Duane E Jenkins v. Department of Homeland Security ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DUANE E. JENKINS, DOCKET NUMBER
Appellant, DC-1221-20-0415-W-1
v.
DEPARTMENT OF HOMELAND DATE: July 2, 2024
SECURITY,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Nicholas Woodfield , Esquire, Washington, D.C., for the appellant.
Benjamin Owen , Esquire, and Daniel Piccaluga , Esquire, Washington,
D.C., 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
REVERSE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant is a GS-15 Supervisory Emergency Management Specialist
for the agency’s Federal Emergency Management Agency (FEMA), National
Preparedness Directorate, Technological Hazards Division. Initial Appeal File
(IAF), Tab 1 at 1, Tab 9 at 26.
The appellant stated below that one of the Technological Hazards
Division’s key programs is the Radiological Emergency Preparedness Program.
IAF, Tab 1 at 8. Through this program, FEMA provides executable training,
planning, and exercise guidance to state, local, and tribal governments. Id. The
appellant is responsible for managing the program’s funds, including its exercise
support system, which is an information technology infrastructure that stores
budget, cost, and performance data collected during radiological emergency
drills. Id. In 2014, FEMA decided to consolidate its exercise support system into
a single software platform, and the Associate Administrator for the National
Preparedness Directorate tasked various officials, including the appellant, with
assessing the agency’s options. Id. at 8-9. It appears that the two primary
contenders were Liferay (which was the current platform) and Salesforce. Id. at
9. After analyzing the options, the appellant and the Technological Hazards
Division recommended Salesforce, but in September 2015, the Associate
Administrator decided to use Liferay instead. Id. at 9-10. According to the
appellant, this was the wrong decision because the Salesforce platform is faster,
less expensive, and more secure. Id. Furthermore, the Associate Administrator
had already directed the Technological Hazards Division to build out its own
exercise system using Salesforce, so the division was forced to decommission this
support system that it had just built and migrate back to Liferay. Id. at 11-12.
3
The appellant filed a whistleblower complaint with the Office of Special
Counsel (OSC). Id. at 22-23. On January 30, 2020, OSC closed the appellant’s
file without taking corrective action. Id. On February 28, 2020, the appellant
filed an IRA appeal and requested a hearing, claiming that the agency took
several personnel actions against him in retaliation for various protected
activities. Id. at 2, 6-15. Specifically, the appellant alleged the following six
personnel actions: (1) a hostile work environment in early 2017, (2) a
“continued” hostile work environment from 2017 through 2019, (3) a
performance improvement plan (PIP) in December 2016, (4) a February 10, 2017
letter of reprimand, (5) lowered performance evaluations in February 2018 and
February 2019, and (6) denial of reasonable accommodation in 2017 and 2018. 2
Id. at 12-16. He alleged that the agency took these actions in retaliation for the
following activities: (1) a September 2016 disclosure to OSC alleging a gross
mismanagement, abuse of authority, and a gross waste of funds in connection
with the agency’s selection of a software platform for its exercise system; (2) a
July 26, 2016 complaint regarding the same matter to FEMA’s Office of Fraud
and Investigations and a related Inspector General (IG) interview later that fall;
(3) a whistleblower retaliation complaint to OSC on an unspecified date; (4) a
hostile work environment complaint to the agency’s human resources department;
and (5) a February 11, 2019 complaint to the FEMA Administrator alleging
whistleblower retaliation. Id. at 11-16.
The administrative judge issued the standard acknowledgment order for an
IRA appeal, notifying the appellant of his jurisdictional burden and instructing
him to file evidence and argument on the issue. IAF, Tab 3. After the parties
responded, the administrative judge issued an initial decision dismissing the
appeal for lack of jurisdiction. IAF, Tab 11, Initial Decision (ID). She found that
the appellant exhausted some but not all of his claims before OSC, and that he
2
In March 2017, the appellant was diagnosed with multiple sclerosis. IAF, Tab 5 at 4,
167.
4
failed, variously, to make nonfrivolous allegations that his disclosures were
protected or that they were contributing factors in a personnel action. ID at 5-13.
The appellant has filed a petition for review, disputing the administrative
judge’s jurisdictional analysis. Petition for Review (PFR) File, Tab 1. The
agency has responded to the petition for review, and the appellant has filed a
reply to the agency’s response. PFR File, Tabs 3-4.
