Jaime Figueroa v. Department of Transportation ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAIME FIGUEROA, DOCKET NUMBERS
Appellant, DC-1221-16-0136-W-3
DC-1221-15-0982-B-2
v.
DEPARTMENT OF
TRANSPORTATION, DATE: June 12, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Stephanie Rapp-Tully , Washington, D.C., for the appellant.
Glenn H. Brown , Anchorage, Alaska, for the agency.
Rebecca G. Snowdall , 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
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in these individual right of action appeals.
For the reasons discussed below, we GRANT the petition for review, VACATE
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the initial decision, and REMAND the case to the Washington Regional Office
for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 This appeal has an extensive procedural history that is not material to the
issues now before the Board and which we need not repeat here.
The appellant filed two appeals in which he alleged that the Federal Aviation
Administration (FAA or agency) took various personnel actions against him in
retaliation for his protected disclosures. MSPB Docket No. DC-1221-15-0982-
W-1, Initial Appeal File, Tab 1; MSPB Docket No. DC-1221-16-0136-W-1,
Initial Appeal File (0136 IAF), Tab 1. The administrative judge thereafter joined
the two appeals for adjudication. MSPB Docket No. DC -1221-16-0136-W-2,
Appeal File (0136-W-2 AF or AF) 2 , Tabs 1, 22; MSPB Docket No. DC-1221-15-
0982-B-1, Appeal File, Tab 4.
¶3 After a 6-day hearing, MSPB Docket No. DC-1221-16-0136-W -3, Appeal
File (0136-W-3 AF), Tabs 17-22, the administrative judge issued an initial
decision in which he found that the appellant exhausted his administrative
remedies before the Office of Special Counsel (OSC), but failed to show by
preponderant evidence that he made a protected disclosure because he failed to
show that a reasonable person in his position would have believed that the alleged
financial improprieties he disclosed evidenced a violation of law, rule, or
regulation, gross mismanagement, or a gross waste of funds, Figueroa v.
Department of Transportation, MSPB Docket Nos. DC-1221-16-0136-W-3,
DC-1221-15-0982-B-2, Initial Decision (ID) at 49-52 (Aug. 16, 2018); 0136 -W-3
AF, Tab 24. The administrative judge also found that the appellant failed to show
that a second disclosure made to the FAA Administrator was a contributing factor
2
From this point, even before he formally joined the appeals some time later, the
administrative judge treated the appeals as joined. All pertinent pleadings and orders
are contained in 0136-W-2 AF unless otherwise indicated. For simplicity’s sake, all
references to “AF” should be understood to refer to the file in MSPB Docket
No. DC-1221-16-0136-W-2.
3
in a personnel action because he did not establish that any of the managers
involved in the personnel actions at issue were aware of the disclosure. ID
at 53-58.
¶4 The appellant petitions for review of the initial decision. Petition for
Review File, MSPB Docket No. DC-1221-16-0136-W-3 (PFR File), Tab 1.
The agency responds in opposition to the petition for review and the appellant
replies to the agency’s response. PFR File, Tabs 3-4.
ANALYSIS
¶5 The following background information is not disputed. NextGen is an
office within the FAA charged with modernizing the air traffic management
system via technological advancement and other available means. NextGen is run
by an Assistant Administrator who reports to the FAA Administrator. As relevant
here, it is divided by function into six divisions, A though F, each headed by a
director.
¶6 NextGen receives appropriated funds which are allocated to performing
offices via a device known as a Project Level Agreement (PLA). PLAs are
funding documents that contain funding levels for particular projects with
schedules, deliverables, and statements of the expected benefits.
Because NextGen is intended to search for the optimal future air traffic
management system, it is normal that not every funded research activity will
achieve the projected deliverable and not every achieved deliverable will result in
the expected benefits.
The appellant did not show by preponderant evidence that his second protected
disclosure was a contributing factor in a personnel action.
¶7 The appellant sent an email to the FAA Administrator at his public email
address on January 9, 2015. 0136-W-3 AF, Tab 23, Exhibit QQQQ. In the email,
he made allegations of financial and ethical misconduct on the part of his
superiors and he asserted that they retaliated against him for making internal
4
reports about these matters by reassigning him to a position with lesser status and
responsibility. Id.¶8 It is not disputed that the email was read by one of the Administrator’s two
assistants. The administrative judge found, however, that there was no evidence
that any of the managers responsible for the personnel actions taken against the
appellant had any knowledge of the email. ID at 58. On review, the appellant
contends that it is not plausible that no one in the Administrator’s office took note
of the appellant’s email. PFR File, Tab 1 at 15-16.
¶9 According to the initial decision, and not disputed by the appellant on
review, the Administrator had a public email address that received “many, many
emails from the public, from media, from all sources.” ID at 54. The
Administrator had two assistants who screened the emails in his public account
and either archived messages, forwarded them to the Administrator, or forwarded
them to other agency employees for action as appropriate. The Administrator
himself had access to the public account, but he never looked at it personally and
relied entirely on his assistants to screen messages from the account. He had a
second, private email address for senior agency managers to use.
¶10 The administrative judge found that the agency’s records showed that one of
the two assistants opened and read the appellant’s email. Neither of them
remembered doing so and neither of them took any action on it. The
administrative judge found their testimony credible. ID at 58. The credibility
determinations of an administrative judge are virtually unreviewable, and the
appellant has not offered a sufficient reason here to set them aside. Haebe v.
Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002); Bieber v.
