Jonathan J Lind v. Department of the Interior ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JONATHAN J. LIND, DOCKET NUMBER
Appellant, DE-1221-19-0312-W-2
v.
DEPARTMENT OF THE INTERIOR, DATE: August 8, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Raven Lind , Pine, Colorado, for the appellant.
Chen Song , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Heny J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication
of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied the appellant corrective action in his individual right of action (IRA)
appeal because he failed to establish that his protected disclosures were a
contributing factor in a covered personnel action. Generally, we grant petitions
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to find that all of the appellant’s disclosures were protected and that
his detail to another position was a covered personnel action, to update the
contributing factor analysis accordingly, and to include an analysis as to whether
the agency established by clear and convincing evidence that it would have taken
the action absent whistleblowing, we AFFIRM the initial decision.
BACKGROUND
On December 15, 2013, the appellant began his employment as an
Information Technology (IT) Specialist with the agency. 2 Lind v. Department of
the Interior, MSPB Docket No. DE-1221-19-0312-W-1, Initial Appeal File (W-1
IAF), Tab 10 at 122. As part of his duties, the appellant was the WebTA system
administrator and was responsible for ensuring that the system was performing
successfully. 3 Hearing Recording (HR) (testimony of appellant). According to
the appellant, in April 2016, while troubleshooting some performance issues, he
discovered that the office was not in compliance with the minimum database
2
The appellant is currently on disability retirement and no longer works for the agency.
Hearing Recording (testimony of appellant).
3
WebTA is a web-based time and attendance system used by some Federal agencies.
3
requirements, which was causing significant performance issues with WebTA.
W-1 IAF, Tab 15 at 43; HR (testimony of appellant). The appellant alerted his
first-line supervisor, NM, that the office was not meeting the minimum database
requirements, but according to the appellant, NM did not address the issue. W-1
IAF, Tab 15 at 43-44; HR (testimony of appellant). The appellant further
explained that in June 2016 during a meeting with NM and the appellant’s
second-line supervisor, TL, NM told TL that the office was meeting the minimum
database requirements, which prompted the appellant to contradict NM and
inform TL that the office was not, in fact, meeting those requirements. W-1 IAF,
Tab 15 at 44-45; HR (testimony of appellant). According to the appellant, NM
then claimed that the hardware did not exist to meet the minimum database
requirements, and the appellant again contradicted him and informed TL that the
hardware did exist. W-1 IAF, Tab 15 at 44-45; HR (testimony of appellant). At
the end of this meeting, TL ordered NM to meet the minimum database
requirements. W-1 IAF, Tab 15 at 45; HR (testimony of appellant, testimony of
TL).
Based on NM’s behavior, the appellant believed that NM was attempting to
undermine the effectiveness of WebTA, a belief that was further supported when
the appellant allegedly overheard NM say that he was going to make the server so
expensive that “nobody will want to pay for it.” W-1 IAF, Tab 15 at 47; HR
(testimony of appellant). Therefore, the appellant thought NM was sabotaging
WebTA when he purchased an excessively large server that would waste hundreds
of thousands of dollars in additional licensing, annual maintenance, and other
expenses. W-1 IAF, Tab 15 at 48; HR (testimony of appellant).
In February 2017, the appellant met with TL and TL’s Deputy, CT, to voice
his concerns about NM sabotaging WebTA by purchasing an excessively large
server. W-1 IAF, Tab 1 at 16; HR (testimony of appellant). In response, TL
dismissed the appellant’s concerns, telling the appellant that sometimes he may
not agree with his boss’s decision. W-1 IAF, Tab 15 at 47; HR (testimony of
4
appellant). Months later, in October 2017, NM issued the appellant his
performance evaluation in which NM rated the appellant lower in one critical
element, thus lowering the appellant’s summary rating from exceptional to
superior. W-1 IAF, Tab 15 at 8, Tab 17 at 59.
Concerned about his performance evaluation, on December 1, 2017, the
appellant spoke to CT and explained that he believed that his evaluation was
lowered by NM in retaliation for his February 2017 disclosure. W-1 IAF, Tab 1
at 16; HR (testimony of appellant). During this conversation, the appellant also
disclosed that NM had sent him the interview questions ahead of his interview for
the IT Specialist position. W-1 IAF, Tab 1 at 16, Tab 15 at 64; HR (testimony of
appellant). TL was informed of the appellant’s allegations, and on February 2,
2018, TL officially notified the appellant that he would be detailed to the Time
and Attendance Branch, under a different supervisor; however, according to the
appellant, his duties largely remained the same. W-1 IAF, Tab 15 at 101; HR
(testimony of appellant). This detail coincided with an administrative
investigation of NM, which ultimately found that NM had committed a prohibited
personnel practice by sending the appellant the interview questions prior to his
interview. W-1 IAF, Tab 15 at 29-30. As a result, the agency removed NM from
his position effective July 24, 2018. W-1 IAF, Tab 13 at 57.
