Derrick Jones v. Department of the Navy ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DERRICK JONES, DOCKET NUMBER
Appellant, DC-1221-23-0074-W-1
v.
DEPARTMENT OF THE NAVY, DATE: July 29, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Derrick Johnell Jones , Portsmouth, Virginia, pro se.
Trudy V. Murphy , Norfolk, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review,
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
VACATE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant is an Air Conditioning Equipment Mechanic with the Naval
Facilities Engineering Systems Command (NAVFAC) Mid-Atlantic in Norfolk,
Virginia. Initial Appeal File (IAF), Tab 1 at 1, 6. According to the appellant, he
sent an email to a staff member in NAVFAC’s Human Resources Office (HRO)
on March 26, 2021, which led to an agency investigation. Id. at 34. The
appellant alleged to the individual assigned to investigate his concerns that his
first-level supervisor accessed an agency account assigned to the appellant.
Petition for Review (PFR) File, Tab 1 at 8. The appellant further alleged to the
investigator that his first-level supervisor used that access to complete a
certification on the appellant’s behalf, falsely indicating that the appellant had
completed “Operational Security for Control Systems” training. Id.; IAF, Tab 1
at 51 n.1. The appellant also asserted that his first-level supervisor was
embarrassed during an unrelated incident when, during a meeting with the
appellant and his first- and second-level supervisors on October 25, 2021, it was
revealed that his first-level supervisor had made a false statement regarding the
appellant’s work schedule. 2 IAF, Tab 1 at 40, 42, 51.
¶3 On January 5, 2022, the appellant filed a whistleblower reprisal complaint
with the Office of Special Counsel (OSC), alleging that, between April and
October 2021, the agency took multiple personnel actions against him in
retaliation for his March 26, 2021 email and the embarrassment his first-level
supervisor suffered on October 25, 2021. Id. at 4, 28-43. According to the
appellant, between September and December 2021, he also reported some of his
2
The appellant does not specifically explain the supervisory role of the individual we
have identified here as his second-level supervisor. We have so identified this
individual for the clarity and readability of this decision but recognize that he may be
higher in the appellant’s chain of command. IAF, Tab 1 at 40, 51.
3
concerns about agency wrongdoing to a U.S. Representative, the agency’s equal
employment opportunity (EEO) office, and the U.S. Department of Labor (DOL).
Id. at 32. He also disclosed to OSC his belief that the agency had committed
other prohibited personnel practices by violating regulations implementing the
Family and Medical Leave Act of 1993 (FMLA) and had endangered his life by
failing to adequately address an infectious disease outbreak. Id. at 16-25, 44-47.
¶4 On September 8, 2022, OSC issued a letter notifying the appellant that it
had closed its investigation into his claims and that he could file an appeal with
the Board. Id. at 51-52. The appellant filed the instant appeal. Id. at 4.
¶5 The administrative judge notified the appellant of his jurisdictional burden
and twice ordered him to file evidence and argument on the jurisdictional issue.
IAF, Tabs 5, 11. The appellant did not respond to the first order. In response to
the second order, he stated that all information needed to establish jurisdiction
could be found in his initial appeal. IAF, Tab 12 at 4. The agency argued that the
appellant failed to meet his jurisdictional burden, and the administrative judge
should therefore dismiss the appeal. IAF, Tabs 9, 13.
¶6 The administrative judge issued an initial decision dismissing the appeal for
lack of jurisdiction. IAF, Tab 14, Initial Decision (ID) at 1-2, 7. She generally
found that the appellant had exhausted his OSC remedy, but did not specifically
identify the alleged protected activity, disclosures, or personnel actions that he
raised with OSC. ID at 4-5. Despite her exhaustion finding, the administrative
judge concluded that the appellant failed to establish jurisdiction because he did
not make a nonfrivolous allegation that he engaged in a protected activity under
5 U.S.C. § 2302(b)(9)(A)(i). ID at 5-7.
¶7 The appellant has filed a petition for review. PFR File, Tab 1. The agency
has filed a response, and the appellant has replied. PFR File, Tabs 3-4. For the
following reasons, we find that the appellant established jurisdiction over his IRA
appeal and remand this appeal to the regional office for adjudication on the
merits.