ANALYSIS
To establish Board jurisdiction over an IRA appeal, an appellant must show
by preponderant evidence that he exhausted his remedies before OSC and make
nonfrivolous allegations that (1) he made a disclosure described under 5 U.S.C.
§ 2302(b)(8) or engaged in a protected activity described under 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or 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) . Linder v. Department of
Justice, 122 M.S.P.R. 14, ¶ 6 (2014); 5 C.F.R. § 1201.57(a)(1), (b), (c)(1).
“[T]he question of whether the appellant has non-frivolously alleged protected
disclosures that contributed in a personnel action must be determined based on
whether the employee alleged 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, 1369 (Fed. Cir. 2020); see 5 C.F.R. § 1201.4(s) (reflecting that a
nonfrivolous allegation is an assertion that, if proven, could establish jurisdiction
over the matter at issue).
The appellant exhausted his administrative remedies with OSC as to some of his
claims.
The appellant did not file a copy of his original OSC complaint or OSC’s
substantive determination letter. IAF, Tab 1 at 22-23. Accordingly, the only
evidence of exhaustion in the record is contained in the appellant’s declaration, a
5
subsequent letter from the appellant to OSC, 3 and the OSC close-out letter. IAF,
Tab 1 at 22-23, Tab 5 at 167-68, Tab 10 at 7-9.
As an initial matter, we must discuss the evidentiary value of the
appellant’s declaration. In his response to the jurisdictional order, the appellant
submitted an unsigned copy of the declaration. IAF, Tab 5 at 27-29. However,
after the agency pointed out this error in its jurisdictional response, IAF, Tab 9
at 10, 14, the appellant supplemented the record, with the agency’s consent, by
submitting a signed copy of the declaration, IAF, Tab 10. The administrative
judge, however, found that the declaration was entitled to “very little weight”
because only after the agency’s jurisdictional response did the appellant submit “a
newly signed version of the unsigned declaration he previously submitted.” ID
at 8. We disagree. The declaration was not newly signed in response to the
agency’s jurisdictional pleading. Rather, as the appellant stated below and
confirmed on review by submitting a copy of an email exchange, he signed the
declaration 3 days prior to submitting the jurisdictional response, but his
representative inadvertently submitted an unsigned copy. IAF, Tab 5 at 27-29,
Tab 10; PFR File, Tab 1 at 29-30. Once the agency pointed out this mistake, the
appellant acted promptly to cure it. We do not find it appropriate to discount the
value of the appellant’s declaration under these circumstances as something
inherently untrustworthy or concocted after the fact. See Parbs v. U.S. Postal
Service, 107 M.S.P.R. 559, ¶ 18 (2007) (“Generally, a statement signed under
penalty of perjury and not rebutted is competent evidence of the assertions
contained therein.”), aff’d per curiam, 301 F. App’x 923 (Fed. Cir. 2008).
Although she did not credit the allegations in the appellant’s declaration,
the administrative judge found sufficient evidence in OSC’s close-out letter to
3
The administrative judge declined to consider the appellant’s subsequent letter to
OSC, finding insufficient evidence that OSC ever actually received or considered this
letter. ID at 6-7; IAF, Tab 5 at 167-68. However, as explained in paragraph 8 below,
we credit the appellant’s declaration and find it sufficient to show that he sent this letter
to OSC as an amendment to his original complaint. IAF, Tab 10 at 7.
6
show that he alleged before OSC that the agency retaliated against him by placing
him on a PIP, issuing him a letter of reprimand, changing his duties, lowering his
performance ratings, and creating a hostile work environment. ID at 6. The
agency does not dispute these findings on review, and we find that they are
supported by the record. IAF, Tab 1 at 29-30. The administrative judge also
found that there was no evidence to show that the appellant exhausted his
administrative remedies with respect to a denial of reasonable accommodation.
ID at 6. However, based on the appellant’s declaration, which we find to be
competent evidence of the assertions contained therein, we find that the appellant
did raise this matter before OSC. IAF, 5 at 167-68, Tab 10 at 8. We therefore
find preponderant evidence that the appellant exhausted his administrative
remedies with respect to each of the five personnel actions listed below.