At the end of his detail, the appellant was placed under the supervision of a
new first-line supervisor, MR, and a new second-line supervisor, CK. 4 HR
(testimony of MR, testimony of CK). On August 1, 2018, the appellant spoke to
TL and informed him that he feared retaliation from his new supervisors, while
also disclosing that his previous concerns regarding the server had not yet been
addressed. W-1 IAF, Tab 1 at 17. Under the supervision of MR and CK, the
appellant asserts that he suffered continued retaliation, specifically when MR
4
Although the official notification states the detail would last 30 days, TL did not end
the appellant’s detail until July 30, 2017, after the completion of the investigation of
NM and NM’s subsequent removal. Lind v. Department of the Interior,
DE-1221-19-0312-W-2, Appeal File, Tab 7 at 127.
5
failed to select him as acting team lead, when MR and CK denied him a third day
of telework, and when MR moved him to a different cubicle. Id.; HR (testimony
of appellant).
The appellant filed a complaint with the Office of Special Counsel (OSC)
alleging whistleblower retaliation. W-1 IAF, Tab 1 at 7-22. OSC subsequently
closed the appellant’s complaint and issued him a letter advising him of his right
to appeal to the Board. Id. at 7-8. The appellant filed an IRA appeal with the
Board and requested a hearing. Id. at 2. After finding jurisdiction and holding a
hearing, the administrative judge issued an initial decision finding that the
appellant was not entitled to corrective action. Lind v. Department of the
Interior, DE-1221-19-0312-W-2, Appeal File (W-2 AF), Tab 32, Initial Decision
(ID).
Specifically, the administrative judge found that the appellant only proved
that the December 2017 disclosure was protected, i.e., the statements that
disclosed that NM had provided him with the interview questions in advance of
the interview. ID at 8. As for the February 2017 and August 2018 disclosures,
which disclosed issues with the WebTA server and a fear of retaliation by new
supervisors CK and MR, the administrative judge found that the appellant failed
to establish that he had a reasonable belief that these disclosures evidenced any of
the types of wrongdoing covered by 5 U.S.C. § 2302(b)(8). 5 ID at 4-8. Next, the
5
During the hearing, the appellant testified that he believed NM turned against him
because he contradicted NM in front of TL during the June 2016 meeting. HR
(testimony of appellant). To the extent that the appellant alleges that the statements
made during the June 2016 meeting were a protected disclosure, he did not raise this
disclosure in his OSC complaint, and thus, the Board has no authority to consider it.
Boechler v. Department of Interior, 109 M.S.P.R. 638, ¶ 6 (2008) (affirming that the
Board may only consider claims of whistleblowing that the appellant raised before
OSC), aff’d, 328 F. App’x 660 (Fed. Cir. 2009); W-1 IAF, Tab 1 at 9-22. Furthermore,
in a prehearing ruling finding Board jurisdiction over the appeal, the administrative
judge did not include the statements made during the June 2016 meeting as a protected
disclosure at issue in this appeal. W-1 IAF, Tab 26 at 6-8. The administrative judge
invited any objections or corrections to his jurisdictional ruling to be made within 7
days of the order. Id. at 8. The appellant did not make any objections to the
administrative judge’s ruling. Thus, we discern no basis to disturb the administrative
6
administrative judge found that the lowered 2017 performance evaluation and the
denial of a third day of telework were covered personnel actions. ID at 9-12.
However, he also found that the appellant’s detail, nonselection for acting team
lead, and a cubicle change were not covered personnel actions under 5 U.S.C.
§ 2302(a)(2)(A). 6 Id.Finally, the administrative judge found that the appellant failed to show
that the one disclosure he did find to be protected, the December 2017 disclosure
about the interview questions, was a contributing factor to either the lowered
performance appraisal or the denial of a third day of telework. Id. Accordingly,
because the appellant failed to establish that his protected disclosure was a
contributing factor in a covered personnel action, the administrative judge
determined that the appellant failed to establish that he was entitled to corrective
action. ID at 13.