4
DISCUSSION OF ARGUMENTS ON REVIEW
¶8 The Board has jurisdiction over an IRA appeal if the appellant has
exhausted his administrative remedies before OSC and makes nonfrivolous
allegations that: (1) he made a disclosure described under 5 U.S.C. § 2302(b)(8)
or engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B),
(C), or (D); and (2) the disclosure or 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). McCray v. Department of the Army, 2023 MSPB 10, ¶ 11. Any doubt
or ambiguity as to whether the appellant made nonfrivolous jurisdictional
allegations should be resolved in favor of finding jurisdiction. Skarada v.
Department of Veterans Affairs, 2022 MSPB 17, ¶ 6.
The appellant proved by preponderant evidence that he exhausted with OSC his
March 26, 2021 HRO email and disclosures during the following investigation,
and the October 25, 2021 meeting.
¶9 An employee seeking corrective action for whistleblower reprisal is
required to seek corrective action from OSC before seeking corrective action from
the Board. 5 U.S.C. § 1214(a)(3); Chambers v. Department of Homeland
Security, 2022 MSPB 8, ¶ 5. The substantive requirements of exhaustion are met
when an appellant has provided OSC with a sufficient basis to pursue an
investigation. Chambers, 2022 MSPB 8, ¶ 10. The Board’s jurisdiction is limited
to those issues that have been previously raised with OSC. Id. An appellant may
give a more detailed account of his whistleblowing activities before the Board
than he did to OSC. Id. An appellant may demonstrate exhaustion through his
initial OSC complaint or correspondence with OSC. Id., ¶ 11. In the alternative,
exhaustion may be proven through other sufficiently reliable evidence, such as an
affidavit or declaration attesting that the appellant raised with OSC the substance
of the facts in his Board appeal. Id. The appellant must prove exhaustion with
OSC by preponderant evidence, not just present nonfrivolous allegations of
exhaustion. Id. (citing 5 U.S.C. § 1214(a)(3); 5 C.F.R. § 1201.57(c)(1)).
5
¶10 Below, the administrative judge generally found that the appellant had
shown by preponderant evidence that he exhausted his claims with OSC because
he had submitted his OSC closure letter and his OSC whistleblower reprisal
complaint. 3 ID at 4-5. She proceeded to identify the activity at issue as the
March 26, 2021 HRO email, a complaint to a U.S. Representative, and EEO and
DOL complaints. ID at 5-7. The parties do not dispute her exhaustion findings
on review. Nonetheless, we review these matters to clarify the scope of the issues
on remand.
The appellant exhausted his March 26, 2021 HRO email and
subsequent disclosures, and an October 25, 2021 meeting with his
supervisors.
¶11 We agree that the appellant raised with OSC his March 26, 2021 HRO email
and, more generally, his disclosures during the resulting agency investigation.
The appellant provided a copy of his OSC complaint with his initial appeal. IAF,
Tab 1 at 16-50. His complaint references his HRO email and the investigation
into that email. Id. at 34. He further alleged to OSC that his first-level
supervisor later retaliated against him for the embarrassment caused by his initial
email and information discovered during the resulting investigation. Id. at 37.
¶12 Although not identified by the administrative judge, we observe that the
appellant also alleged retaliation for an October 25, 2021 incident in his OSC
complaint. Specifically, he alleged that his first-level supervisor retaliated
against him for information that came to light during the October 25, 2021
3
Below, the appellant also submitted an October 26, 2022 notice of proposed removal
that postdates his September 8, 2022 closure letter from OSC by more than a month.
