Scott Chaplin v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SCOTT CHAPLIN, DOCKET NUMBER
Appellant, PH-1221-20-0198-W-1
v.
DEPARTMENT OF VETERANS DATE: August 7, 2024
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Scott Chaplin , Hooksett, New Hampshire, pro se.
M. Creston Rice , Esquire, Bedford, Massachusetts, 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,
REVERSE the administrative judge’s finding that the appellant did not
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
nonfrivolously allege a protected disclosure regarding the Acting Physical
Security Officer (PSO) position, FIND that the appellant nonfrivolously alleged
that his disclosure regarding the Acting PSO position was a contributing factor in
personnel actions and thus established Board jurisdiction over that claim,
AFFIRM the remainder of the initial decision, and REMAND the case to the
Northeastern Regional Office for further adjudication in accordance with this
Remand Order.
BACKGROUND
The appellant is employed by the agency as a Police Lieutenant, GS-08, at
its Medical Center in Manchester, New Hampshire. Initial Appeal File (IAF),
Tab 1 at 1. The following facts recited here are as the appellant asserted them
below and are neither proven nor disproven by the record. Since September 2019,
the appellant had been performing the duties of the Acting Deputy Chief of
Police. Id. at 4. It is undisputed that the agency was seeking to permanently fill
the Deputy Chief position, and the appellant sought a formal promotion to that
position. Id.; IAF, Tab 8 at 4. However, according to the appellant, the Chief of
Police attempted to convince him to agree to a temporary promotion to the Acting
PSO position, rather than pursue the permanent Deputy Chief position. 2 IAF,
Tab 1 at 4. Based on the appellant’s recitation of a conversation between him and
the Chief of Police, the appellant informed the Chief of Police that he would not
be able to carry out the duties of his position while also taking on the duties of
the Acting PSO position. Id. The Chief of Police responded to the appellant,
claiming that, although the agency would temporarily promote him to the Acting
PSO position, another employee would perform the actual duties of the position.
Id. The appellant expressed his concern to the Chief of Police that it would be
unethical and illegal to temporarily promote him to a position but to have
2
The appellant’s claims below do not appear to contain an allegation that this attempt
to convince him to agree to a temporary promotion amounted to an order that he accept
the Acting PSO position. IAF, Tabs 1, 6.
3
someone else perform the actual duties of the position while the appellant was the
one getting paid for the position. Id. Ultimately, it appears that the appellant
never accepted the temporary promotion to the Acting PSO position. Id. at 4-9.
Regarding the selection for the Deputy Chief position, the appellant
seemingly grew concerned that the Chief of Police had preselected his personal
friend for the position before the formal hiring process had fully unfolded. Id.
at 4-6. Due to the appellant’s suspicions regarding the merits of the agency’s
selection process in this regard, he told the Chief of Police that, in order to
protect himself, he should remove himself from the selection process. Id. at 6.
According to the appellant, the Chief of Police did not do so. Id. It is undisputed
that, on or around January 10, 2020, the Chief of Police informed the appellant
that he was not selected for the Deputy Chief position. Id. at 6; IAF, Tab 8 at 5.
Shortly thereafter, the appellant filed a complaint with the Office of Special
Counsel (OSC), wherein he asserted that the Chief of Police engaged in several
improper selection practices in the hiring process for the Deputy Chief position,
and that he did not select the appellant for that position in reprisal for the
appellant’s expression of concerns to the Chief of Police regarding his alleged
unethical conduct related to the Acting PSO position and the Deputy Chief
selection process. IAF, Tab 6 at 16-44. On March 10, 2020, OSC issued the
appellant a letter informing him that it was terminating its inquiry into his
allegations and that he may seek corrective action from the Board. IAF, Tab 4
at 4.
Thereafter, the appellant filed the instant appeal with the Board, arguing
that the agency did not select him for the Deputy Chief position and interfered
with his ability to perform his duties in reprisal for his open communication,
including expressing to the Chief of Police his concerns regarding the Chief’s
actions surrounding his encouragement that the appellant take the Acting PSO
position and selection of a personal friend for the Deputy Chief position. IAF,
Tab 1 at 4-9. Recognizing that the appellant was filing an IRA appeal based on
4
whistleblower reprisal, the administrative judge issued an order informing the
appellant of what he must show and allege in order to establish jurisdiction over
his appeal. IAF, Tab 2 at 2-4. The appellant responded by submitting OSC’s
close-out letter regarding his OSC complaint. IAF, Tab 4.