The appellant timely filed a petition for review. Petition for Review (PFR)
File, Tab 1. In support of his petition, the appellant argues that the administrative
judge “failed to consider all evidence” and that there was “inconsistent/incorrect
documentation from agency and MSPB” and claims that, due to the pandemic, he
judge’s finding. See Brown v. Department of the Army, 96 M.S.P.R. 232, ¶ 6 (2004)
(rejecting an agency’s argument on review that the administrative judge
mischaracterized the agency’s charge because the agency failed to preserve an objection
when it did not object to the administrative judge’s prehearing order).
6
The appellant alleged two other personnel actions in his OSC complaint, the denial of
a transfer, and a reassignment to a new, more onerous project. W-1 IAF, Tab 1 at 17.
These matters were not listed in OSC’s summary of the personnel actions raised by the
appellant. Id. at 8. In a prehearing ruling finding Board jurisdiction over the appeal,
the administrative judge did not include these matters in the list of personnel actions at
issue. W-1 IAF, Tab 26 at 6-8. The administrative judge invited any objections or
corrections to his jurisdictional ruling to be made within 7 days of the order. Id. at 8.
The appellant did not make any objections to the administrative judge’s ruling. Thus,
we discern no basis to disturb the administrative judge’s finding. See Brown,
96 M.S.P.R. 232, ¶ 6 (rejecting an agency’s argument on review that the administrative
judge mischaracterized the agency’s charge because the agency failed to preserve an
objection when it did not object to the administrative judge’s prehearing order).
7
was unable to “contact/utilize defense witnesses” and was denied an in-person
hearing. Id. at 4. The agency did not respond to the appellant’s petition.
DISCUSSION OF ARGUMENTS ON REVIEW
We have considered the appellant’s arguments on review and find that they
do not show error in the initial decision or the administrative judge’s processing
of the appeal. While the appellant asserts that the administrative judge did not
consider all of the evidence and that there was “inconsistent/incorrect
documentation,” he provides no details to support his claim. Thus, we find no
basis to disturb the initial decision in this regard. See Weaver v. Department of
the Navy, 2 M.S.P.R. 129, 133 (1980), review denied, 669 F.2d 613 (9th Cir.
1982) (per curiam) (finding that, before the Board will undertake a complete
review of the record, the petitioning party must explain why the challenged
factual determination is incorrect and identify the specific evidence in the record
which demonstrates the error); Marques v. Department of Health & Human
Services, 22 M.S.P.R. 129, 132 (1984) (finding that an administrative judge’s
failure to mention all of the evidence of record does not mean that he did not
consider it in reaching his decision), aff’d, 776 F.2d 1062 (Fed. Cir. 1985)
(Table). Regarding the appellant’s claim that he was unable to contact witnesses
because of the pandemic, he again provides no specifics in support of his claim.
Finally, regarding his claim that he was denied an in-person hearing, the Board
has held that an administrative judge may hold a video hearing, regardless of
whether the appellant objects. Koehler v. Department of the Air Force,
99 M.S.P.R. 82, ¶¶ 10, 13 (2005). Thus, in sum, the appellant’s arguments on
review do not show error in the initial decision; however, based on our review of
the record, we discern a number of errors in the initial decision that are discussed
below.
Federal agencies are prohibited from taking, failing to take, or threatening
to take or fail to take any personnel action against an employee in a covered
8
position because of the disclosure of information that the employee reasonably
believes to be evidence of a violation of law, rule, or regulation, gross
management, a gross waste of funds, an abuse of authority, or a substantial and
specific danger to public health and safety. 5 U.S.C. § 2302(b)(8). The appellant
is required to establish a prima facie case of whistleblower retaliation by proving
by preponderant evidence that he made a protected disclosure that was a
contributing factor in a personnel action taken against him. 5 U.S.C. § 1221(e)
(1); Mastrullo v. Department of Labor, 123 M.S.P.R. 110, ¶ 12 (2015). To
establish that he made a protected disclosure, the appellant must demonstrate by
preponderant evidence that he disclosed information that he reasonably believed
evidenced a situation covered by 5 U.S.C. § 2302(b)(8)(A). Mithen v.
Department of Veterans Affairs, 119 M.S.P.R. 215, ¶ 13 (2013). If the appellant
makes out a prima facie case of whistleblower retaliation, then the agency is
given the 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); Mastrullo, 123 M.S.P.R. 110, ¶ 12.
