Tess Korth Meyokovich v. Department of Justice

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TESS KORTH MEYOKOVICH,
Petitioner
v.
DEPARTMENT OF JUSTICE,
Respondent
______________________
2024-1239
______________________
Petition for review of the Merit Systems Protection
Board in Nos. SF-0752-23-0289-I-1, SF-1221-23-0290-W-1.
______________________
Decided: October 21, 2024
______________________
TESS KORTH MEYOKOVICH, Discovery Bay, CA, pro se.
JANA MOSES, Commercial Litigation Branch, Civil
Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BRIAN M. BOYNTON, ALBERT S. IAROSSI, PATRICIA M.
MCCARTHY.
______________________
Before MOORE, Chief Judge, CHEN and STOLL, Circuit
Judges.
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MEYOKOVICH v. DOJ 2
PER CURIAM.
Petitioner Tess Korth Meyokovich appeals a final
decision of the Merit Systems Protection Board (Board)
granting in part and denying in part her requests for
corrective action under the Whistleblower Protection Act
(WPA) and dismissing for lack of jurisdiction her claim
alleging constructive removal. Because the Board did not
abuse its discretion, its findings are supported by
substantial evidence, and Ms. Meyokovich presents no
argument as to the dismissal of the constructive removal
appeal, we affirm.
BACKGROUND
Ms. Meyokovich began working at the United States
Department of Justice (the agency) in the Federal Bureau
of Prisons (BOP) in 1997 as a guard and, later, as a case
manager and unit manager. S. Appx. 3.1 Ms. Meyokovich
was stationed at a Federal Correctional Institution (FCI)
in Dublin, California (FCI Dublin), which is one of nineteen
correctional institutions in the BOP’s Western Region.
S. Appx. 2–3.
In September 2021, after an investigation by the
agency’s Office of the Inspector General (OIG) and the
Federal Bureau of Investigation, then-warden of FCI
Dublin Ray Garcia was charged in a criminal complaint
related to misconduct at FCI Dublin. S. Appx. 1106–07. In
early 2022, both the BOP Western Regional Office and the
BOP Central Office convened assessment teams to
evaluate staff performance at FCI Dublin. S. Appx. 2760–
61; S. Appx. 2928–29. After the assessments identified
numerous noncompliance issues, Western Regional
Director Melissa Marques reassigned all managers at FCI
Dublin who had been working at the institution for six
1 “S. Appx.” refers to Respondent’s Supplemental
Appendix.
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MEYOKOVICH v. DOJ 3
months or more. S. Appx. 2912–17. All FCI Dublin
managers, including Ms. Meyokovich, had previously
signed mobility statements indicating that the BOP may
relocate them based on agency needs. S. Appx. 680.
During her time at FCI Dublin, Ms. Meyokovich raised
concerns of various forms of mismanagement at the
institution. Ms. Meyokovich filed a complaint with OIG in
January 2022 reporting objections about the
administration of FCI Dublin generally, the conditions of
inmates in quarantine housing, and adherence to COVID
protocols. S. Appx. 163–64. She voiced similar concerns
internally to her supervisors at FCI Dublin. S. Appx.
2568–78.
In May 2022, the BOP met with Ms. Meyokovich and
notified her that she was reassigned to a unit manager
position at the FCI in Sheridan, Oregon (FCI Sheridan).
S. Appx. 74. During the meeting, Ms. Meyokovich
informed the BOP that she would be retiring in July 2022.
S. Appx. 2580, 2622, 2676. Ms. Meyokovich voluntarily
retired from her position with the BOP on July 16, 2022,
before being reassigned to FCI Sheridan. S. Appx. 536.
After retiring, Ms. Meyokovich filed an individual right
of action (IRA) claim with the Board alleging the BOP
retaliated against her for whistleblowing in violation of the
WPA. S. Appx. 65–73. Ms. Meyokovich also claimed
constructive removal, which the Board docketed as a
separate appeal (No. SF-0752-23-0289-I-1) and joined with
the IRA appeal (No. SF-1221-23-0290-W-1). S. Appx. 102–
103. The Board granted-in-part and denied-in-part Ms.
Meyokovich’s request for corrective action as to her
whistleblower retaliation claim. S. Appx. 1–45. The Board
denied Ms. Meyokovich’s request for corrective action
based on the BOP’s reassignment of her to FCI Sheridan.