In a subsequent order to show cause, the administrative judge informed the
appellant that, based on his pleadings thus far, he had yet to make a nonfrivolous
allegation of Board jurisdiction, and he again ordered the appellant to file a
pleading nonfrivolously alleging Board jurisdiction over his claims. IAF, Tab 5
at 2, 4. The appellant responded to the order, explaining why he believed the
Chief of Police’s actions constituted a potential violation of law, rule, or
regulation, gross mismanagement, and an abuse of authority. IAF, Tab 6 at 4. He
reiterated that he was not selected for the Deputy Chief position and that the
agency interfered with his ability to perform his duties in reprisal for his
disclosures to the Chief of Police, and he asserted that the actions referenced all
occurred between October 10, 2019, and January 17, 2020. Id. at 4, 11.
Additionally, he submitted his OSC complaint. Id. at 16-44. His claims do not
appear to contain any other allegations that, prior to January 17, 2020—the date
around which he filed his OSC complaint—he filed any sort of appeal, complaint,
or grievance, or participated in any other activity protected under 5 U.S.C.
§ 2302(b)(9).
The administrative judge issued an initial decision without holding a
hearing, 3 and dismissed the appellant’s appeal for lack of jurisdiction. IAF,
Tab 10, Initial Decision (ID). He found that, although the appellant exhausted his
administrative remedy with OSC, ID at 6, he failed to nonfrivolously allege that
the agency did not select him for the Deputy Chief position in reprisal for making
a protected disclosure, and also failed to identify any protected activity which
took place before the alleged acts of retaliation, ID at 7-10. These findings
appear to include indirect findings that the appellant failed to nonfrivolously
3
The appellant did not request a hearing. IAF, Tab 1 at 2.
5
allege that he made a protected disclosure or engaged in protected activity that
was a contributing factor to his nonselection. Id.The appellant has filed a petition for review, wherein he argues that the
administrative judge miscategorized the content and substance of his alleged
disclosures, and that the content and substance of the disclosures alleged a
violation of law, rule, or regulation, and an abuse of authority. Petition for
Review (PFR) File, Tab 1 at 4-7. He also appears to allege, for the first time, that
the Chief of Police’s insistence and encouragement that he take the Acting PSO
position amounted to an order to accept the position, that such an order violated a
law, rule, or regulation, and that he refused to obey that order. Id. at 5-7. He
claims that this conduct amounted to protected activity under 5 U.S.C. § 2302(b)
(9)(D). Id. at 5-7. The agency has filed a response in opposition to the
appellant’s petition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction over an IRA appeal under the Whistleblower
Protection Enhancement Act 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).
It is undisputed that the appellant exhausted his administrative remedy with OSC
regarding his protected disclosures under 5 U.S.C. § 2302(b)(8).
As an initial matter, the record demonstrates, and neither party disputes,
that the appellant exhausted with OSC his claim that the agency did not select
him for the Deputy Chief position and interfered with his ability to perform his
duties in reprisal for his alleged disclosures to the Chief of Police regarding what
6
the appellant believed was illegal or unethical behavior by the Chief in the hiring
process for the Deputy Chief. IAF, Tab 4 at 4, Tab 6 at 24-30. As such, we agree
with the administrative judge’s conclusion that the Board may consider these
claims. 4 ID at 6; see Mason v. Department of Homeland Security , 116 M.S.P.R.
135, ¶ 8 (2011) (stating that the Board may consider only matters that the
appellant first raised and exhausted before OSC). Therefore, the issue currently
before the Board is whether the appellant nonfrivolously alleged that his
disclosures were protected under 5 U.S.C. § 2302(b)(8), and that his protected
disclosures were a contributing factor to the agency’s decisions not to select the
appellant for the Deputy Chief position and to interfere with his ability to perform
his duties. 5 See Salerno, 123 M.S.P.R. 230, ¶ 5. As explained below, we find
that the appellant has nonfrivolously alleged that he made a protected disclosure
that was a contributing factor to the personnel actions at issue, and that he has,
therefore, established the Board’s jurisdiction over his claims.
The appellant nonfrivolously alleged that he made a protected disclosure.
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). Id., ¶ 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,
4
We address the appellant’s argument, raised for the first time on review, that he
engaged in protected activity under 5 U.S.C. § 2302(b)(9)(D) separately below.
5
A nonselection for appointment is a personnel action under the whistleblower
protection statutes. King v. Department of the Army, 116 M.S.P.R. 689, ¶ 10 (2011);
see 5 U.S.C. § 2302(a)(2)(A)(i). We also construe the appellant’s claim that the agency
interfered with his ability to perform his duties as a claim that the appellant suffered a
significant change in duties, responsibilities, or working conditions so as to constitute a
personnel action under 5 U.S.C. § 2302(a)(2)(A)(xii).