The administrative judge erred in finding that the appellant did not have a
reasonable belief that he disclosed one of the types of wrongdoing set forth in
5 U.S.C. § 2302(b)(8) in February 2017 and August 2018.
In the initial decision, the administrative judge determined that the
appellant failed to prove that he made a protected disclosure in February 2017
when he disclosed his concerns about the server. ID at 5-7. The administrative
judge reasoned that the appellant did not hold a reasonable belief that his
February 2017 disclosure evidenced one of the types of misconduct described by
5 U.S.C. § 2302(b)(8) because the appellant’s allegations were “factually
inaccurate.” Id. Applying the same reasoning, the administrative judge found
that the appellant’s August 2018 disclosure was similarly not protected, as it was
a reiteration of the February 2017 disclosure. ID at 8.
9
The administrative judge erred in his interpretation of the reasonable belief
standard. Whether an employee has a reasonable belief is determined by an
objective test – whether a disinterested observer with knowledge of the essential
facts known to and readily ascertainable by the employee could reasonably
conclude that the matters disclosed show one of the categories of wrongdoing set
out in the statute. Mithen, 119 M.S.P.R. 215, ¶ 13. The appellant need not prove
that the matter disclosed actually established one of the situations detailed under
5 U.S.C. § 2302(b)(8)(A)(ii); rather, the appellant must show that the matter
disclosed was one which a reasonable person in his position would believe
evidenced any of the situations specified in 5 U.S.C. § 2302(b)(8)(A). Schnell v.
Department of the Army, 114 M.S.P.R. 83, ¶ 19 (2010).
We believe the record establishes that the appellant held a reasonable belief
that his February 2017 and August 2018 disclosures regarding the server
evidenced gross mismanagement and/or gross waste of funds. 7 First, NM was not
forthright with TL regarding whether the office was meeting the minimum
database requirements. W-1 IAF, Tab 15 at 44-45; HR (testimony of appellant,
testimony of TL). Additionally, the appellant overheard NM say that he was
going to make the server “so . . . expensive that nobody will want to pay for it.”
W-1 IAF, Tab 15 at 47; HR (testimony of appellant). This is corroborated by
another employee, who confirmed that NM told him “that if it was the last thing
[NM] did, he was going to get [W]ebTA removed from the product line offered
by [the office].” W-1 IAF, Tab 15 at 96. Based on NM’s behavior, the appellant
believed that NM was actively undermining WebTA by selecting a server that was
twice as large as necessary with the intention of costing the agency hundreds of
7
Gross mismanagement means a management action or inaction that creates a
substantial risk of significant adverse impact on the agency’s ability to accomplish its
mission. Embree v. Department of the Treasury, 70 M.S.P.R. 79, 85 (1996). Also, an
employee discloses a gross waste of funds when he alleges that a more than debatable
expenditure is significantly out of proportion to the benefit reasonably expected to
accrue to the government. Id.10
thousands of dollars in additional licensing, annual maintenance, and other costs.
HR (testimony of appellant).
In light of these circumstances, we believe a disinterested observer with
knowledge of the facts known to and readily ascertainable by the appellant could
reasonably conclude that his disclosures regarding the server evidenced a gross
waste of funds and/or gross mismanagement. Therefore, we find that the
appellant’s February 2017 disclosure is protected, and to the extent that the
August 2018 disclosure was an iteration of the same matter, it is similarly
protected. 8 See Schneider v. Department of Homeland Security, 98 M.S.P.R. 377,
¶ 15 (2005) (stating that an appellant’s protected disclosures remains protected at
each iteration).
The administrative judge erred in determining that the appellant’s detail was not a
covered personnel action.
The administrative judge found that the appellant’s detail was not a covered
personnel action “because it was not adverse to the appellant.” ID at 10.
However, 5 U.S.C. § 2302 does not require that a personnel action be “adverse”
to an appellant to be covered. 5 U.S.C. § 2302(a)(2)(A), 2302(b)(8). Indeed, a
detail is explicitly listed as a covered personnel action in the statute. 5 U.S.C.
§ 2302(a)(2)(A)(iv). Accordingly, whether the appellant considered the detail to
be adverse is not relevant to the determination as to whether it was a covered
8
The appellant also alleged that his statement that he feared retaliation by his new
supervisors, CK and MR, was protected. W-1 IAF, Tab 1 at 17; HR (testimony of
appellant). Disclosures must be specific and detailed, not vague allegations of
wrongdoing. Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 6 (2016).
Conclusory, vague, or unsupported allegations are insufficient to qualify as disclosures.
