Nathaniel Willingham v. Department of the Navy ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NATHANIEL J. WILLINGHAM, DOCKET NUMBER
Appellant, DC-1221-19-0722-W-1
v.
DEPARTMENT OF THE NAVY, DATE: July 31, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Nathaniel J. Willingham , Jurupa Valley, California, pro se.
Henry Karp , 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
VACATE the initial decision, and REMAND the case to the Washington Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant was employed with the agency’s Military Sealift Command
as an Equal Employment Opportunity (EEO) Specialist, GS-12. Initial Appeal
File (IAF), Tab 6 at 20. On August 30, 2018, the agency proposed his removal
for job-related issues. Id. at 26-29. Following the appellant’s reply, the deciding
official removed the appellant effective March 31, 2019, based on charges of
improper use of records covered by the Privacy Act, misuse of his position, and
three specifications of a failure to follow proper procedures charge. 2 Id. at 20-24.
Thereafter, the appellant filed a complaint with the Office of Special Counsel
(OSC), claiming that his removal was in reprisal for various whistleblowing
disclosures and activities he had made and engaged in between December 2017
and January 2019. IAF, Tab 1 at 20. On July 24, 2019, OSC informed the
appellant that it was terminating its inquiry into his allegations and that he had a
right to seek corrective action from the Board. Id.The appellant timely filed an IRA appeal with the Board, claiming that his
removal was in reprisal for whistleblowing activity. Id. at 5. Specifically, he
alleged that he made 11 disclosures to his supervisors, which concerned agency
policy related to reasonable accommodation, the processing of EEO complaints,
other alleged incidents relating to potential violations of laws, rules, or
regulations, and alleged abuses of authority. Id. at 17-19. He also claimed that
his removal was in reprisal for a complaint he filed with the Office of Inspector
General (OIG) and EEO complaints he had filed, both on his own behalf and as a
class agent as a part of a class action EEO complaint, for which he provided
evidence and gave testimony. Id. at 5. The administrative judge issued an order
2
The notice of proposed removal included four specifications to the failure to follow
proper procedures charge; however, the deciding official only sustained three of those
specifications. IAF, Tab 6 at 22, 27-28.
3
on jurisdiction, informing the appellant of his jurisdictional burden and stating
that, because it appeared that the appellant exhausted his administrative remedy
with OSC concerning his removal and his alleged protected disclosures and
activities, no further evidence or argument was needed on the issue of OSC
exhaustion. IAF, Tab 3 at 1-3.
Following a response from the appellant to the order on jurisdiction,
IAF, Tab 5, the administrative judge issued an initial decision dismissing the
appeal for lack of jurisdiction, IAF, Tab 8, Initial Decision (ID). Specifically, the
administrative judge considered the appellant’s alleged disclosures and concluded
that he failed to nonfrivolously allege that they were protected under 5 U.S.C.
§ 2302(b)(8). ID at 5-8. He also found that the appellant’s alleged protected
activity of participating in a class action EEO complaint as a class agent did not
constitute protected activity under section 2302(b)(9)(B) as a matter of law,
and that, although the appellant’s OIG complaint constituted protected activity
under section 2302(b)(9)(C), the appellant failed to nonfrivolously allege that
such activity contributed to his removal. ID at 8-12. Therefore, the
administrative judge found that the appellant failed to nonfrivolously allege
Board jurisdiction over his IRA appeal, and he dismissed the appeal. ID at 12.
The appellant has filed a petition for review of the initial decision, arguing
that it was “unfair [for the administrative judge] to judge [his] allegations as
frivolous” and that the administrative judge improperly assessed the merits of the
appeal at the jurisdictional stage. Petition for Review (PFR) File, Tab 1 at 3-4.
He also generally challenges the administrative judge’s analysis of some of his
claims regarding EEO processing issues and reasserts that his role as a class agent
for a class action EEO complaint constitutes protected activity under
section 2302(b)(9)(B). Id. at 5. Further, he challenges the administrative judge’s
conclusion that his OIG complaint was not a contributing factor to his removal.
Id. at 4. He also submits a declaration from a coworker regarding his
professional relationship with the appellant and his observations of the
4
appellant’s duties and the alleged facts surrounding his disclosures. Id. at 7-10.