IAF, Tab 1 at 6-12, 51-52. We clarify that, because this action postdates OSC’s closure
letter and was not raised to OSC, the Board does not have jurisdiction over it in this
IRA appeal. See Chambers, 2022 MSPB 8, ¶ 10. However, the appellant filed a
separate chapter 75 appeal challenging his removal and raising a claim that it was taken
in reprisal for the instant appeal and underlying OSC complaint. Jones v. Department
of the Navy, MSPB Docket No. DC-0752-23-0252-I-1, Initial Appeal File (0252 IAF),
Tab 1 at 3, 5, Tab 15 at 6-7, Tab 20 at 4, 8-9. On January 19, 2024, the administrative
judge assigned to the matter dismissed the appeal as moot. 0252 IAF, Tab 40, Initial
Decision at 16.
6
meeting between the appellant and his first- and second-level supervisors. Id.
at 40-42. Therefore, we find that he raised this October 25, 2021 incident with
OSC.
Although the appellant exhausted other claims with OSC, he did not
allege whistleblower reprisal.
¶13 To the extent that the administrative judge found that the appellant
exhausted his EEO, DOL, and congressional complaints, we disagree. In his OSC
complaint, he alleged that he reported to a U.S. Representative, DOL, and the
agency’s EEO office the same concerns that he reported to HRO. Id. at 32; ID
at 6-7. Although not identified by the administrative judge, the appellant also
made a disclosure to OSC of what he believed were the agency’s November 2021
violations of FMLA as it concerned his leave usage. IAF, Tab 1 at 16-25, 44-47.
In addition, although not mentioned by the administrative judge, we observe that
the appellant alleged that his fourth-level supervisor “endangered [the
appellant’s] life by refusing to adequately address an infectious disease outbreak”
in September 2021. Id. at 47.
¶14 Nonetheless, we lack jurisdiction over these matters in this IRA appeal.
The Board’s jurisdiction to review IRA complaints based on personnel actions
over which it otherwise does not have appellate jurisdiction, as here, is limited to
adjudicating allegations of reprisal for certain protected disclosures and activities.
See 5 U.S.C. §§ 1221(a), 2302(b)(8), (b)(9)(A)(i), (b)(9)(B), (b)(9)(C), (b)(9)(D);
Marren v. Department of Justice, 51 M.S.P.R. 632, 638-39 (1991), aff’d per
curiam, 980 F.2d 745 (Fed. Cir. 1992) (Table), and modified on other grounds by
Robinson v. U.S. Postal Service, 63 M.S.P.R. 307 (1994). The record contains no
evidence that the appellant alleged reprisal for his EEO, DOL, or congressional
complaints to OSC, or his disclosures to OSC that the agency violated the FMLA
or endangered his life. IAF, Tab 1 at 16-52. Nor has he claimed reprisal in
connection with these matters either below or on review. IAF, Tab 1 at 3, Tab 4;
7
PFR File, Tabs 1, 4. Therefore, they do not fall within the scope of the Board’s
IRA jurisdiction, and we do not consider them further.
The appellant has made a nonfrivolous allegation that he made a protected
disclosure.
¶15 We turn next to whether the appellant nonfrivolously alleged that his email
to HRO and meeting with his supervisors were protected disclosures under
5 U.S.C. § 2302(b)(8), or protected activity under 5 U.S.C. § 2302(b)(9)(A)(i),
(B), (C), or (D). See McCray, 2023 MSPB 10, ¶ 11. A nonfrivolous allegation is
an allegation of “sufficient factual matter, accepted as true, to state a claim that is
plausible on its face.” Hessami v. Merit Systems Protection Board, 979 F.3d
1362, 1364, 1369 (Fed. Cir. 2020); see 5 C.F.R. § 1201.4(s) (defining a
nonfrivolous allegation as an assertion that, if proven, could establish the matter
at issue).