McDonnell v. Department of Agriculture, 108 M.S.P.R. 443, ¶ 7 (2008). We find that a
generalized “fear” of retaliation without any explanation as to the basis for such fear is
insufficiently specific or detailed to constitute a disclosure. Furthermore, we note that
there is no evidence that MR or CK had any awareness of the appellant’s disclosures as
of August 1, 2018, when he made that claim – thus, the appellant’s “fear” of retaliation
was wholly unsupported. Thus, we agree with the administrative judge’s decision that
the appellant’s disclosure regarding his fear of retaliation is not protected. ID at 8.
11
personnel action. Thus, the administrative judge was incorrect in finding that the
appellant’s 2018 detail was not a covered personnel action. ID at 10.
However, we agree with the administrative judge that the agency’s failure
to select the appellant for the acting team lead role and the cubicle change are not
covered personnel actions under 5 U.S.C. § 2302. ID at 10-13. Neither of these
actions are expressly named in 5 U.S.C. § 2302(a)(2)(A), and under the
circumstances present here, we do not find that these acts fall into the statute’s
catchall provision, as neither qualifies as a “significant change in duties,
responsibilities, or working conditions.” 5 U.S.C. § 2302(a)(2)(A)(xii). The
acting team lead position was nothing more than a temporary role involving
minor changes in responsibilities for a limited timeframe while MR was on
leave. 9 HR (testimony of MR). As for the cubicle change, the appellant was
moved to a cubicle with windows in the same area and was promptly returned to
his windowless cubicle on his request. HR (testimony of appellant, testimony of
MR). We do not believe this short-lived cubicle change constitutes a “significant
change” in the appellant’s working conditions pursuant to 5 U.S.C. § 2302(a)(2)
(A)(xii). Accordingly, we agree with the administrative judge that neither of
these personnel actions are covered under 5 U.S.C. § 2302. ID at 10-13.
The appellant met his burden of showing that a protected disclosure was a
contributing factor to a covered personnel action.
To prevail on the merits of an IRA appeal, an appellant must meet his
initial burden of establishing by preponderance of the evidence that his
whistleblowing activity was a contributing factor in the personnel actions in
dispute. Mithen, 119 M.S.P.R. 215, ¶ 11. One way for an appellant to meet the
contributing factor standard is by satisfying the knowledge/timing test, i.e., by
demonstrating that the official taking the personnel action knew of the disclosure
and the personnel action occurred within a period of time such that a reasonable
9
Nothing in the record suggests that the assignment to the acting team lead position
would have constituted a detail or a promotion.
12
person could conclude that the disclosure was a contributing factor in personnel
action. 10 Id.; 5 U.S.C. § 1221(e)(1). We limit our contributing factor review to
the three remaining personnel actions at issue, i.e., the lowered 2017 performance
appraisal, the February 2018 detail, and the denial of a third day of telework, and
the three protected disclosures.
The appellant’s protected disclosures were a contributing factor in
the February 2018 detail.
First, we find that the appellant established that his protected disclosures
were a contributing factor in the February 2018 detail. TL admitted to being
aware of the appellant’s December 2017 statements that disclosed that NM sent
the interview questions prior to his scheduled interview. HR (testimony of TL).
Two months after the December 2017 disclosure, TL detailed the appellant to a
different branch. W-1 IAF, Tab 15 at 101. Accordingly, using the
knowledge/timing test, the appellant established that his protected disclosure was
a contributing factor in the agency’s decision to detail him.
The appellant failed to prove through the knowledge/timing test that
his protected disclosures were a contributing factor in his 2017
lowered performance appraisal.
Next, looking at the appellant’s 2017 lowered performance evaluation, we
find that the appellant failed to establish by preponderant evidence that NM had
knowledge of the appellant’s February 2017 disclosure regarding the server. 11
The only evidence in the record as to whether NM had knowledge of the
10
In the initial decision, the administrative judge consistently cites to the legitimacy of
the agency’s reasoning for a personnel action as a basis for finding that the appellant
failed to meet the contributing factor standard. ID at 10-13. However, if the appellant
establishes the knowledge/timing test, he establishes that the protected disclosure was a
contributing factor in the personnel action, regardless of the reasonableness of the
agency’s actions. 5 U.S.C. § 1221(e)(1). The legitimacy of the agency’s action is,
however, part of the agency’s burden to prove by clear and convincing evidence that it
would have taken the personnel action absent the appellant’s protected disclosure.
Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999) (stating
that the strength of the agency’s evidence in support of its personnel action is a factor
to be considered as part of the agency’s burden of proving by clear and convincing
evidence that it would have taken the same action absent whistleblowing).
13
appellant’s protected disclosure is the appellant’s testimony, in which the
appellant claims that in May 2017, NM told him that he did not appreciate the
appellant “circumventing” him on WebTA. HR (testimony of appellant).
Notably, there is no mention of this “circumventing” statement in either the
appellant’s signed or unsigned statements submitted during the administrative
investigation of NM. W-1 IAF, Tab 15 at 34-54, 68-75. Nevertheless, the
appellant’s testimony about this statement is vague and it is unclear whether he
believes that NM was referring specifically to the February 2017 disclosure or
more generally to the appellant’s concerns regarding WebTA. HR (testimony of
appellant). NM was aware that the appellant had issues with WebTA, as NM was
present on at least one occasion when the appellant raised such concerns with TL.
Id. However, establishing that NM had some general knowledge that the
appellant had discussed concerns with TL will not satisfy the knowledge/timing
test; the appellant must show that NM had knowledge of the appellant’s specific
protected disclosures. See Mithen, 119 M.S.P.R. 215, ¶ 11 (stating that the
appellant must prove by preponderant evidence that he made a protected
disclosure and that such whistleblowing activity was a contributing factor in a
personnel action); W-1 IAF, Tab 1 at 16-17. Here, there is no evidence that the
appellant informed NM of his February 2017 disclosure, and there is no evidence
that TL informed NM of the appellant’s disclosure. 12 HR (testimony of appellant,
testimony of TL).
11
The other two protected disclosures made by the appellant occurred after the
performance evaluation was issued in October 2017, and thus, it would have been
temporally impossible for NM to have known of these disclosures. Sherman v.
Department of Homeland Security, 122 M.S.P.R. 644, ¶ 8 (2015) (stating that a
disclosure that occurs after the personnel action at issue was taken cannot be considered
a contributing factor in that personnel action).
12
CT did not testify during the hearing, and neither party requested CT as a witness.
W-2 AF, Tab 2 at 9-10. Thus, the record contains no testimony from CT as to whether
she informed NM of the disclosure. NM passed away prior to the hearing, and thus, we
do not have his testimony on the issue. W-1 IAF, Tab 12 at 81.
14
Ultimately, the appellant has the burden of proof to establish, by
preponderant evidence, that the whistleblowing activity was a contributing factor
in an agency personnel action. Mithen, 119 M.S.P.R. 215, ¶ 11. The only
evidence that indicates that NM may have had knowledge of the February 2017
disclosure is a singular ambiguous statement alleged for the first time by the
appellant at the hearing without any corroborating evidence in the record. Given
the circumstances, we find that this statement is too nebulous and ambiguous on
its own to confirm that NM had knowledge of the appellant’s February 2017
disclosure. Accordingly, we find that the appellant failed to establish
contributing factor through the knowledge/timing test as it relates to the 2017
performance evaluation.
The appellant failed to prove through the knowledge/timing test that
his protected disclosures were a contributing factor in the decision
to deny him a third day of telework.
Turning to the denial of the third day of telework, we find that the
appellant failed to establish through the knowledge/timing test that his protected
disclosures were a contributing factor in the denial. We note that in the initial
decision the administrative judge found that the appellant failed to establish that
MR or CK had knowledge of his disclosures, relying on the appellant’s testimony
that he did not have any evidence that MR or CK were aware of his disclosures.
ID at 12. However, the record contains a personal memorandum written by MR,
dated August 16, 2018, stating that the appellant disclosed “that it was him to get
[NM] fired . . . and that [the appellant] started the investigation about the extra
$850,000 dollar server purchased.” W-1 IAF, Tab 12 at 46. Thus, we find that
MR did have knowledge of the appellant’s disclosures as of August 16, 2018.
Nonetheless, we find that the appellant failed to establish contributing factor
through the knowledge/timing test, as MR denied the appellant’s request for an
additional day of telework on August 13, 2018, several days before the appellant
told MR about his protected disclosures. Cf. Sherman v. Department of
15
Homeland Security, 122 M.S.P.R. 644, ¶ 8 (2015) (stating that a disclosure that
occurs after the personnel action at issue was taken cannot be considered a
contributing factor in that personnel action); W-1 IAF, Tab 13 at 13-14.