The agency has filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction over an IRA appeal under the Whistleblower
Protection Enhancement Act of 2012 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 protected activity was a contributing factor in the
agency’s decision to take or fail to take a personnel action.
Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016).
As an initial matter, we note that the administrative judge did not discuss
the question of exhaustion in the initial decision. ID at 3-12. As mentioned
above, however, he concluded in a prior order that the appellant showed that he
exhausted his administrative remedy with OSC with respect to all of his claims.
IAF, Tab 3 at 2. Neither party has challenged this conclusion, and we believe the
record otherwise supports it. OSC’s close-out letter summarizes the allegations
brought to it by the appellant, which include, with varying degrees of specificity,
all of the allegations that the appellant brought to the Board. IAF, Tab 1 at 20.
Accordingly, although the administrative judge did not discuss exhaustion in the
initial decision, we agree with his conclusion that the appellant’s claims were all
exhausted with OSC, and we discern no reason to disturb it. See, e.g., Crosby
v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to
disturb the administrative judge’s findings when she considered the evidence as a
whole, drew appropriate inferences, and made reasoned conclusions).
5
The appellant nonfrivolously alleged that he made four protected disclosures
under 5 U.S.C. § 2302(b)(8).
A nonfrivolous allegation of a protected disclosure is an allegation of facts
that, if proven, would show that the appellant disclosed a matter that a reasonable
person in his position would believe evidenced one of the categories of
wrongdoing specified in 5 U.S.C. § 2302(b)(8). Salerno, 123 M.S.P.R. 230, ¶ 6.
The test to determine whether a putative whistleblower has a reasonable belief in
the disclosure is an objective one: whether a disinterested observer with
knowledge of the essential facts known to and readily ascertainable by the
employee could reasonably conclude that the actions of the agency evidenced a
violation of law, rule, regulation, gross mismanagement, a gross waste of funds,
an abuse of authority, or a substantial and specific danger to public health or
safety. Id.As noted above, the administrative judge found that the appellant failed to
nonfrivolously allege that he made a protected disclosure. ID at 5.
Specifically, he found that the appellant’s alleged disclosures regarding the
agency’s processing of EEO complaints and its interpretation of EEO policy and
law concerned EEO matters covered under 5 U.S.C. § 2302(b)(1) and (b)(9), and
that such matters are excluded from whistleblowing protection coverage under
5 U.S.C. § 2302(b)(8). ID at 5-7. He further found that other disclosures were
allegations of wrongdoing too vague to rise to the level of protected disclosures.
ID at 7-8. Although we agree with some of the administrative judge’s
conclusions, we believe, as explained below, that 4 of the appellant’s 11 alleged
disclosures are protected under section 2302(b)(8).
Of the appellant’s three disclosures regarding reasonable
accommodations, he nonfrivolously alleged that one of them is
protected under 5 U.S.C. § 2302(b)(8).
Below, the appellant alleged that he disclosed to his first- and second-level
supervisors that the agency was not offering full-time telework as a reasonable
accommodation, that telework as a reasonable accommodation was limited to
6
2 days per week, and that the agency was not offering telework of any kind for
people with temporary disabilities in violation of disability law. IAF, Tab 1
at 17. The administrative judge concluded that, because these disclosures
concerned EEO-related issues, and such matters are generally excluded from
whistleblower protection coverage, the appellant failed to nonfrivolously allege
that the disclosures were protected. ID at 5-6 (citing Applewhite v. Equal
Employment Opportunity Commission, 94 M.S.P.R. 300, ¶ 13 (2003)). Although
the administrative judge is correct that, generally, allegations asserting EEO
violations under section 2302(b)(1) and (b)(9) are excluded from coverage under
section 2302(b)(8), see Applewhite, 94 M.S.P.R. 300, ¶ 13; see also Edwards v.
Department of Labor, 2022 MSPB 9, ¶¶ 13, 22-23, aff’d, No. 2022-1967,
2023 WL 4398002 (Fed. Cir. July 7, 2023), the appellant was not asserting that
the agency violated these provisions as they related to his own rights, IAF, Tab 1
at 17. Rather, it appears that he made these allegations in his official capacity as
an EEO Specialist, claiming that the agency was acting improperly with respect to
its EEO function. Id. Therefore, his allegations are not of the kind generally
contemplated by section 2302(b)(1) and (b)(9). As such, we consider them
further below.