¶16 As to the March 26, 2021 HRO email, the administrative judge found that
the appellant failed to nonfrivolously allege that he engaged in protected activity
under 5 U.S.C. § 2302(b)(9)(A)(i) because he did not allege that the email sought
to remedy whistleblower reprisal. ID at 6. We agree that the record was lacking.
¶17 Only appeals, complaints, and grievances seeking to remedy whistleblower
reprisal are covered under section 2302(b)(9)(A)(i). Bishop v. Department of
Agriculture, 2022 MSPB 28, ¶ 15. Filing a complaint in which an appellant did
not seek to remedy whistleblower reprisal is outside the scope of section 2302(b)
(9)(A)(i), even if the complaint disclosed wrongdoing under section 2302(b)(8).
Id., ¶¶ 15-16. There is no copy of the March 26, 2021 email in the record. The
only descriptions of what it stated are in the appellant’s OSC complaint and
OSC’s letter closing its investigation. IAF, Tab 1 at 35, 51 n.1. The appellant
described the investigation into his email as uncovering that his supervisor’s
stated reason for completing the appellant’s training “was an embarrassing lie.”
Id. at 35. OSC’s letter describes the appellant’s email as alleging that his
“first-line supervisor falsified information related to a new training requirement,
8
wrongful[ly] deni[ed] [the appellant’s] selection as a Purebred Agent, and
[engaged in] unlawful conduct related to [his] use of a charging station for [his]
vehicle.” Id. at 51 n.1. Neither below nor on review does the appellant claim that
his email to HRO sought to remedy reprisal for whistleblowing.
¶18 Nonetheless, we find that the appellant’s allegations on review are
sufficient to conclude that he made disclosures protected under 5 U.S.C.
§ 2302(b)(8) to the investigator assigned to his HRO email. For the first time on
review, the appellant provides a copy of an April 6, 2021 email he sent to the
investigator. PFR File, Tab 1 at 8; IAF, Tab 1 at 34. This document provides
new information regarding the appellant’s alleged disclosures that the
administrative judge did not have available below. Under 5 C.F.R. § 1201.115,
the Board generally will not consider evidence or argument submitted for the first
time with a petition for review absent a showing that it was unavailable before the
record was closed before the administrative judge despite the party’s due
diligence. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 213-14 (1980).
However, we have considered the appellant’s new evidence to the extent it
impacts the Board’s jurisdiction, which is always before the Board and may be
raised by the parties or sua sponte by the Board at any time. Ney v. Department
of Commerce, 115 M.S.P.R. 204, ¶ 7 (2010).
¶19 A protected disclosure is one which the employee reasonably believes
evidences a violation of any law, rule, or regulation, gross mismanagement, a
gross waste of funds, an abuse of authority, or a substantial and specific danger to
public health or safety. 5 U.S.C. § 2302(b)(8); Cooper v. Department of Veterans
Affairs, 2023 MSPB 24, ¶ 14. The proper test for determining whether an
employee had a reasonable belief that his disclosure was protected is whether a
disinterested observer with knowledge of the essential facts known to and readily
ascertainable by the employee could reasonably conclude that the disclosure
evidenced one of the circumstances described in section 2302(b)(8). Cooper,
2023 MSPB 24, ¶ 14.
9
¶20 In the April 6, 2021 email he provides on review, the appellant claimed that
his first-line supervisor committed a “privacy and security” violation when he
“access[ed]” the appellant’s Total Workforce Management Services (TWMS) 4
account under the appellant’s identity and falsely indicated that the appellant had
“complete[d] training.” 5 PFR File, Tab 1 at 6, 8. According to the appellant, the
system showed that he completed the “Operational Security for Control Systems”
training three times but that he “did not access or complete this training at all.”
Id. at 8. He alleged to the investigator that he discovered his first-level
supervisor’s actions the week of March 15, 2021, and, when the appellant
confronted his first-level supervisor the following week, his supervisor confirmed
that he had completed the training because of an approaching deadline. Id.