The appellant failed to provide any other evidence to establish that his
whistleblowing activity was a contributing factor in the personnel actions at
issue.
The Board has held that, if an administrative judge determines that an
appellant has failed to satisfy the knowledge/timing test, he shall consider other
evidence, such as evidence pertaining to the strength or weakness of the agency’s
reasons for taking the personnel action, whether the whistleblowing was
personally directed at the official taking the action, or whether these 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). Considering these other factors, we do
not find that the appellant established that his protected disclosures were a
contributing factor in either the lowered 2017 performance rating or the denial of
the additional day of telework.
The appellant failed to present any evidence that his whistleblower
activity was a contributing factor in his lowered performance
evaluation.
The record does not establish that the appellant’s February 2017 disclosure
regarding the WebTA computer server was a contributing factor in NM’s decision
to lower the appellant’s rating from exceptional to superior. Looking at the
strength of the agency’s reasons for the superior rating, the record is sparse, as
NM passed away prior to the hearing, and thus, there is no testimony from him
regarding the issue. W-1 IAF, Tab 12 at 81. Therefore, the only information we
have regarding the reasons that NM decided to rate the appellant as superior is the
appraisal itself, which details the basis for the appellant’s summary rating.
W-1 IAF, Tab 15 at 8-23. The appellant has presented little evidence that
undermines this reasoning, alleging only that his contributions warranted an
exceptional rating and that NM “copied and pasted” information from the
16
appellant’s self-evaluation. Id. at 52, 73; HR (testimony of appellant).
Ultimately, it is the burden of the appellant to establish that his protected
disclosure was a contributing factor to the personnel action, and we do not find
that the appellant has presented any evidence that would lead us to second-guess
NM’s decision to rate the appellant as superior. Mithen, 119 M.S.P.R. 215, ¶ 11.
Next, while we acknowledge that the appellant’s February 2017 disclosure
regarding the WebTA computer server directly involved NM, we also believe that
in order for NM to be motivated to retaliate, he must have knowledge of the
protected disclosure. In other words, in order for an official to have a motive or
desire to retaliate against an employee because he made a protected disclosure,
we believe it necessary first for the official to have knowledge of that employee’s
protected disclosure. See Dorney, 117 M.S.P.R. 480, ¶ 14 (stating that a
disclosure is a contributing factor if it affects an agency’s decision to threaten,
propose, take, or fail to take a personnel action). We do not find that NM had
knowledge of the appellant’s February 2017 disclosure; thus, we find it unlikely
that NM had a motive to retaliate against the appellant based on a protected
disclosure of which he was unaware. See Sherman, 122 M.S.P.R. 644, ¶ 9
(explaining that a disclosure could only have been a contributing factor in a
performance evaluation only if the official learned of it before making his
decision).
The appellant failed to present evidence establishing that his
whistleblowing activity was a contributing factor in the denial of a
third day of telework.
We also find that the appellant did not establish that his protected
disclosures were a contributing factor in the decision to deny him a third day of
telework. Looking at the strength of the agency’s explanation, we find that the
agency provided a reasonable and sound basis for the denial. Both MR and CK
testified that they denied the appellant’s request for a third day of telework
because they were trying to foster team interaction and encourage cross-training.
17
(testimony of MR, testimony of CK). Furthermore, MR and CK confirmed that
they, generally, did not approve more than two days of telework – instead, as
explained by MR, if a third day of telework was needed, he preferred to approve
that on a situational basis. HR (testimony of MR, testimony of CK). Based on
the agency’s credible explanation, coupled with the fact that the appellant has not
introduced any evidence to undermine this explanation, we discern no support for
a finding of contributing factor.
Furthermore, we find the record devoid of any evidence that MR or CK was
the target of the appellant’s whistleblowing activity or that they displayed any
motive or desire to retaliate against the appellant for the same. MR and CK were
not involved, directly or indirectly, in any of the appellant’s protected
disclosures, which focused on NM’s actions. 13 W-1 IAF, Tab 1 at 16-17;
HR (testimony of appellant). Furthermore, MR only learned of the appellant’s
protected disclosures after he denied the appellant’s request for a third day of
telework. W-1 IAF, Tab 12 at 46, Tab 13 at 13-14. Thus, we do not find it more
likely than not that MR or CK had a motive to retaliate against the appellant for
his protected disclosures because they lacked knowledge of those disclosures.
Accordingly, we find that the appellant failed to provide evidence that his
protected disclosures were a contributing factor in the decision to deny him a
third day of telework.