The appellant’s allegations that the agency was not offering full-time
telework as a reasonable accommodation and that telework as a reasonable
accommodation was limited to 2 days per week appear to evidence a policy
dispute with agency officials regarding what degree of telework is required as a
reasonable accommodation. The Board has stated that “general philosophical or
policy disagreements with agency decisions or actions are not protected unless
they separately constitute a protected disclosure of one of the categories of
wrongdoing listed in section 2302(b)(8)(A).” See Webb v. Department of the
Interior, 122 M.S.P.R. 248, ¶ 8 (2015); see also 5 U.S.C. § 2302(a)(2)(D).
Here, the appellant has not otherwise alleged that failing to offer full-time
telework or limiting telework to 2 days per week as a reasonable accommodation
7
concerns any of the alleged categories of wrongdoing listed under section 2302(b)
(8)(A). IAF, Tab 1 at 17. Thus, although we agree with the administrative judge
that these disclosures are not protected, we emphasize that they are not protected
not because they concern EEO matters, but rather because they concern policy
disputes. See Webb, 122 M.S.P.R. 248, ¶ 8.
However, we find that the appellant nonfrivolously alleged that his
disclosure regarding the agency’s failure to offer telework of any kind to people
with temporary disabilities in violation of disability law is protected because it
alleges a violation of law. IAF, Tab 1 at 17. To make a protected disclosure of a
violation of a law, rule, or regulation, an employee ordinarily must identify a
specific law, rule, or regulation that was violated, which the appellant has not
done here; however, the U.S. Court of Appeals for the Federal Circuit has stated
that an appellant need not allege a violation of law with precise specificity “when
the statements and circumstances surrounding the making of those statements
clearly implicate an identifiable violation of law, rule, or regulation.” See Langer
v. Department of the Treasury, 265 F.3d 1259, 1266 (Fed. Cir. 2001).
Here, the appellant has cited an Equal Employment Opportunity
Commission (EEOC) case, which discusses telework as a reasonable
accommodation and provides the EEOC’s articulation of the related law.
IAF, Tab 1 at 17 (citing Jody L. v. Department of the Air Force, EEOC Appeal
No. 0120151351, 2018 WL 619160, at *4-8 (Jan. 17, 2018)). 3 This citation,
combined with the appellant’s position as an EEO Specialist and his broader
reference to disability law as it relates to an option of telework as a reasonable
accommodation, warrants the conclusion that the appellant has implicated an
identifiable law, rule, or regulation. IAF, Tab 1 at 17. Thus, we find that the
appellant nonfrivolously alleged that he made a protected disclosure in this
regard.
3
The appellant’s citation to this EEOC case appears to have some typographical errors,
but it is clear he is referencing the case cited above.
8
Of the appellant’s four disclosures regarding the agency’s
processing of EEO complaints, he nonfrivolously alleged that one of
those disclosures is protected under 5 U.S.C. § 2302(b)(8).
The appellant asserted below that he disclosed to his first- and second-level
supervisors that the agency failed to use a tracking system when processing EEO
complaints, that agency human resources professionals exerted improper
influence over the reasonable accommodation process, that the agency violated
the EEOC’s Management Directive (MD) 110, which concerns how an EEO
counselor is supposed to respond to an initial complaint, and that the agency lied
about its processing issues. Id. at 17-18. The administrative judge construed
these alleged disclosures as ones concerning EEO matters and, thus, outside of
the scope of protection under 5 U.S.C. § 2302(b)(8). ID at 5-7. Again, we
disagree with the administrative judge’s categorization of these claims because
they concern alleged wrongdoing in the agency’s EEO operations as they relate to
the function of carrying out an EEO-based mission, and not the appellant’s
personal claim of EEO violations. Accordingly, we consider these claims below.