¶21 An employee need not identify “a statutory or regulatory provision by title
or number to receive protection under the whistleblower protection laws, when
the employee’s statements and the circumstances surrounding the making of those
statements clearly implicate an identifiable law, rule, or regulation.” Langer v.
Department of the Treasury, 265 F.3d 1259, 1266 (Fed. Cir. 2001). Although the
4
The agency’s “Total Workforce Management Services (TWMS) provides employees
access to trainings” and to view personnel information.
https://www.secnav.navy.mil/rda/workforce/pages/nadp/employees/twms.aspx (last
visited July 29, 2024). We take official notice of this information, which is not in the
record, because it is publicly available. See 5 C.F.R. § 1201.64 (providing that the
Board may take official notice of matters of common knowledge or that can be
verified).
5
The appellant also indicated on review that the training at issue “plays . . . a vital role
in [the agency’s] ability to support the war fighter effectively and efficiently.” PFR
File, Tab 1 at 6. Because we find, as discussed below, that the appellant nonfrivolously
alleged that he reasonably believed his TWMS disclosure evidenced a violation of law,
we need not decide here whether he also nonfrivolously alleged that his disclosure
evidenced a substantial and specific danger to public health or safety. We also need not
make findings here as to whether the appellant nonfrivolously alleged that he made
additional protected statements in his April 6, 2021 email. He may pursue any such
claims on remand. See Skarada, 2022 MSPB 17, ¶ 13 (holding that the Board has
jurisdiction when the appellant exhausts his administrative remedies before OSC and
makes a nonfrivolous allegation that at least one alleged personnel action was taken in
reprisal for at least one alleged protected disclosure).
10
appellant did not identify the Privacy Act by name, the Privacy Act generally
prohibits the disclosure to others of private information retrieved by an
individual’s name or other “identifying particular.” 5 U.S.C. § 552a(a)(1),
(4)-(5), (b). We find that the appellant has made nonfrivolous allegations that he
reasonably believed that the agency maintained his records in the TWMS by his
name or some other personal identifier and that his supervisor’s unauthorized
access of his TWMS information violated the Privacy Act. See Herman v.
Department of Justice, 115 M.S.P.R. 386, ¶ 10 (2011) (determining that the
appellant, who was not a lawyer, nonfrivolously alleged that he made a protected
disclosure of a violation of the Privacy Act); see also Hupka v. Department of
Defense, 74 M.S.P.R. 406, 410-11 (1997) (finding that the appellant’s disclosures
regarding alleged Privacy Act violations were protected). Therefore, we find that
the Board has jurisdiction over the appellant’s communications to the investigator
looking into his email to HRO.
¶22 The appellant also claimed that his first-level supervisor retaliated against
him for embarrassment he suffered at a meeting on October 25, 2021. IAF, Tab 1
at 40, 42, 51. However, the appellant did not claim that he made protected
disclosures to the second-level supervisor at the meeting or that he otherwise
engaged in protected activity within the scope of the Board’s IRA jurisdiction.
Instead, the appellant asserted that his first-level supervisor claimed the
second-level supervisor made “an unauthorized decision concerning [the
appellant’s] work schedule” but, during the meeting between the three of them,
the second-level supervisor proved that the statement the first-level supervisor
made was not true. Id. at 42. Thus, interpreting the appellant’s allegations in the
light most favorable to the appellant, it was his second-level supervisor who made
the alleged disclosure.
¶23 An appellant may establish IRA jurisdiction on the basis that he is closely
associated with someone who made a disclosure protected under 5 U.S.C.
§ 2302(b)(8). Mercer v. Department of Health and Human Services , 82 M.S.P.R.