7
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 previously discussed, the appellant alleged below that he told the Chief
of Police that, by encouraging him to accept an appointment to a position for
which he would not be performing the duties but would still be paid, he acted
unethically, could be violating a law, rule, or regulation if the Chief’s preferred
outcome resulted, and abused his authority. IAF, Tab 1 at 4-5. In the initial
decision, the administrative judge reasoned that this disclosure “does not
sufficiently disclose ‘a violation of law, rule, or regulation’ to make it protected”
within the meaning of the whistleblower statutes because it was a “one time”
statement made when declining a job offer. ID at 8. As noted above, the
appellant also alleged below that he told the Chief of Police that he should recuse
himself from the selection process for the Deputy Chief position so that the
selection process appeared more impartial. IAF, Tab 1 at 6. He asserted that this
was a disclosure of gross mismanagement. IAF, Tab 6 at 4. In the initial
decision, the administrative judge concluded that the appellant’s concerns
constituted, at most, “nothing more than a disagreement over who should
participate in the selection process for the Deputy Chief position[,]” and that,
because his “disagreement over the composition of the hiring committee did not
involve a disclosure of a potential violation of a law, rule[,] or regulation it does
not meet the definition of a protected disclosure.” ID at 9 (citing Webb
v. Department of the Interior, 122 M.S.P.R. 248, ¶ 8 (2015)).
On review, the appellant argues that the administrative judge did not
properly construe the full contents of his alleged disclosures. PFR File, Tab 1
at 4-6. For example, he argues that the administrative judge failed to consider
that his alleged disclosure regarding the Acting PSO position included not only
the assertion that it would be unethical to accept the promotion to the Acting PSO
position, but also that such a scenario would require someone else to perform the
duties of the Acting PSO position while the appellant was paid for it. Id. at 5-6.
8
He also challenges the administrative judge’s conclusion that this alleged
disclosure was not protected, and he continues to assert that the disclosure alleged
at least one of the categories of wrongdoing set forth in section 2302(b)(8). Id.
at 4-6. As explained below, we find that the appellant nonfrivolously alleged that
this disclosure was protected under section 2302(b)(8).
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; however, our reviewing court 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.” Langer v. Department of the
Treasury, 265 F.3d 1259, 1266 (Fed. Cir. 2001). Although the appellant has not
referenced a specific law, rule, or regulation at issue here, it is nonetheless
axiomatic that a Federal employee may not be paid for the performance of duties
that he did not actually perform, and we find that a reasonable person in the
appellant’s position could conclude that such actions would evidence a violation
of a law, rule, or regulation. See Salerno, 123 M.S.P.R. 230, ¶ 6.
In this case, however, the appellant did not disclose that the agency
ultimately placed him in a position for which he would be paid without
performing the duties, thus leaving another agency employee to perform the
duties without being paid, because that did not actually occur here; rather, the
appellant appears to allege that the agency’s future placement of him in the
Acting PSO position would have violated a law, rule, or regulation. IAF, Tab 1
at 4. Our reviewing court has held that an employee’s reasonable belief that a
violation of law, rule, or regulation is imminent is sufficient to confer jurisdiction
on the Board. See Reid v. Merit Systems Protection Board, 508 F.3d 674, 677
(Fed. Cir. 2007); see also Weed v. Social Security Administration, 113 M.S.P.R.
221, ¶ 9 (2010) (citing Reid in support of the proposition that the whistleblower
protection statutes should be broadly construed). Although it is not yet clear
9
whether the appellant reasonably believed such actions were imminent, the Board
has stated that any doubt or ambiguity as to whether the appellant made a
nonfrivolous jurisdictional allegation should be resolved in favor of finding
jurisdiction. See Usharauli v. Department of Health & Human Services,
116 M.S.P.R. 383, ¶ 19 (2011). Accordingly, we find that the appellant
nonfrivolously alleged that he disclosed a violation of law, rule, or regulation in
this regard. See id.We similarly find that the appellant’s alleged disclosure regarding the
Acting PSO position meets the nonfrivolous allegation standard for an allegation
of an abuse of authority. 6 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, ¶ 19 n.3. Here, the appellant has alleged that he effectively disclosed that
the Chief of Police used his authority as a high-ranking agency official to attempt
to convince the appellant to accept the Acting PSO position so that he would not
pursue the Deputy Chief position, thus facilitating the Chief of Police’s selection
of a personal friend, rather than the appellant, for that position. Because the
Chief of Police’s alleged actions would result in a personal gain, namely, the
ability to select his personal friend rather than the appellant for the Deputy Chief
position, we find that the appellant nonfrivolously alleged that he disclosed an
abuse of authority. 7 Id.6
Upon remand, should the appellant fail to prove by preponderant evidence that he
disclosed what he reasonably believed was an imminent violation of law, rule, or
regulation, he may also, based on our finding here, aim to prove by preponderant
evidence that he disclosed what he reasonably believed was an abuse of authority.
