The Board found that
many of her claims “lack[ed] . . . any evidentiary support”
and were “based upon nothing more than sheer unsubstan-
tiated speculation.” Id. The Board found that the docu-
mentary evidence that did exist consisted of “random
pictures which are undefined and are from no discernable
sources,” and/or the documentary evidence did not support
her “wildly speculative conclusions.” Id. These findings
are supported by substantial evidence. To the extent that
the Board’s findings rest on credibility determinations,
such determinations are “virtually unreviewable” on ap-
peal. Gibson v. Dep’t of Veterans Affs., 160 F.3d 722, 725
(Fed. Cir. 1998) (citation omitted). Further, we agree with
the Board that Ms. Jones’s documentary evidence does not
provide any support for her claims. For example, the Board
reasonably concluded that the various screenshots of Wi-Fi
networks and Google pages do not show that Ms. Jones was
hacked, and the photograph of a car outside of Ms. Jones’s
house, without more, is insufficient to show that the car
belonged to S.G., or that S.G. was stalking her.
SAppx10–11; SAppx44; SAppx51.
To the extent that Ms. Jones challenges the Board’s
ruling that the VA did not wrongly reduce her pay, the
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JONES v. DVA 6
Board’s ruling is supported by substantial evidence. The
Board acted well within its rights by weighing the compet-
ing testimony of Ms. Jones and Mr. Heineman, finding that
Mr. Heineman’s testimony was “convincing, credible and
extremely detailed,” and ruling that Ms. Jones failed to
prove that the VA wrongly reduced her pay. SAppx6;
SAppx9–10; Gibson, 160 F.3d at 725.
As to Ms. Jones’s second argument, we reject this argu-
ment as well. We generally review evidentiary issues for
an abuse of discretion. Whitmore v. Dep’t of Lab., 680 F.3d
1353, 1368 (Fed. Cir. 2012) (citation omitted). Regarding
the exclusion of character witness testimony from Cladette
Harvey, the Board has authority to order “the appearance
of witnesses whose testimony would be relevant, material,
and nonrepetitious[.]” 5 C.F.R. § 1201.41(b)(10).
Ms. Jones does not explain why Cladette Harvey’s pro-
posed testimony was relevant and nonrepetitious, espe-
cially in light of the Board’s admission of Ms. Jones’s three
other proposed witnesses. SAppx36. The Board “has broad
discretion in determining how many and which witnesses
should be permitted to testify,” and Ms. Jones has not es-
tablished that the Board abused its discretion. Veneziano
v. Dep’t of Energy, 189 F.3d 1363, 1369 (Fed. Cir. 1999).
Similarly, regarding Ms. Jones’s argument that the
Board erred in only allowing her to provide yes or no an-
swers, Ms. Jones has failed to establish an abuse of discre-
tion. Ms. Jones does not identify when this restriction
occurred. We assume Ms. Jones is referring to instances
that the government identifies where, during her cross-ex-
amination, either VA counsel or the AJ asked Ms. Jones to
respond with a yes or no answer. Response Br. 21. “Alt-
hough the Federal Rules of Evidence do not apply to Board
hearings, . . . they are a helpful guide to proper hearing
practices.” Yanopoulos v. Dep’t of Navy, 796 F.2d 468, 471
(Fed. Cir. 1986). Federal Rule of Evidence 611 provides
that, “[o]rdinarily, the court should allow leading ques-
tions . . . on cross-examination[.]” Fed. R. Evid. 611(c).
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JONES v. DVA 7
Ms. Jones has not established that the Board’s allowance
of leading questions on cross-examination, which is ordi-
narily permitted under the Federal Rules of Evidence, was
an abuse of discretion, or that she was limited to providing
yes or no answers at any other stage in the proceeding. Ac-
cordingly, we conclude that the Board did not abuse its dis-
cretion.
CONCLUSION
We have considered Ms. Jones’s remaining arguments
and find them unpersuasive. For the reasons stated, we
affirm.
AFFIRMED
COSTS
No costs.
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