11211, ¶ 9 (1999), aff’d, 4 F. App’x 888 (Fed. Cir. 2001); Burrowes v. Department
of the Interior, 54 M.S.P.R. 547, 550-51 (1992). The non-disclosing employee is
protected in such instances because a failure to protect an employee from
retaliation based on his relationship with another employee who has engaged in
whistleblowing would discourage other employees from making protected
disclosures. See Duda v. Department of Veterans Affairs, 51 M.S.P.R. 444,
446-47 (1991). The appellant does not claim that he was a friend or relative of
his second-level supervisor such that he would be discouraged from making
protected disclosures based on his first-level supervisor’s discomfort with his
second-level supervisor’s statements. See id. at 447 (analogizing to retaliation for
Title VII activities engaged in by a friend or relative). Even if the appellant made
such an allegation, however, we would still find that he did not meet the
nonfrivolous allegation threshold because he does not indicate what the parties at
the October 25, 2021 meeting discussed regarding his schedule or how any prior
information he received was false. See Gabel v. Department of Veterans Affairs,
2023 MSPB 4, ¶ 6 (explaining that disclosures must be specific and detailed, not
vague allegations of wrongdoing).
The appellant nonfrivolously alleged that the agency took at least one personnel
action against him.
¶24 Because the administrative judge disposed of the appellant’s claims on other
grounds, she did not make any findings as to the alleged personnel actions. ID
at 5-7. Therefore, we do so here. We find that the appellant exhausted with OSC
his claims that, in reprisal for his disclosures during the investigation into his
HRO email, his fourth-level supervisor prevented his collateral-duty assignment
to Purebred Agent in April 2021, his second-level supervisor threatened to place
him in an absent without leave (AWOL) status the same month, and his first-level
supervisor did not allow him to record a meeting on May 4, 2021. IAF, Tab 1
at 36, 38-39, 43, 51.
12
¶25 The appellant also claimed below that his first-level supervisor threatened
him with removal on October 26, 2021. Id. at 3, 40-42. The appellant also raised
this claim to OSC. Id. at 40-42. However, he alleged to OSC only that this
threatened removal was in reprisal for the October 25, 2021 meeting, over which
we have found the Board lacks jurisdiction. Id. The appellant has not provided
evidence or alleged that he also claimed to OSC that his threatened removal was
in reprisal for his disclosures made in connection with his HRO email. Id.
at 40-42. Therefore, he did not exhaust this claim and the Board lacks
jurisdiction over the alleged October 26, 2021 threatened removal.
Threatened AWOL in April 2021
¶26 The appellant alleged to OSC that his fourth-level supervisor attempted to
force him to return to work in April 2021, before the end of his 14-day quarantine
period due to an exposure to COVID-19. Id. at 38. According to the appellant,
after he declined to return early, his second-level supervisor left him a voicemail
threatening to mark the appellant as AWOL if he did not comply. Id. Within
minutes, his second-level supervisor called him back and retracted his order that
the appellant report to duty. Id.
¶27 An appellant may secure corrective action in an IRA appeal based on an
agency’s threat to take a personnel action. 5 U.S.C. §§ 1221(e)(1), 2302(b)(8),
(b)(9); Rebstock Consolidation v. Department of Homeland Security ,
122 M.S.P.R. 661, ¶¶ 9-10 (2015). Placing an employee in AWOL status is a
decision concerning pay or benefits and is therefore a personnel action under
5 U.S.C. § 2302(a)(2)(A)(ix). Lawley v. Department of the Treasury, 84 M.S.P.R.
253, ¶ 14 (1999), review dismissed, 230 F.3d 1381 (Fed. Cir. 2000) (Table).
Accordingly, we find that the appellant has nonfrivolously alleged that he was
subjected to a personnel action when he was threatened with being deemed
AWOL.