7
Regarding the appellant’s alleged disclosure concerning the purported
inappropriateness of the Chief of Police’s participation in the selection process, the
appellant essentially challenges on review the administrative judge’s finding that this
disclosure evidenced a mere policy disagreement. PFR File, Tab 1 at 6-7. He argues
that the contents of his allegation amounted to an allegation of a preselection, and that a
preselection “is a prohibited practice,” and should, therefore, be covered under section
10
Based on the foregoing, we find that the appellant nonfrivolously alleged a
violation of a law, rule, or regulation, and an abuse of authority under section
2302(b)(8) when he disclosed to the Chief of Police that he was improperly
attempting to convince him to take the Acting PSO promotion. 8
The administrative judge correctly found that the appellant failed to
nonfrivolously allege that he engaged in protected activity under 5 U.S.C.
§ 2302(b)(9).
As discussed above, the appellant claimed below that all of the actions
alleged occurred between October 27, 2019, and January 17, 2020. IAF, Tab 6
at 4. In the initial decision, the administrative judge observed that the appellant
“never identified any complaints, appeals[,] or grievances” that he filed before
January 17, 2020. 9 ID at 10. Indeed, we have reviewed the record and, as briefly
2302(b)(8). Id. The appellant’s alleged disclosure, however, was not of preselection or
even of a suspicion of a preselection. IAF, Tab 1 at 6. Rather, the appellant has only
alleged that he “told [the Chief] a couple of times that[,] to protect ourselves[,] we
needed to have a panel/board for [the Deputy Chief position] and that [he] should
remove himself from the process.” Id. As stated above, the administrative judge
concluded that this allegation did not meet the definition of a protected disclosure, and
we agree. ID at 9. As the administrative judge correctly noted, “having the head of a
particular department or office serve as either the selecting official or a member of a
hiring committee for a position within that department or office is not unusual and
certainly does not violate any law, rule or regulation.” Id. The appellant’s alleged
disclosure did not extend beyond a suggestion that the Chief of Police remove himself
from the panel; he has not alleged that he told the Chief that any of his actions or
imminent actions violated a law, rule, or regulation, or amounted to any other sort of
wrongdoing as contemplated by section 2302(b)(8). IAF, Tab 1 at 6. Accordingly, the
administrative judge correctly found that the appellant failed to make a nonfrivolous
allegation of a protected disclosure in this regard.
8
The fact that the alleged disclosures of wrongdoing were made to the alleged
wrongdoer does not exclude them from coverage under section 2302(b)(8). See Day
v. Department of Homeland Security, 119 M.S.P.R. 589, ¶ 18 (2013).
9
The administrative judge’s reliance on the January 17, 2020 date appears to be most
relevant to the principle that an alleged protected disclosure or protected activity that
occurs after an alleged personnel action could not have been a contributing factor to
that action. See Mason, 116 M.S.P.R. 135, ¶ 27. Thus, in considering whether the
appellant nonfrivolously alleged that he engaged in protected activity, the
administrative judge appears to have considered only whether the appellant alleged that
he engaged in protected activity before the nonselection occurred. ID at 9-10.
11
noted above, have not located any claim that the appellant participated in these
activities prior to January 17, 2020. The administrative judge further stated that,
“before that date [the appellant] appears not to have cooperated in any
investigations or disclosed any information to the Office of the Inspector or the
OSC, and there is no indication he refused to follow an illegal order.” Id. As
such, he found that the “lack of information concerning the appellant’s purported
protected activities means [that] he has not made nonfrivolous allegations of fact
sufficient to establish jurisdiction over this claim.” Id.On review, the appellant only challenges the administrative judge’s
statement that “there is no mention of any illegal order given to [the appellant] by
management which he refused to obey.” PFR File, Tab 1 at 5; ID at 5. Thus, we
construe this challenge as an allegation, made for the first time on review, that he
engaged in protected activity under section 2302(b)(9)(D) when he refused to
obey an order that would require him to violate a law, rule, or regulation. See
5 U.S.C. § 2302(b)(9)(D). Although the appellant did not specifically allege
below that the he refused to obey an illegal order, 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 & Human Services, 94 M.S.P.R. 571, ¶ 30 (2003).