Regarding the disclosure that agency employees failed to properly use the
tracking system for pending EEO complaints, the appellant alleged that this
constituted gross mismanagement. IAF, Tab 1 at 17-18. The Board has stated
that “gross mismanagement” is “more than de minimis wrongdoing or
negligence,” and that it does not mean “action or inaction which constitutes
simple negligence or wrongdoing.” See Smith v. Department of the Army,
80 M.S.P.R. 311, ¶ 8 (1998). Rather, an appellant discloses gross
mismanagement when he alleges that a management action or inaction creates a
substantial risk of significant adverse impact on the agency’s ability to
accomplish its mission. Cassidy v. Department of Justice, 118 M.S.P.R. 74, ¶ 8
(2012); see Smith, 80 M.S.P.R. 311, ¶ 8. Here, the appellant’s allegation is more
one of negligence; indeed, he refers to the agency’s failure to use a tracking
system as “negligence” and a “transgression [].” IAF, Tab 1 at 17-18. There is
9
nothing in this disclosure that can be construed as an expression of a concern of
“substantial risk of significant adverse impact on the agency’s ability to
accomplish its mission.” See Cassidy, 118 M.S.P.R. 74, ¶ 8. Accordingly, we
find that the appellant failed to nonfrivolously allege that this disclosure is
protected.
The appellant also alleged below that, during the reasonable
accommodation process, the agency allowed the Human Resources Board or a
member thereof to “influence reasonable accommodation decisions using criteria
outside of disability law.” IAF, Tab 1 at 17. In the initial decision, the
administrative judge appears to have combined this alleged disclosure with the
appellant’s claim that he informed the OIG that the agency allegedly violated the
MD 110 by failing to maintain a “firewall” between the EEO function and the
agency’s defensive function. ID at 6 n.1; IAF, Tab 5 at 8. Neither party has
challenged this construction of the appellant’s claim on review, and we discern no
inherent reason to find such a construction unreasonable. PFR File, Tabs 1, 3.
In considering this alleged disclosure, the administrative judge concluded
that, because the MD 110 does not apply to the agency’s reasonable
accommodation decision-making process, a disinterested observer in the
appellant’s position as an EEO Specialist would not believe that such provisions
applied to the agency’s internal reasonable accommodation review and
deliberations. ID at 6 n.1. The appellant has not challenged the conclusion
regarding the MD 110’s coverage, PFR File, Tab 1, and the administrative judge
otherwise correctly applied the disinterested observer standard to conclude that
the appellant did not have a reasonable belief that the actions of the agency
evidenced the type of wrongdoing defined in section 2302(b)(8)(A), ID at 6 n.1;
see Salerno, 123 M.S.P.R. 230, ¶ 6. Accordingly, we agree with the
administrative judge that the appellant failed to nonfrivolously allege that this
disclosure was protected.
10
The appellant also alleged below that he disclosed to his first- and second-
level supervisors that the agency violated the MD 110 when processing EEO
complaints because agency employees were not giving the proper information to
complainants upon receipt of an initial complaint. IAF, Tab 1 at 17. Because the
Board has held that there is no de minimis exception to an allegation that an
agency has violated a law, rule, or regulation, we find that the appellant
nonfrivolously alleged that this disclosure was protected. See Hudson
v. Department of Veterans Affairs, 104 M.S.P.R. 283, ¶ 11 (2006) (stating that a
disclosure of a violation of law, rule, or regulation is protected even if the
disclosure is of a trivial or de minimis violation).
Regarding the appellant’s alleged disclosure that he reported to his first-
and second-level supervisors that the agency “lied to cover up their utilization” of
the above-discussed “wrongful [EEO] processes,” IAF, Tab 1 at 17, the Board has
stated that disclosures must be specific and detailed, and not simply vague
allegations of wrongdoing, see Linder v. Department of Justice, 122 M.S.P.R. 14,
¶ 14 (2014). Because the appellant has failed to provide any contextual detail to
the alleged disclosure and has offered no more than the vague assertion that some
unidentified agency official lied at some undefined point in time to some
unspecified individual or organization, we find that the appellant failed to
nonfrivolously allege that this disclosure is protected.
Of the four remaining disclosures concerning other allegations of
violations of law, rule, or regulation, and abuses of authority, the
appellant nonfrivolously alleged that two of them are protected are
5 U.S.C. § 2302(b)(8).
The appellant alleged below that he disclosed to his first- and second-level
supervisors that the agency’s Complaints Manager “committed slander against
one of the upstanding attorneys in the Virginia area.” IAF, Tab 1 at 18.