As explained above, the appellant identified five different disclosures that
he alleges were contributing factors in these personnel actions. However, we find
that the appellant’s first claimed disclosure is better analyzed as two separate
disclosures. The appellant’s description of this disclosure differs somewhat
between his initial appeal filing and his response to the administrative judge’s
jurisdictional order; in the former, he describes it as a 2016 disclosure to OSC,
but in the latter, he describes it as including previous disclosures to agency
management as well. IAF, Tab 1 at 11-12, Tab 5 at 5-6. In her initial decision,
the administrative judge analyzed this disclosure according to the narrower
characterization in the initial appeal filing, but we find it more appropriate to
consider the broader claim that the appellant articulated in his jurisdictional
pleading. ID at 7. Because these disclosures were made to different people and
are subject to coverage by different provisions of 5 U.S.C. § 2302(b), we consider
them separately as alleged 2015 disclosures to agency management protected
under 5 U.S.C. § 2302(b)(8)(A) and an alleged 2016 disclosure to OSC protected
under 5 U.S.C. § 2302(b)(9)(C).
7
In her initial decision, the administrative judge found sufficient evidence in
OSC’s close-out letter to show that the appellant alleged before OSC that these
personnel actions were in retaliation for reporting various types of wrongdoing in
connection with the agency’s selection and implementation of the Liferay
exercise platform. ID at 6. We find that the evidence is sufficient to show that
the appellant exhausted his administrative remedies with respect to his alleged
disclosure, made several times to various agency officials in 2015, that, among
other things, the agency wasted Government funds when it paid Liferay to
develop a system that it had already paid another vendor to develop. IAF, Tab 1
at 11, Tab 5 at 36, Tab 10 at 7-8. The record also shows that the appellant
exhausted his administrative remedies with respect to his internal complaint to
FEMA’s Office of Fraud and Investigation, which was subsequently referred to
the agency’s IG. IAF, Tab 1 at 22, Tab 10 at 8. However, we do not find any
evidence that the appellant exhausted his administrative remedies with respect to
his other alleged protected activities, i.e., his 2016 OSC disclosure, the OSC
whistleblower retaliation complaint itself, emails he sent to an agency human
resources official, and a February 11, 2019 email to the FEMA Administrator.
IAF, Tab 1 at 11-12, 15-16. Therefore, we find preponderant evidence that the
appellant exhausted his administrative remedies with respect to two of his alleged
protected activities: his 2015 disclosures to various agency officials and his
July 26, 2016 internal complaint to FEMA’s Office of Fraud and Investigations,
followed by his cooperation with an IG investigation.
The appellant made a nonfrivolous allegation that his two exhausted disclosures
were protected.
Regarding his first exhausted disclosure, the record shows that, several
times in 2015, the appellant disclosed to the Director, the Associate
Administrator, and several other officials that, among other things, “spending
funds to develop a system in Liferay after we just paid several million dollars to
develop a system in Salesforce is a waste of government funds.” IAF, Tab 5
8
at 36. According to the appellant, for reasons discussed in his 2014-2015
analysis, the agency’s choice of Liferay over Salesforce would be “without any
benefit.” Id. at 10. Based on these facts, as presented by the appellant, we find
that he made a nonfrivolous allegation that his 2015 disclosures were protected
under 5 U.S.C. § 2302(b)(8)(A) because he reasonably believed that they
evidenced a gross waste of funds. 4 See Hessami, 979 F.3d at 1369-70 (concluding
that a petitioner nonfrivolously alleged that a reasonable person in her position
could conclude that the prescription of a medical regimen that allegedly cost the
agency hundreds of thousands of dollars more than less costly alternatives was a
gross waste of funds). The administrative judge found that the appellant lacked a
reasonable belief that his disclosure evidenced any category of wrongdoing, based
on his statements in a November 30, 2015 email that “I do not and will not make
any appearances of disputing or countermanding [the Associate Administrator’s]
decision,” the incompleteness of the report upon which the Associate
Administrator relied was a “disservice” to her, and “if I were in her position and
not known any better, I would make the same decision.” ID at 10-11; IAF, Tab 5
at 32-33. We disagree with the administrative judge. The reasonableness of an
appellant’s belief that his disclosure was protected is determined from the
perspective of a reasonable person in his position. Mudd v. Department of
Veterans Affairs, 120 M.S.P.R. 365, ¶¶ 8-9 (2013). These conciliatory statements
in the appellant’s email about the quality of information provided to the Associate
Administrator do not defeat his claim.