13
Denial of appointment as Purebred Agent and meeting in April and
May 2021
¶28 The appellant alleged that the agency subjected him to a personnel action
when it prevented his collateral-duty assignment to a Purebred Agent in
April 2021. IAF, Tab 1 at 39. According to the appellant, a Purebred Agent is
“certified and designated to install the security software and certificates on
[employees’] federally issued iPhones.” Id. He indicated that he was told that
Purebred Agent was a “non-paid, lateral duty” that required a security clearance,
which he did not otherwise need for his position as an Air Conditioning
Equipment Mechanic. Id. The appellant asserted that his first- and second-level
supervisors nominated him to become a Purebred Agent, but his fourth-level
supervisor obstructed his nomination by refusing to request the required security
clearance needed for him to become a Purebred Agent. 6 Id.¶29 The appellant also claimed that, upon returning to work after completing his
quarantine period, his first-line supervisor requested a meeting with him and his
union steward on May 4, 2021. Id. at 36. According to the appellant, when he
arrived at the meeting his first-line supervisor refused to allow the appellant to
record the meeting. Id. To the extent the appellant is arguing that his first-line
supervisor’s refusal to allow him to record a disciplinary meeting was a personnel
action, we disagree.
¶30 Section 2302(a)(2)(A) defines a “personnel action” as any one of
11 enumerated actions and “any other significant change in duties,
responsibilities, or working conditions[.]” Neither of the above incidents fall
under an enumerated personnel action. However, we will consider both incidents
below when determining whether multiple actions collectively constituted a
significant change in duties, responsibilities, or working conditions. See Skarada,
2022 MSPB 17, ¶¶ 16, 18, 29.
6
The appellant indicated that, as a result of the HRO investigation, his fourth-level
supervisor was instructed to request the security clearance. IAF, Tab 1 at 39.
14
Hostile Work Environment
¶31 The appellant also alleged that he was subjected to a hostile work
environment due to harassment by his supervisors. IAF, Tab 1 at 34-35.
Allegations of a hostile work environment may establish a personnel action in an
IRA appeal only if they meet the statutory criteria under 5 U.S.C. § 2302(a)(2)
(A), i.e., constitute a significant change in duties, responsibilities, or working
conditions. See Skarada, 2022 MSPB 17, ¶ 16. In determining whether an
appellant has suffered a “significant change” in his duties, responsibilities, or
working conditions, the Board must consider the alleged agency actions both
collectively and individually. Id., ¶ 16 (citing Holderfield v. Merit Systems
Protection Board, 326 F.3d 1207, 1209 (Fed. Cir. 2003)); see Sistek v.
Department of Veterans Affairs, 955 F.3d 948, 955-56 (Fed. Cir. 2020) (holding
that an investigation may qualify as a personnel action under 5 U.S.C. § 2302(a)
(2)(A)(xii) if, either alone or combination with other agency actions, the
investigation changed the subject employee’s working conditions). Only agency
actions that, individually or collectively, have practical and significant effects on
the overall nature and quality of an employee’s working conditions, duties, or
responsibilities will be found to constitute a personnel action covered by
section 2302(a)(2)(A)(xii). Skarada, 2022 MSPB 17, ¶ 16. Thus, actions that
alone are not personnel actions may cumulatively be sufficiently severe or
pervasive to qualify as a hostile work environment actionable in an IRA appeal.
Id., ¶¶ 16, 18, 29.
¶32 Here, we limit our discussion to the incidents that we find, above, are not
personnel actions on their own. These incidents include the appellant’s
fourth-level supervisor’s alleged obstruction of the security clearance needed to
proceed with the appellant’s nomination to Purebred Agent in April 2021, and his
first-level supervisor’s refusal to allow the appellant to record a meeting on
May 4, 2021. IAF, Tab 1 at 36, 39. In a comparable case, the Board found that
an appellant failed to nonfrivolously allege that he was subjected to a hostile
15
work environment based on a number of actions by his supervisors, such as
telling the appellant not to attend meetings or perform “extra duties” and
declining to support the potential upgrade of his position, even when combined
with three incidents of supervisors yelling at the appellant over the course of a
year. Skarada, 2022 MSPB 17, ¶¶ 26-29. The fact that the appellant’s
assignment to collateral duties was delayed and that he was not allowed to record
a meeting similarly fall short of the type of actions that have practical and
significant effects on the type of work he performed or his day-to-day work
environment. Therefore, we decline to consider these matters further.