The administrative judge considered this alleged disclosure and concluded that it
was a “vague allegation of wrongdoing that does not rise to the level of a
protected whistleblower disclosure.” ID at 7. He explained that there is no
11
“per se law, rule or regulation against slander; rather, it is a civil cause of action
that must be presented to a trier of fact and proven upon a showing of actual harm
or damage.” Id. He further stated that the appellant’s alleged disclosure reflects
nothing more than his personal opinion about, and disagreement with, his
coworker’s alleged statement regarding the private attorney. Id. The appellant
has not challenged this finding on review, and we discern no reason to disturb it.
The appellant also alleged below that he disclosed to his first- and second-
level supervisors that two agency employees sent an EEO complainant an
unredacted report of investigation (ROI) and investigative file containing private
identifiable information in violation of regulations “dealing with the Privacy
Act.” IAF, Tab 1 at 18. The administrative judge considered this allegation and
concluded that it was a “vague disclosure of agency wrongdoing that fails to meet
the nonfrivolous pleading standard.” ID at 7. He explained that the appellant’s
“bare assertion . . . fails to provide the requisite specificity needed to explain why
a reasonable person in the appellant’s position would believe such information
should have been redacted or withheld.” Id. We disagree. In a pleading below,
the appellant asserted that he was disciplined for similar conduct and that he
therefore had every reason to believe such conduct violated certain laws, rules, or
regulations. IAF, Tab 5 at 12-13. We find that this assertion is sufficient to
establish the appellant’s reasonable belief that he was disclosing a violation of
law, rule, or regulation. As such, we find that the appellant nonfrivolously
alleged that he made a protected disclosure in this regard.
The remaining two alleged wrongdoings that the appellant asserts he
disclosed to his first- and second-level supervisor include an allegation that he
had recently learned that another supervisor had called him an offensive and
profane name and had threatened to punch him in the face. IAF, Tab 1 at 18. He
claimed that agency management “promised an [O]IG investigation” into the
matter but “clandestinely” canceled it and orchestrated the appellant’s transfer
instead. Id. The appellant alleges that he disclosed this incident as an abuse of
12
authority. Id. His remaining alleged disclosure concerns a claim that an agency
official “fabricated a false allegation that [he] violated the Hatch Act.” Id. at 19.
The administrative judge did not address either of these alleged disclosures,
ID at 5-8, so we address them in the first instance here.
Regarding the alleged disclosure concerning the promised OIG
investigation and the appellant’s assertion that a failure to follow through with
that promise constitutes an abuse of authority, the Board has explained that an
employee discloses an abuse of authority when he alleges that a Federal official
has arbitrarily or capriciously exercised power, which has adversely affected the
rights of any person or has resulted in personal gain or advantage to himself or to
preferred other persons. Webb, 122 M.S.P.R. 248, ¶ 10 n.3. Here, the appellant’s
disclosure can reasonably be construed to allege that agency management
arbitrarily exercised its power to decline to pursue an OIG investigation, which
ultimately benefited the supervisor who allegedly made the offensive and profane
remarks. Given the minimal showing required to meet the nonfrivolous allegation
standard, we find that the appellant has met his burden of nonfrivolously alleging
that he made a protected disclosure in this regard. See Usharauli v. Department
of Health and Human Services, 116 M.S.P.R. 383, ¶ 19 (2011) (stating that any
doubt or ambiguity as to whether the appellant made a nonfrivolous jurisdictional
allegation should be resolved in favor of finding jurisdiction); see also
Jessup v. Department of Homeland Security, 107 M.S.P.R. 1, ¶ 10 (2007)
(observing that the appellant’s burden of making a nonfrivolous allegation is low
and requires only a minimal sufficient showing). 4
Regarding the appellant’s alleged disclosure concerning the claim that an
agency official falsely claimed that he violated the Hatch Act, the appellant
4
The Board in Jessup relied on the above-stated principle as it relates to an appellant’s
burden to nonfrivolously allege that his disclosure was a contributing factor in a
personnel action. Jessup, 107 M.S.P.R. 1, ¶ 10. Nonetheless, the nonfrivolous
allegation standard is the same whether it is applied to an allegation that an appellant
made a protected disclosure or to an allegation that such a protected disclosure was a
contributing factor in a personnel action.