The appellant alleges that his second exhausted disclosure was a July 26,
2016 internal complaint to FEMA’s Office of Fraud and Investigations. IAF,
4
In light of this finding, we decline to reach the issue of whether the appellant made a
nonfrivolous allegation that this disclosure also evidenced gross mismanagement or an
abuse of authority, as he asserts. IAF, Tab 5 at 16; see Bump v. Department of the
Interior, 69 M.S.P.R. 354, 361-62 & n.* (1996) (finding it unnecessary to determine
whether an appellant established jurisdiction over his disclosures as evidencing gross
mismanagement in light of the finding that the Board had jurisdiction over the same
disclosures as evidencing a perceived regulatory violation).
9
Tab 5 at 6. The appellant included a copy of this complaint for the appeal file.
Id. at 38-63. This disclosure contains, among other things, substantially the same
allegations regarding a gross waste of funds as discussed above in connection
with the appellant’s first disclosure. Id. at 38-45. We therefore find that the
appellant has also made a nonfrivolous allegation that this disclosure was
protected under 5 U.S.C. § 2302(b)(8)(A). 5 The appellant also alleges that, in
September 2016, the Office of Fraud and Investigations forwarded this complaint
to the IG, which interviewed the appellant and the Associate Administrator. Id.
at 6. We therefore find that the appellant has made a nonfrivolous allegation that,
at this point, his activity also became protected under 5 U.S.C. § 2302(b)(9)(C).
That provision identifies “cooperating with or disclosing information to” the IG
as a protected activity.
In sum, we find that the appellant has made nonfrivolous allegations that
his two exhausted disclosures were protected. Those disclosures are (1)
disclosures in 2015 to the Director, the Associate Administrator, and several other
agency officials evidencing a gross waste of funds under 5 U.S.C. § 2302(b)(8)
(A), and (2) a July 26, 2016 internal complaint to FEMA’s Office of Fraud and
Investigations evidencing a gross waste of funds under § 2302(b)(8)(A), 6
5
This activity would clearly be protected under 5 U.S.C. § 2302(b)(9)(C) as currently
enacted, as a disclosure to an agency “component responsible for internal investigation
or review.” However, at the time the appellant made this disclosure, coverage under
5 U.S.C. § 2302(b)(9)(C) was limited to communications with OSC or an IG of an
agency. 5 U.S.C. § 2302(b)(9)(C) (2015) (amended in relevant part by the National
Defense Authorization Act for Fiscal Year 2018, Pub. L. No. 115-91, § 1097(c)(1)(A),
131 Stat. 1283, 1618 (2017)). The subsequent amendments to this statute are not
retroactive. Edwards v. Department of Labor, 2022 MSPB 9, ¶¶ 29-33.
6
We do not make a determination here as to whether the appellant made either of his
disclosures in the normal course of his duties. See Williams v. Department of Defense,
2023 MSPB 23, ¶¶ 9-12 (finding that a determination of whether a disclosure was made
in the normal course of an appellant’s duties should be made as part of an appellant’s
prima facie case after full development of the record, rather than at the jurisdictional
stage of an IRA appeal).
10
followed by cooperation with the IG, protected under § 2302(b)(9)(C), about the
same disclosure.
The appellant has made a nonfrivolous allegation that the agency took or
threatened to take five personnel actions against him.
As stated above, the appellant has claimed six distinct personnel actions in
this IRA appeal. However, we find it appropriate to consider the appellant’s two
hostile work environment claims together with his denial of reasonable
accommodation claim as part of a single alleged personnel action. The Board has
recognized that, under 5 U.S.C. § 2302(a)(2)(A)(xii), a hostile work environment
may constitute a personnel action to the extent that it amounts to a significant
change in duties, responsibilities, or working conditions. Savage v. Department
of the Army, 122 M.S.P.R. 612, ¶ 23 (2015), overruled in part on other grounds
by Pridgen v. Office of Personnel Management, 2022 MSPB 31, ¶¶ 23-25. 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 rise to the level of a personnel action under
§ 2302(a)(2)(A)(xii). Skarada v. Department of Veterans Affairs, 2022 MSPB 17,
¶ 16. It is not clear to us why the appellant has attempted to separate his
allegations of a hostile work environment into two distinct personnel actions,
especially considering that the claimed periods of hostile work environment are
continuous, and such claims, by their very nature, involve repeated conduct, a
single incident of which may not be actionable on its own. Hamley v. Department
of the Interior, 122 M.S.P.R. 290, ¶ 7 (2015). We therefore find it appropriate to
consider the appellant’s hostile work environment claims together as a single
allegation of significant change in duties, responsibilities, and working
conditions.