Id. at 36–45. Ms. Meyokovich appeals the denial-in-part.
The Board granted Ms. Meyokovich’s request for corrective
action based on other grounds, which Ms. Meyokovich does
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MEYOKOVICH v. DOJ 4
not appeal. S. Appx. 25–35, 45. Ms. Meyokovich also
appeals the Board’s dismissal for lack of jurisdiction of her
constructive removal claim, though she presents no
argument on that issue. S. Appx. 45–52. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
Our scope of review in an appeal from a decision of the
Board is limited. We must affirm the Board’s decision
unless we find it to be “(1) arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with the 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). Credibility
determinations made by the Board are “virtually
unreviewable” on appeal. Hambsch v. Dep’t of the
Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986).
I
Ms. Meyokovich argues the Board did not consider the
agency’s failure to cooperate in the discovery process
during her IRA claim. Petitioner’s Informal Br. 2. She
contends the agency failed to produce requested documents
and her second motion to compel discovery responses was
improperly denied as moot because the discovery period
was over. Id.
Discovery matters fall within the sound discretion of
the Board and its officials. Curtin v. Off. of Pers. Mgmt.,
846 F.2d 1373, 1378 (Fed. Cir. 1988). We review such
matters for an abuse of discretion. Id. at 1378–79.
Before the Board, Ms. Meyokovich filed two motions to
compel discovery responses. S. Appx. 1339–42; S. Appx.
1521–26. The Board denied the first motion because
Ms. Meyokovich did not meet and confer with the agency
before filing a motion to compel, as required by Board
procedural rules. S. Appx. 1510–15; see also 5 C.F.R.
§ 1201.73(c)(1), .74(a). The Board denied the second
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MEYOKOVICH v. DOJ 5
motion as moot because the agency produced emails
showing it had made the requested documents accessible
to Ms. Meyokovich. S. Appx. 1727–30.
The Board did not, as Ms. Meyokovich argues, deny her
motion to compel because the discovery period was over.
Rather, the Board determined, based on the agency’s
opposition to the motion and attached emails, that the
discovery issues surrounding Ms. Meyokovich’s second
motion to compel had been resolved and her request was
therefore moot. S. Appx. 1728; see also S. Appx. 1704–07,
1724–25. Ms. Meyokovich takes issue with the content of
the agency’s discovery response by arguing the agency did
not disclose all relevant information. Petitioner’s Informal
Br. 2. Ms. Meyokovich, however, does not provide support
for her contention that any undisclosed documents exist.
The Board therefore did not abuse its discretion by
determining that the agency disclosed the documents
sought by Ms. Meyokovich.
II
Ms. Meyokovich argues the Board erred in denying-in-
part her claim for corrective action because the BOP did
not have a legitimate reason to reassign her. Ms.
Meyokovich acknowledges that her position requirements
allow for reassignment to “meet the legitimate needs of the
[BOP].” Petitioner’s Informal Br. 2. She argues, however,
that the agency’s purpose in reassigning her—to mitigate
negative publicity after recent events at FCI Dublin—was
not a legitimate need for reassignment. Id.
Analysis of a whistleblower reprisal claim takes place
within a burden shifting framework. To establish a prima
facie case of reprisal for whistleblowing, an employee must
show by preponderant evidence that: (1) the employee
engaged in protected whistleblowing activity under 5
U.S.C. § 2302(b); and (2) the protected activity was a
contributing factor in the agency’s decision to take or fail to
take a personnel action as defined by 5 U.S.C. § 2302(a). 5
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U.S.C. § 1221(e)(1); Whitmore v. Dep’t of Labor, 680 F.3d
1353, 1367 (Fed. Cir. 2012). An employee may demonstrate
that a protected disclosure or activity was a contributing
factor in a personnel action by showing the official taking
the personnel action knew of the disclosure or protected
activity and the timing of the personnel action was such
that a reasonable person could conclude the disclosure or
protected activity was a contributing factor (the
“knowledge/timing” test). 5 U.S.C. § 1221(e)(1); Kewley v.