13
appears to claim that this action constitutes an abuse of authority. IAF, Tab 1
at 18-19. However, the appellant’s assertion does not contain any allegation that
the agency official who allegedly claimed that the appellant violated the Hatch
Act obtained any personal gain or advantage as a result of his claim. Id.; see
Webb, 122 M.S.P.R. 248, ¶ 10 n.3. As such, we find that the appellant failed to
nonfrivolously allege that this disclosure was one of an abuse of authority, and
further find that the allegation does not include any other assertion of wrongdoing
described in section 2302(b)(8)(A). Accordingly, we find that the appellant failed
to make a nonfrivolous allegation in this regard.
To summarize, we find that the appellant nonfrivolously alleged that he
made a protected disclosure under 5 U.S.C. § 2302(b)(8) when he alleged that he
disclosed to his first- and second-level supervisor that: (1) the agency failed to
offer telework of any kind to people with temporary disabilities in violation of
EEOC law; (2) the agency violated the MD 110 when processing EEO complaints
because agency employees were not giving the proper information upon receipt of
an initial complaint; (3) two agency employees sent an EEO complainant an
unredacted ROI and investigative file containing private identifiable information
in violation of regulations “dealing with the Privacy Act”; and (4) agency
management promised an OIG investigation when it learned that a supervisor had
called the appellant an offensive and profane name and threatened to punch him
in the face, but “clandestinely” canceled it and orchestrated the appellant’s
transfer instead.
The administrative judge correctly found that the appellant nonfrivolously alleged
that he engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C) when he
filed an OIG complaint and also correctly found that the appellant failed to
nonfrivolously allege that his actions as a part of a class action EEO complaint
constitute protected activity under 5 U.S.C. § 2302(b)(9)(B).
The appellant also asserted below that he engaged in protected
whistleblowing activity when he participated in a class action EEO complaint as a
class agent, giving testimony and evidence in support of the complaint, and when
14
he filed an OIG complaint. IAF, Tab 1 at 5, Tab 5 at 4-9. The administrative
judge appears to have implicitly found that the OIG complaint constituted
protected activity, and we agree with that conclusion. ID at 10; see Fisher v.
Department of the Interior, 2023 MSPB 11, ¶ 8 (finding that disclosures of
information to an agency’s OIG are protected regardless of their content, as long
as such disclosures are made “in accordance with applicable provisions of law”).
Regarding the appellant’s allegation that he gave testimony and evidence as
a class agent who was a part of a class action EEO complaint, the appellant
claims that this constitutes protected activity under section 2302(b)(9)(B).
IAF, Tab 1 at 16. Section 2302(b)(9)(B) protects an employee who testifies for or
otherwise lawfully assists any individual in the course of exercising any appeal,
complaint, or grievance right granted by any law, rule, or regulation. 5 U.S.C.
§ 2302(b)(9)(B).
In assessing this allegation, the administrative judge found that, although
filing an EEO class complaint with the EEOC involves a right to complain, a right
that the Board acknowledges is related to the language in section 2302(b)(9)(B),
see Linder, 122 M.S.P.R. 14, ¶¶ 7, 9, the appellant here is “personally involved in
the proceeding . . . [and] like all other proposed class members, is seeking to have
his EEO rights vindicated,” ID at 9. He reasoned that the appellant’s role,
therefore, “is dissimilar from other types of protected activity the Board has
identified as within the aegis of section 2302(b)(9)(B), namely, serving as a
witness in another employee’s appeal, complaint, or grievance, or representing
another employee in any such proceeding.” ID at 10 (emphasis in original).
Rather, the administrative judge concluded that the appellant’s allegation falls
under section 2302(b)(1) and (b)(9)(A)(ii) because he “has a personal stake in the
viability of the underlying EEO litigation as a litigant.” Id. As such, he found
that this alleged activity fails, “as a matter of law,” to constitute protected
activity under section 2302(b)(9)(B). ID at 8.
15
On review, the appellant challenges these findings, asserting that the
administrative judge “ignored that [he] already had an individual [EEO] case,”
and that he was “help[ing] others by representing them in the class action.”