Regarding the claimed denial of reasonable accommodation, such an action
is not separately enumerated under 5 U.S.C. § 2302(a)(2)(A), and the appellant
has not otherwise explained why he believes that it fits the definition of
11
“personnel action” under that subparagraph. See Reid v. Merit Systems Protection
Board, 508 F.3d 674, 679 (Fed. Cir. 2007) (declining to consider a conclusory
allegation of a denial of reasonable accommodation for a disability as a
“personnel action”). Nevertheless, we find it appropriate to consider this matter
as part of the appellant’s allegations of a significant change in duties,
responsibilities, and working conditions. See Covarrubias v. Social Security
Administration, 113 M.S.P.R. 583, ¶ 15 n.4 (2010) (finding a nonfrivolous
allegation of a significant change in working conditions based, in part, on
disability discrimination), overruled on other grounds by Colbert v. Department
of Veterans Affairs, 121 M.S.P.R. 677, ¶ 12 n.5 (2014).
Turning to the substance of the appellant’s allegations, we find that some
of them are too vague and conclusory to rise to the level of nonfrivolous
allegations that would merit a finding of Board jurisdiction. See Lewis v.
Department of Defense, 123 M.S.P.R. 255, ¶ 12 (2016) (finding that an
appellant’s allegations regarding a hostile environment and mismanagement were
too vague and conclusory to rise to the level of nonfrivolous allegations that
would merit a finding of the Board's jurisdiction). For instance, the appellant
states that, in February 2018, Director 1 issued a memorandum outlining which of
the appellant’s requested accommodations had been granted, which had been
denied, and which were still being considered, and that some of the contents of
the memorandum were inaccurate. 7 Id. at 10. However, the appellant does not
state which of his requested accommodations were denied or explain what was
inaccurate about Director 1’s memorandum. Id.We find that some of the appellant’s other allegations are more than
conclusory and are sufficiently detailed to rise to the level of nonfrivolous. In
7
The appellant’s first- and second-line supervisors are the Deputy Division Director
and Division Director, respectively. IAF, Tab 5 at 39. At some point (the record does
not reveal exactly when), both of these positions changed hands. We refer to the
incumbents of these positions as Deputy Directors 1 and 2 and Directors 1 and 2, in
order of their tenure.
12
particular, the appellant alleges that the agency reorganized his department to
remove two components from his supervision, thereby depriving him of human
resources and administrative support staff. IAF, Tab 5 at 7; see McDonnell v.
Department of Agriculture, 108 M.S.P.R. 443, ¶ 23 (2008) (finding that the
appellant made a nonfrivolous allegation of a significant change in duties,
responsibilities, or working conditions in connection with an alleged undermining
of her supervisory authority). The appellant also alleges that “he was excluded
from performing several of his previous work duties,” including the Division’s
budget responsibilities. IAF, Tab 5 at 7, 167; see Askew v. Department of the
Army, 88 M.S.P.R. 674, ¶ 24 (2001) (finding that the removal of significant duties
is a personnel action). Considering these matters in conjunction with the
appellant’s other specific allegations, including that the agency began denying
him routine travel requests and Director 1 and Deputy Director 1 became
confrontational towards him during routine work meetings, we find that the
appellant has made a nonfrivolous allegation that, in the aggregate, the agency
subjected him to a significant change in duties, responsibilities, or working
conditions. 8 IAF, Tab 5 at 18-19, 21, 167-68.
The appellant’s remaining claimed personnel actions clearly fall under
5 U.S.C. § 2302(a)(2)(A). The Board has found that placement on a PIP, by
definition, involves a threatened personnel action, such as a reduction in grade or
a removal, and is therefore within the Board’s IRA jurisdiction. Gonzales v.
Department of Housing & Urban Development, 64 M.S.P.R. 314, 319 (1994). In
addition, a letter of reprimand is a “disciplinary or corrective action” under
5 U.S.C. § 2302(a)(2)(A)(iii). Gonzales, 64 M.S.P.R. at 319. Furthermore,
5 U.S.C. § 2302(a)(2)(A)(viii) specifically includes a performance evaluation
under the definition of “personnel action.” Gonzales, 64 M.S.P.R. at 319.