The appellant made a nonfrivolous allegation that his disclosure of a Privacy Act
violation contributed to the threat to designate him as AWOL.
¶33 To satisfy the contributing factor criterion at the jurisdictional stage, an
appellant need only raise a nonfrivolous allegation that the fact of, or content of,
the protected disclosure or activity was one factor that tended to affect the
personnel action in any way. Chambers, 2022 MSPB 8, ¶ 14. One way to
establish this criterion is the knowledge/timing test, under which an employee
may nonfrivolously allege that the disclosure or activity was a contributing factor
in a personnel action through circumstantial evidence, such as evidence that the
official taking the personnel action knew of the disclosure or activity, and that the
personnel action occurred within a period of time such that a reasonable person
could conclude that the disclosure or activity was a contributing factor in the
personnel action. Id., ¶ 15; see 5 U.S.C. § 1221(e)(1). Due to our findings above,
we are only considering here whether the appellant’s Privacy Act violation
disclosure was a contributing factor in the April 2021 threatened personnel action.
We find that the appellant has met his jurisdictional burden.
¶34 The Board has held that personnel actions taken within 1 to 2 years of the
protected activity satisfy the timing prong of the knowledge/timing test, but those
that take place more than 2 years after the activity are too remote to satisfy the
test. Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶ 63;
16
Agoranos v. Department of Justice, 119 M.S.P.R. 498, ¶ 21 (2013). Here, the
appellant nonfrivolously alleged that, no later than April 6, 2021, he made a
protected disclosure of a Privacy Act violation. IAF, Tab 1 at 34-35; PFR File,
Tab 1 at 8. He also has nonfrivolously alleged that, on April 25, 2021, less than a
month after he made his disclosure, his second-level supervisor threatened to
designate the appellant as AWOL when he quarantined per agency policy due to a
COVID-19 exposure. IAF, Tab 1 at 38. Therefore, the appellant has
nonfrivolously alleged that he meets the timing prong of the knowledge/timing
test as to this personnel action.
¶35 We also determine that the record contains sufficient allegations to satisfy
the knowledge prong of the knowledge/timing test at the jurisdictional stage. The
knowledge prong can be established with allegations of either actual or
constructive knowledge. Abernathy v. Department of the Army, 2022 MSPB 37,
¶ 15. An appellant may establish an official’s constructive knowledge of a
protected disclosure by demonstrating that an individual with actual knowledge of
the disclosure influenced the official accused of taking the retaliatory action. Id.¶36 According to the appellant, his fourth-level supervisor was initially tasked
with assigning an investigator into the appellant’s HRO email. IAF, Tab 1 at 38.
He also alleges that his second-level supervisor threatened him with AWOL status
on April 25, 2021, after his fourth-level supervisor demanded that the appellant
return to work before his quarantine period had ended. Id. We recognize that
there are questions regarding the information the appellant’s fourth-level
supervisor had, if any, by April 25, 2021, regarding the appellant’s Privacy Act
disclosure, and that supervisor’s involvement in the threat to mark the appellant
as AWOL. However, as noted above, we resolve any doubt or ambiguity as to
whether the appellant made a nonfrivolous allegation in favor of finding
jurisdiction. See Skarada, 2022 MSPB 17, ¶ 6. We conclude that his allegations
are sufficient to establish contributing factor at the jurisdictional stage. Thus, we
find that the appellant has raised a nonfrivolous allegation his protected
17
disclosure to the investigator into his HRO complaint contributed to the
threatened AWOL status on April 25, 2021. Therefore, we remand this appeal for
a decision on the merits.
ORDER
¶37 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.