PFR File, Tab 1 at 5. He further claims that his relief was not enhanced by filing
the class action complaint and that, for the administrative judge to find that his
participation in the class action complaint would benefit him is to ignore his
individual EEO complaints. Id. The appellant’s arguments are unavailing.
Although the administrative judge did not address the appellant’s individual EEO
complaints, the Board has long held that an administrative judge’s failure to
discuss all of the evidence specifically does not mean that he did not consider it
in reaching his decision. Marques v. Department of Health and Human Services,
22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).
Moreover, the appellant has not explained how he would not benefit from a class
action EEO complaint, despite having his own individual EEO complaint, as it is
conceivable that a class action complaint could result in broader relief meant to
address the class that would not have been considered for his own complaint.
Accordingly, we discern no error in the administrative judge’s conclusion that the
appellant’s activity does not constitute protected activity under section 2302(b)(9)
(B), and instead is more closely aligned with the activity described in
section 2302(b)(9)(A)(ii). ID at 10. Because the Board lacks jurisdiction over an
alleged violation of section 2302(b)(9)(A)(ii), we agree with the administrative
judge that the appellant failed to nonfrivolously allege that he engaged in
protected activity in this regard. See Mudd v. Department of Veterans Affairs,
120 M.S.P.R. 365, ¶ 7 (2013).
The appellant nonfrivolously alleged that his protected disclosures were a
contributing factor to the agency’s decision to remove him, but we agree with the
administrative judge that the appellant failed to nonfrivolously allege that his
OIG complaint was a contributing factor to his removal.
Because the appellant nonfrivolously alleged that four of his disclosures
were protected under 5 U.S.C. § 2302(b)(8) and that he engaged in activity
16
protected under 5 U.S.C. § 2302(b)(9), he must next nonfrivolously allege that at
least one of those disclosures or his activity was a contributing factor to the
personnel action at issue. See Salerno, 123 M.S.P.R. 230, ¶ 5. To satisfy the
contributing factor criterion at the jurisdictional stage, the appellant need only
raise a nonfrivolous allegation that the fact of, or the content of, the protected
disclosure was one factor that tended to affect the personnel action in any way.
Id., ¶ 13. One way to establish this criterion is the knowledge/timing test, under
which an employee may nonfrivolously allege that the disclosure was a
contributing factor in a personnel action through circumstantial evidence, such as
evidence that the official who took the personnel action knew of the disclosure
and that the personnel action occurred within a period of time such that a
reasonable person could conclude that the disclosure was a contributing factor in
the personnel action. Id.Here, the appellant alleged that he made all four of the disclosures to his
first- and second-level supervisors between December 2017 and March 2018.
IAF, Tab 1 at 17-19. The record shows that the appellant’s second-level
supervisor was the proposing official in the appellant’s removal and that he
proposed the action less than a year later, on August 30, 2018. IAF, Tab 6
at 26-29. The Board has stated that a personnel action that occurs within 1 to
2 years of the protected disclosure satisfies the timing portion of the
knowledge/timing test. Salerno, 123 M.S.P.R. 230, ¶ 14; see Mastrullo v.
Department of Labor, 123 M.S.P.R. 110, ¶ 21 (2015). Accordingly, we find that
the appellant has met the knowledge/timing test and, therefore, has nonfrivolously
alleged that his four protected disclosures were a contributing factor to his
removal.