Although the appellant lists his February 2018 and February 2019 performance
8
In considering the appellant’s alleged hostile work environment on the merits, the
administrative judge must consider the agency’s actions both individually and
collectively. Skarada, 2022 MSPB 17, ¶ 16.
13
evaluations as a single personnel action, we find that they are separate personnel
actions taken at different times by different officials and that they should be
analyzed as such. For these reasons, we find that the appellant has made
nonfrivolous allegations that the agency imposed the following personnel actions
or threatened personnel actions upon him: (1) A significant change in duties,
responsibilities, and working conditions beginning in 2017, (2) a December 2,
2016 PIP, (3) a February 10, 2017 letter of reprimand, (4) an unfavorable
performance evaluation in February 2018, and (5) an unfavorable performance
evaluation in February 2019.
The appellant made a nonfrivolous allegation that his protected activity was a
contributing factor in some of the personnel actions.
The most common way of proving the contributing factor element of a
whistleblower claim is the knowledge/timing test. Chavez v. Department of
Veterans Affairs, 120 M.S.P.R. 285, ¶ 27 (2013). Under that test, an appellant
can prove that his disclosure was a contributing factor in a personnel action
through evidence that the official taking the personnel action knew of the
protected disclosure or activity and took the personnel action 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. 5 U.S.C. § 1221(e)(1); Chavez,
120 M.S.P.R. 285, ¶ 27. However, even if the knowledge/timing test is not
satisfied, an appellant can still prove contributing factor by alternative means. In
that case, the Board will consider other evidence, such as that pertaining to the
strength or weakness of the agency’s reasons for taking the personnel action,
whether the whistleblowing was personally directed at the proposing or deciding
officials, and whether those individuals had a desire or motive to retaliate against
the appellant. Dorney v. Department of the Army, 117 M.S.P.R. 480, ¶ 15 (2012).
As the first step of our contributing factor analysis, we will identify the
officials who were involved in the alleged personnel actions at issue. The
appellant alleged that the hostile work environment (significant change in duties,
14
responsibilities, and working conditions) was perpetrated by Director 1 and
Deputy Director 1. IAF, Tab 5 at 18-21. The appellant did not provide a copy of
the PIP notice, and he did not specifically identify the official who decided to
place him on a PIP. However, we take notice that a PIP would normally be
implemented by an employee’s direct supervisor, and it would be very unusual for
PIP proceedings to begin without a supervisor’s input. We therefore infer that
Deputy Director 1, Director 1, or both were involved in the decision to place the
appellant on a PIP in December 2016. See Cahill v. Merit Systems Protection
Board, 821 F.3d 1370, 1374-75 (Fed. Cir. 2016) (finding a nonfrivolous
allegation of contributing factor by drawing likely inferences appropriate to the
context of the appellant’s allegations).
The record shows that the February 10, 2017 letter of reprimand was issued
by Deputy Director 1. IAF, Tab 5 at 163-66. The appellant alleges that his
February 2018 performance evaluation was issued by Deputy Director 1 and
Director 1, his first- and second-line supervisors, as would be expected. Id. at 9.
Finally, the appellant alleges that his February 2019 performance evaluation was
issued by Deputy Director 2 and Director 2. Id. It therefore appears that, with
the exception of the February 2019 performance evaluation, Director 1 and
Deputy Director 1 were the officials responsible for taking all of these claimed
personnel actions. In addition, the appellant alleges that the Associate
Administrator was partially responsible for the significant change in duties,
responsibilities, and working conditions because she was involved in denying
some of his travel requests. IAF, Tab 1 at 7-8.
We next determine whether the appellant has made a nonfrivolous
allegation that his first disclosures in 2015 were a contributing factor in any of
these personnel actions. The appellant specifically alleged that he made these
disclosures to Director 1, Deputy Director 1, the Associate Administrator, and
various other agency officials. IAF, Tab 5 at 5, 16. This allegation is supported
by evidence in the form of copies of emails between the appellant and Deputy
15
Director 1, dated late November and early December 2015. Id. at 31-37. We find
that, under the knowledge/timing test, the appellant has made a nonfrivolous
allegation that his 2015 disclosures were a contributing factor in the December 2,
2016 PIP, the February 10, 2017 letter of reprimand, and those aspects of the
significant change in duties, responsibilities, and working conditions that
occurred through the end of 2017. See Mastrullo v. Department of Labor,
123 M.S.P.R. 110, ¶ 21 (2015) (finding that a personnel action taken within
approximately 1 to 2 years of the appellant’s disclosures satisfies the
knowledge/timing test).