The agency established by clear and convincing evidence that it would have
detailed the appellant absent his protected disclosures
We next turn to the question of whether the agency proved by clear and
convincing evidence that it would have detailed the appellant absent his protected
activity. 5 U.S.C. § 1221(e)(1). In determining whether an agency has met its
burden, the Board will consider all relevant factors, including the following:
(1) the strength of agency’s evidence in support of its action; (2) the existence
13
While the appellant alleged initially that his disclosure that he feared retaliation from
CK and MR was protected, as found previously in this decision, such a disclosure is not
protected. W-1 IAF, Tab 1 at 17.
18
and strength of any motive to retaliate on the part of the agency officials who
were involved in the decision; and (3) any evidence that the agency takes similar
actions against employees who do not engage in such protected activity, but who
are otherwise similarly situated. Alarid v. Department of the Army, 122 M.S.P.R.
600, ¶ 14 (2015); see Carr v. Social Security Administration, 185 F.3d 1318, 1323
(Fed. Cir. 1999). The Board must consider all pertinent evidence in the record
and must not exclude or ignore countervailing evidence by looking only at
evidence that supports the agency’s position. Alarid, 122 M.S.P.R. 600, ¶ 14; see
Whitmore v. Department of Labor, 680 F.3d 1353, 1367-70 (Fed. Cir. 2012).
Looking at the first two Carr factors, we find that the agency has presented
a strong basis for its decision to detail the appellant, and there is absolutely no
evidence of a motive to retaliate against the appellant. TL stated that he detailed
the appellant in order to protect him, as NM, his first-line supervisor, was under
investigation due to serious allegations made by the appellant. HR (testimony of
TL). In detailing the appellant, TL intentionally removed him from NM’s chain
of command, which limited the amount of influence NM would have over
decisions concerning the appellant at work. Id. Additionally, the appellant
testified that there was no change in his duties while he was detailed, and he still
sat in the same area he had prior to the detail; thus, this detail did not
substantially change the appellant’s daily work life absent adding an extra layer
of protection for him against NM’s influence. HR (testimony of appellant).
Therefore, we find the basis for the detail to be extremely sound and further find
that it demonstrates that TL’s motivation was not to retaliate against the appellant
but to protect the appellant from retaliation. Notably, in his testimony, the
appellant admitted that he had “no problem” with the detail but felt that the detail
did not go far enough to remove him from NM’s influence. HR (testimony of
appellant). Thus, while the appellant may argue that the agency should have done
19
more to protect him, the appellant does not argue that the detail itself was
motivated by retaliation. 14 Id.Regarding the third Carr factor, the agency does not address whether it has
detailed other employees who did not make a protected disclosure under 5 U.S.C.
§ 2302(b)(8) when their supervisor was under investigation. While the agency
does have an affirmative burden to produce evidence concerning each and every
Carr factor, our reviewing court has held that “the absence of any evidence
relating to Carr factor three can effectively remove that factor from the analysis”
but that the failure to produce such evidence it if exists “may be at the agency’s
peril,” and “may well cause the agency to fail to prove its case overall.”
Whitmore, 680 F.3d at 1374. Moreover, because it is the agency’s burden of
proof, when the agency fails to introduce relevant comparator evidence, the third
Carr factor cannot weigh in favor of the agency. Smith v. General Services
Administration, 930 F.3d 1359, 1367 (Fed. Cir. 2019); Siler v. Environmental
Protection Agency, 908 F.3d 1291, 1299 (Fed. Cir. 2018). Accordingly, we find
that because the agency failed to introduce comparator evidence, the third Carr
factor cannot weigh in the agency’s favor. Nevertheless, we find that evidence
presented by the agency for the first and second Carr factors is more than
sufficient to establish the agency’s clear and convincing burden.
Because the agency proved by clear and convincing evidence it would have
taken its action absent whistleblowing, we agree with the administrative judge’s
conclusion that the appellant is not entitled to corrective action. ID at 13.
14
To the extent that the appellant alleges that the agency’s failure to further remove the
appellant from NM was a personnel action, there is no evidence that this allegation was
raised before OSC, and thus, the Board may not consider it here for the first time.
Boechler, 109 M.S.P.R. 638, ¶ 6 (affirming that the Board may only consider charges of
whistleblowing that the appellant raised before OSC); W-1 IAF, Tab 1 at 7, 9-22.
20
NOTICE OF APPEAL RIGHTS 15
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
15
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
21
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
22
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
23
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 16 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
16
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
24
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.