Regarding the OIG complaint, the record establishes that the complaint was
filed on March 2, 2018, but the appellant does not appear to have alleged below
that any agency official responsible for his removal was aware that he had filed
the complaint. IAF, Tab 1 at 5, 16, Tab 5 at 39-43. Thus, as noted above, the
17
administrative judge found “no nonfrivolous allegation any official involved in
his removal was knowledgeable of this filing,” and he concluded that the
appellant failed to meet the knowledge/timing test. ID at 10-11. Nonetheless, he
considered additional factors relevant to the contributing factor question as an
alternative to the knowledge/timing test, such as the strength or weakness of the
agency’s reasons for taking the personnel action, whether the whistleblowing or
protected activity was personally directed at the proposing or deciding official,
and whether any such individuals had a desire or motive to retaliate against the
appellant. ID at 5 (citing Rumsey v. Department of Justice, 120 M.S.P.R. 259,
¶ 26 (2013)). He acknowledged that, although the proposing official—the
appellant’s second-level supervisor—was mentioned in the OIG complaint, the
appellant had an opportunity to raise a claim of reprisal in response to the
proposed removal and did not do so. ID at 11. He further stated that the basis for
the agency’s removal action was “facially” strong and that there was no other
circumstantial evidence in the record nonfrivolously linking the appellant’s OIG
complaint with his removal for cause a year later. ID at 12. Accordingly, he
found that the appellant failed to nonfrivolously allege that his OIG complaint
was a contributing factor in the agency’s removal action. Id.On review, the appellant asserts, for the first time, that OIG contacted both
the proposing and deciding officials and that they were both aware of the
complaint. PFR File, Tab 1 at 4. Although the appellant did not allege below
that the proposing and deciding officials had knowledge of the OIG complaint,
and the Board will generally not consider an argument raised for the first time on
review absent a showing that it is based on new and material evidence that was
not previously available despite the party’s due diligence, Clay v. Department of
the Army, 123 M.S.P.R. 245, ¶ 6 (2016), we will consider the appellant’s new
argument on this jurisdictional issue because jurisdiction is always before the
Board and may be raised by any party or sua sponte by the Board at any time
during Board proceedings, see Lovoy v. Department of Health and Human
18
Services, 94 M.S.P.R. 571, ¶ 30 (2003). Here, even though the appellant now
claims that relevant agency officials had knowledge of the OIG complaint, he has
still not alleged when they gained that knowledge. PFR File, Tab 1 at 4. Because
they could have conceivably gained knowledge of the complaint after his removal
was proposed or effected, we, like the administrative judge, cannot find that the
appellant has met the knowledge/timing test.
As such, we turn to the administrative judge’s assessment of the alternative
methods to determine whether the appellant nonfrivolously alleged contributing
factor. As discussed above, the administrative judge considered the relevant
factors set forth in Board precedent, such as Rumsey. ID at 11-12. The appellant
has not specifically challenged this analysis, except to argue that the
administrative judge inappropriately considered the merits of the case when he
concluded that the agency’s removal action was facially strong. PFR File, Tab 1
at 3. We discern no error in the administrative judge’s basic assessment of the
underlying removal action at the jurisdictional stage because, when an appellant
has failed to meet the knowledge/timing test, the strength or weakness of that
action is a factor to consider when determining whether the appellant
nonfrivolously alleged that his OIG complaint was a contributing factor to his
removal. See Rumsey, 120 M.S.P.R. 259, ¶ 26. We agree with his assessment
that, at least facially, the removal action appears to be supported, and further add
that the appellant has not alleged any set of facts that, if true, support a
conclusion that either the proposing or deciding officials had a desire or motive to
retaliate against him. As such, we will not disturb the administrative judge’s
conclusion that the appellant failed to nonfrivolously allege that his OIG
complaint was a contributing factor to his removal.
19
In sum, we find that the appellant nonfrivolously alleged that he made four
protected disclosures that were a contributing factor to his removal. As such, we
find that the appellant has established jurisdiction over this appeal. 5
ORDER
For the reasons discussed above, we grant the appellant’s petition for
review, and we remand this case to the Washington Regional Office for further
adjudication in accordance with this Remand Order. In the remand initial
decision, the administrative judge may reincorporate prior findings as
appropriate, consistent with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
5
The appellant has submitted with his petition for review a declaration from a coworker
regarding his relationship with the appellant and his observations of the appellant’s
duties and the alleged facts surrounding his disclosures, as discussed above. PFR File,
Tab 1 at 7-9. Under 5 C.F.R. § 1201.115, the Board generally will not consider
evidence submitted for the first time with a petition for review absent a showing that it
was unavailable before the record closed before the administrative judge despite the
party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 213-14 (1980).
Here, the appellant claims that he did not submit the declaration below because he
believed the administrative judge was not yet considering the merits of the appeal.
PFR File, Tab 1 at 4. Implicit in this statement is the appellant’s suggestion that the
newly submitted declaration goes to the merits of his appeal. Additionally, he has not
claimed that the information contained in the declaration was unavailable before the
record closed. Based on these reasons, we decline to consider the declaration.