In consideration of this claim, we first note that it appears that the
appellant has exhausted it with OSC. IAF, Tab 6 at 26. Nonetheless, we have
been unable to locate any actual order identified by the appellant that he refused
to obey. PFR File, Tab 1 at 4-5; IAF, Tabs 1, 6. To the contrary, his allegations
regarding the Chief of Police’s efforts to convince him to take the promotion to
the Acting PSO position do not suggest that those efforts constituted an order.
12
For example, the appellant stated in his initial appeal that the Chief of Police
explained to him that he and other agency administrative officials “were trying to
throw [him] a bone to offer [him] the [Acting] PSO position since [he] never
received compensation for the Acting [Deputy Chief] position” he was currently
filling. IAF, Tab 1 at 4. The appellant has not alleged any set of facts that, if
true, demonstrate that the Chief of Police ordered him to accept the Acting PSO
position; rather, his allegations evidence a vague insinuation supported only by
his own beliefs that he was ordered to take the promotion to that position.
Accordingly, we find that, as a matter of law, the appellant has failed to
nonfrivolously allege that he refused to obey an order that would require him to
violate a law, rule, or regulation. As such, we find that he failed to
nonfrivolously allege that he engaged in protected activity under section 2302(b)
(9)(D). We further agree with the administrative judge that the appellant
otherwise failed to nonfrivolously allege that he engaged in any other protected
activity.
The appellant nonfrivolously alleged that his protected disclosure was a
contributing factor in the alleged personnel actions.
Because the appellant nonfrivolously alleged that his disclosure was
protected under 5 U.S.C. § 2302(b)(8), he must next nonfrivolously allege that it
was a contributing factor in the personnel actions 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
13
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.The appellant has alleged that the Chief of Police was the agency official
responsible for his nonselection and for interfering with his ability to perform his
duties. IAF, Tab 1 at 6-7, 9. Because the appellant alleged that he made his
disclosure directly to the Chief of Police, we find that he has nonfrivolously
alleged that the agency official responsible for the personnel actions—the Chief
of Police—had actual knowledge of the disclosure, thereby satisfying the
knowledge prong of the knowledge/timing test.
Regarding the timing prong, the appellant has alleged that his nonselection
occurred on or around January 10, 2020, and that the Chief of Police began to
interfere with his ability to perform his duties on or around February 18, 2020.
Id. at 6, 9. Although the appellant has not alleged the specific dates on which he
made his disclosure, he appears to assert that all of the relevant actions occurred
between October 27, 2019, and January 17, 2020. IAF, Tab 6 at 4. A reasonable
interpretation of the appellant’s recitation of the chronology of events allows us
to conclude that he is alleging that he made his disclosure before the agency took
the alleged personnel actions against him. Id. Thus, it appears that the appellant
is alleging that the agency did not select him for the Deputy Chief position and
interfered with his ability to perform his duties within, at most, 3 -4 months of his
disclosure. 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). As such, we find that the appellant has
met the timing prong of the knowledge/timing test. In conjunction with our
conclusion above regarding the knowledge prong, we, therefore, find that the
appellant nonfrivolously alleged that his protected disclosure was a contributing
factor in his nonselection and the agency’s interference with his ability to
14
perform his duties. See Salerno, 123 M.S.P.R. 230, ¶ 13. Accordingly, we find
that he has established Board jurisdiction over his claims.
ORDER
For the reasons discussed above, we remand this case to the Northeastern
Regional Office for further adjudication in accordance with this Remand Order. 10
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
10
Having established Board jurisdiction over his IRA appeal, the appellant must now
prove his claims by preponderant evidence. Salerno, 123 M.S.P.R. 230, ¶ 5. If the
appellant proves by preponderant evidence that his protected disclosure was a
contributing factor in a personnel action taken against him, the agency is given an
opportunity to prove, by clear and convincing evidence, that it would have taken the
same personnel action in the absence of the protected disclosure. 5 U.S.C. § 1221(e)
(1)-(2); Salerno, 123 M.S.P.R. 230, ¶ 5. Upon remand, the administrative judge should
provide the parties with an opportunity to address whether discovery is needed to
adjudicate this appeal on the merits. Additionally, we reiterate that the appellant did
not request a hearing in this matter. IAF, Tab 1 at 2.