Dep’t of Health & Hum. Servs., 153 F.3d 1357, 1361 (Fed.
Cir. 1998). The agency can rebut a prima facie case with
clear and convincing evidence that it would have taken the
same personnel action without the protected disclosure.
5 U.S.C. § 1221(e)(2).
The Board found that Ms. Meyokovich engaged in
protected whistleblowing activity. Specifically, it found (1)
her filing of a complaint with OIG in January 2022 was
protected activity, and (2) she made protected disclosures
internally regarding COVID protocols on cleaning supplies,
cross-contamination of inmates and staff, and improper
management of transfers. S. Appx. 17, 21–23. The Board
also found the BOP’s May 2022 reassignment was a
personnel action under 5 U.S.C. § 2302(a)(2)(A)(iv). Id. at
31. But the Board denied Ms. Meyokovich’s request for
corrective action because it found Ms. Meyokovich’s
protected activity and disclosures were not a contributing
factor in the agency’s reassignment decision, and the
agency had independent reasons for its mass reassignment
decision. Id. at 36–45.
Substantial evidence supports the Board’s finding that
Ms. Meyokovich’s OIG complaint and internal protected
disclosures do not satisfy the knowledge/timing test
because no one responsible for the reassignment had
knowledge of the OIG complaint or internal protected
disclosures. Id. at 36–40. The Board explained the OIG is
a separate component of the agency and is not part of the
BOP. Id. at 36. The Board found no evidence that
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Ms. Meyokovich’s complaint was reported to anyone at the
BOP and credited Regional Director Marques’ testimony
that she was unaware of the OIG complaint prior to the
reassignment decisions. Id. at 36–37. The Board also
credited Regional Director Marques’ testimony that she
was unaware of the internal protected disclosures. Id. at
38. The Board found no evidence that anyone aware of the
internal protected disclosures gave input to Regional
Director Marques regarding reassignments. Id. at 39.
The Board did not limit its contributing factor analysis
to the knowledge/timing test. It considered whether other
relevant evidence showed Ms. Meyokovich’s protected
activity was a contributing factor in her reassignment. Id.
at 40–44. Substantial evidence supports the Board’s
finding that Ms. Meyokovich did not establish contributing
factor causation outside of the knowledge/timing test. The
Board found the mass reassignments were a reasonable
measure to address institutional problems, which were
unrelated to Ms. Meyokovich’s OIG complaint or internal
protected disclosures. Id. at 41–42. Indeed,
Ms. Meyokovich was one of over twenty managers who
were reassigned. S. Appx. 506–07.
Ms. Meyokovich argues the agency lacked a legitimate
reason for her reassignment. Petitioner’s Informal Br. 2.
Because Ms. Meyokovich did not establish a prima facie
case of reprisal for whistleblowing, the burden did not shift
to the agency to show that it would have reassigned Ms.
Meyokovich had she not engaged in protected activity. See
5 U.S.C. § 1221(e)(2). Ms. Meyokovich’s challenge to the
legitimacy of her reassignment does not undermine the
substantial evidence supporting the Board’s findings that
her protected activity was not a contributing causal factor
to her reassignment.
CONCLUSION
We have considered Ms. Meyokovich’s remaining
arguments and find them unpersuasive. We affirm the
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Board’s denial-in-part of Ms. Meyokovich’s request for
corrective action based on reprisal for whistleblowing
activity. Because Ms. Meyokovich presents no argument as
to the Board’s dismissal of her claim for constructive
removal, we deem any challenge to that decision forfeited
and accordingly affirm the Board’s dismissal.
AFFIRMED
COSTS
No costs.
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