As for the February 2018 performance evaluation and subsequent changes
in duties, responsibilities, and working conditions, considered in isolation, these
would likely be too remote to draw an inference of contributing factor under the
knowledge/timing test. See Salinas v. Department of the Army, 94 M.S.P.R. 54,
¶ 10 (2003) (finding that a period of more than 2 years between an alleged
disclosure and the alleged personnel actions was too remote to satisfy the
knowledge/timing test). However, to the extent that these personnel actions can
be viewed as a continuation of the earlier personnel actions, the appellant could
satisfy the contributing factor element. See Agoranos v. Department of Justice,
119 M.S.P.R. 498, ¶¶ 22-23 (2013) (finding that personnel actions taken more
than 2 years after the protected disclosure satisfied the knowledge/timing test
when they were part of a continuum of related performance-based personnel
actions, the first of which occurred within 2 years of the disclosure). Resolving
all doubts and drawing reasonable inferences in the appellant’s favor at this
jurisdictional stage, we find that he has made a nonfrivolous allegation that his
2015 disclosures were a contributing factor in these later actions as well.
As for the February 2019 performance evaluation, the appellant alleged that
Director 2 and Deputy Director 2 were aware, “either directly or institutionally,”
of his disclosures. IAF, Tab 1 at 19. He offers no explanation of how these two
officials might have come to know of his disclosures or why he thinks that they
16
did. We find that this conclusory allegation does not satisfy the nonfrivolous
standard of 5 C.F.R. § 1201.4(s). Nor has the appellant alleged that Director 2 or
Deputy Director 2 were influenced in their decision by anyone with actual
knowledge of his disclosures. Cf. Aquino v. Department of Homeland Security,
121 M.S.P.R. 35, ¶ 19 (2014) (finding that 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).
Because the appellant has not satisfied the knowledge element of the
knowledge/timing test with respect to his February 2019 performance evaluation,
we will consider other evidence to determine whether the appellant has made a
nonfrivolous allegation of contributing factor. See Dorney, 117 M.S.P.R. 480,
¶ 15. However, the appellant has presented no evidence or allegations to cast
doubt on the strength of the agency’s reasons for his February 2019 performance
evaluation; he has not even submitted a copy of that evaluation for the record.
Nor is there any indication that Director 2 or Deputy Director 2 were personally
implicated in the appellant’s 2015 disclosures. In fact, there is no evidence that
these two officials had any involvement with FEMA whatsoever until they were
appointed to their new positions years later. Finally, in the absence of any
indication that these officials had knowledge, or were influenced by individuals
with knowledge, of the appellant’s disclosures, there can be no inference of
retaliatory motive on their part. See Geyer v. Department of Justice, 70 M.S.P.R.
682, 693 (1996) (observing that disclosures of which a deciding official has
neither knowledge nor constructive knowledge cannot contribute toward any
retaliatory motive on his part), aff’d per curiam, 116 F.3d 1497 (Fed. Cir. 1997)
(Table). For these reasons, we find that the appellant has made a nonfrivolous
allegation that his 2015 disclosures were a contributing factor in all the personnel
actions at issue except for his February 2019 performance evaluation.
17
We now turn to the contributing factor element with respect to the
appellant’s July 26, 2016 complaint to FEMA’s Office of Fraud and
Investigations. The appellant alleges that the Associate Administrator was aware
of this disclosure because the IG interviewed her about it later that year. IAF,
Tab 5 at 6. The administrative judge, however, found that the appellant failed to
make a nonfrivolous allegation of contributing factor with respect to this
personnel action. ID at 9-10. Specifically, she found a lack of any evidence as to
what information the Associate Administrator may have communicated to any
manager responsible for taking a covered personnel action against the appellant.
ID at 9.
As an initial matter, we find that the appellant has made a nonfrivolous
allegation of contributing factor with respect to his significant change in duties,
responsibilities, and working conditions to the extent that the Associate
Administrator herself contributed to these by denying the appellant’s travel
requests. IAF, Tab 1 at 7-8. Furthermore, the administrative judge did not
consider whether the appellant might have made a nonfrivolous allegation of
contributing factor with respect to the Directors and Deputy Directors even absent
a nonfrivolous allegation that they had knowledge of his July 26, 2016 disclosure.
In this regard, we find little reason to doubt the agency’s reasons for the actions it
took. Neither the PIP notice nor the performance evaluations are contained in the
record, and it is otherwise impossible for us to ascertain the agency’s reasons for
these actions. The letter of reprimand is contained in the record, but having
reviewed it, we do not detect any impropriety. IAF, Tab 5 at 163-66. Deputy
Director 1 quoted back to the appellant excerpts from several recent emails that
the appellant had sent, characterizing them as “sarcastic, unprofessional, and
inappropriate.” Id. at 163-64. The appellant seems to contend that it was not
inappropriate for him to call his supervisor “tone deaf,” but even if we were to
agree with the appellant (which we do not), he has not addressed the other seven
18
email excerpts underlying the reprimand, which appears to be generally
well-founded on its face. IAF, Tab 5 at 8, 163-64.
As to the significant changes in duties, responsibilities, and working
conditions, there is some reason to question the agency’s sudden curtailment of
the appellant’s travel. In particular, the appellant asserts that the agency justified
its denial of one travel request by calling the denial a reasonable accommodation.
IAF, Tab 5 at 7-8, 10. However, the agency’s stated reasons for its various other
actions, such as removing the appellant’s budgeting duties and reorganizing the
Technological Hazards Division, are absent from the record. Without even
knowing what the agency’s stated reasons for these actions were, we cannot draw
an inference that the reasons might have been pretextual. 9 Nevertheless, other
evidence weighs in favor of finding contributing factor. Specifically, both
Director 1 and Deputy Director 1 were directly implicated in the appellant’s
July 26, 2016 disclosure. The appellant named them and criticized them harshly
for misrepresenting the truth and “playing active and complicit roles in covering
up” the matters he was reporting. Id. at 38, 44-46. The lack of any evidence or
specific allegation that these officials knew about this disclosure prevents us from
inferring retaliatory motive, but we note that the agency informed the appellant of
its first personnel action, the impending PIP, in the fall of 2016, right around the
time that the IG allegedly interviewed the Associate Administrator. IAF, Tab 5 at
6, 8. Resolving any doubts about this matter in the appellant’s favor, we find that
the circumstantial evidence is sufficient to raise an inference that the appellant’s
July 26, 2016 disclosure was a contributing factor in the alleged significant
changes in duties, responsibilities, and working conditions, the PIP, the letter of
9
Nothing in this order should be taken as a finding relevant to “the strength of the
agency’s evidence in support of its action” for purposes of assessing the agency’s
affirmative defense under Carr v. Social Security Administration, 185 F.3d 1318, 1323
(Fed. Cir. 1999). Not only might some additional evidence on this matter come to light
as the appeal progresses, but the burden on the affirmative defense lies with the agency
rather than the appellant. 5 U.S.C. § 1221(e)(2); Siler v. Environmental Protection
Agency, 908 F.3d 1291, 1299 (Fed. Cir. 2018); 5 C.F.R. § 1209.7(b).
19
reprimand, and the February 2018 performance evaluation. However, because
neither Director 2 nor Deputy Director 2 were directly implicated in this
disclosure, and the personnel action that they took was relatively remote in time,
we do not find a nonfrivolous allegation of contributing factor with respect to the
February 2019 performance evaluation.
This appeal is remanded for adjudication of the merits.
Because the appellant proved that he exhausted his administrative remedies
as set forth above, and made nonfrivolous allegations that he made protected
disclosures that were a contributing factor in several personnel actions, he has
established jurisdiction over his appeal and is entitled to the merits hearing that
he requested. IAF, Tab 1 at 2; see Herman v. Department of Justice,
115 M.S.P.R. 386, ¶¶ 6-8 (2011). On remand, the administrative judge shall
afford the appellant an opportunity to prove by preponderant evidence that his
2015 disclosures and July 26, 2016 disclosures were a contributing factor in the
PIP, the letter of reprimand, the February 2018 performance evaluation, and a
significant change in duties, responsibilities, and working conditions. See
Runstrom v. Department of Veterans Affairs, 123 M.S.P.R. 169, ¶ 12 (2016). If
the administrative judge finds that the appellant proved his case in chief, she must
determine whether the agency has proved by clear and convincing evidence that it
would have taken these same personnel actions even in the absence of the
appellant’s disclosures. See id.20
ORDER
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.