Department of the Army, 287 F.3d 1358, 1364 (Fed. Cir. 2002). Therefore, we
find no basis to disturb the administrative judge’s finding that the appellant failed
to prove by preponderant evidence that his disclosure to the FAA Administrator
was a contributing factor in a personnel action taken against him.
5
The appellant showed that he reasonably believed that his first disclosure
was protected.
¶11 According to his undisputed testimony, Mr. B arrived at the FAA in
September or October 2013 as Assistant Administrator in charge of the NextGen
program. His arrival was immediately followed by a lengthy furlough, during
which he read a number of Inspector General (IG) reports concerning the lack of
transparency in how NextGen pre-implementation funds 3 were being used.
ID at 38-39. He met with the new FAA Administrator and the new Deputy
Administrator to discuss the agency’s priorities and they wanted him to focus on
improvement in the management and documentation of pre-implementation
funds. Id.¶12 When the furlough was over, Mr. B asked Mr. J to put together a study of
the issues in pre-implementation funding. ID at 26, 39. Mr. J testified that there
was an existing audit done recently by Mr. E comparing expenditures to
deliverables and which had found $50 million in missing deliverables. ID at 27.
“Missing” did not necessarily mean the funds had been misappropriated, but
perhaps that there was a lack of proper documentation. ID at 27. Mr. B and Mr. J
both testified that Mr. B gave no specific guidance about the method or means by
which Mr. J was to complete the assignment. ID at 27, 40. Mr. J selected his
own team, which included, as relevant here, the appellant and Mr. W. ID at 27.
¶13 At the end of May 2014, Mr. J presented Mr. B with a 90% draft of a
document titled “Pre-Implementation Funding Internal Review” (IRR). ID at 28;
AF, Tabs 133-34. Mr. B had the draft distributed internally to senior
management, and his staff collected comments into a spreadsheet, which was
presented to Mr. J and the appellant the day before a meeting designed to discuss
the IRR. ID at 14, 41-42; AF, Tab 100.
¶14 According to his OSC complaint, the appellant, as a co-author of the IRR,
disclosed that there were nearly $50 million in funded program deliverables that
3
This relates to how money is spent before acquisition contracts are executed.
Pre-implementation funding is the largest portion of NextGen’s budget.
6
could not be found. 0136 IAF, Tab 1 at 12; AF, Tabs 133-34. After a thorough
and detailed summary of the hearing testimony that neither party disputes,
the administrative judge concluded that the appellant failed to show by
preponderant evidence that he reasonably believed that his disclosure evidenced a
violation of law, rule, or regulation, a gross waste of funds, or gross
mismanagement. In making this finding, the administrative judge relied on two
main considerations. First, he noted that the IRR received a great deal of
criticism when it was circulated among the NextGen senior management team.
ID at 50-51. Second, he characterized the appellant’s disclosure as a
disagreement about policy matters and, in doing so, he credited the testimony of
Mr. F that the appellant’s disclosure “was a contrived attack on the current
NextGen leadership implying that the appellant . . . had opinions about how to
manage the NextGen activities which were not accepted by current leadership or
which had fallen out of favor.” ID at 51-52.
¶15 A protected disclosure includes any disclosure of information which the
employee reasonably believes evidences, inter alia, a violation of law, rule, or
regulation, gross mismanagement, or a gross waste of funds. 5 U.S.C. § 2302(b)
(8). The test of a reasonable belief is whether a disinterested observer with
knowledge of the essential facts known to and readily ascertainable by the
employee could reasonably conclude that the actions evidenced, as relevant here,
a violation of law, rule, or regulation, gross mismanagement, or a gross waste of
funds. Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999); Ayers v.
Department of the Army, 123 M.S.P.R. 11, ¶ 13 (2015).
¶16 The initial decision stated, “neither the Board nor Congress requires more
than the belief be reasonable.” ID at 48. It then said, however, that “[t]he
appellant’s allegation must be reasonable and not ‘debatable among reasonable
people.’” Id. In Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶ 9
(2015), which the administrative judge cited in support of the “not debatable
among reasonable people” test, the Board actually noted that Congress had
7
specifically disapproved of the test because it imposed additional burdens of
proof on the employee that were not present in the statute. The Board clarified
that the employee need only show that he had a reasonable belief that his
disclosure evidenced the kind of misconduct identified in 5 U.S.C. § 2302(b)(8),
rather than a policy disagreement. Webb, 122 M.S.P.R. 248, ¶ 9. In light of the
foregoing, the administrative judge erred by finding that the appellant failed to
show that his belief was reasonable because he did not disclose impropriety that
was not debatable among reasonable people.
¶17 The initial decision also placed too much weight on the fact that other
managers disagreed with the appellant’s conclusions without considering the
nature of those disagreements and the extent to which they related (or did not
relate) to his key disclosure. The Board has held that it is error to conclude that a
belief is not reasonable simply because management officials do not agree with it.
Aquino v. Department of Homeland Security, 121 M.S.P.R. 35, ¶ 16 (2014);
Miller v. Department of Homeland Security, 111 M.S.P.R. 312, ¶ 17 (2009). As a
factual matter, however, the degree to which other managers actually disputed the
appellant’s findings is subject to debate. For example, comment 1 calls for a
discussion of past efforts to solve “the PLA problem” and why they did not work.
AF, Tab 100 at 4. Comment 6 calls for creating a new process for funding
internal activities now handled through the PLA process that do not fit the PLA
format or purpose. Id. at 5. Comment 10 criticizes the authors for re-assessing
financial controls for a time period that had already been audited even though that
was the assignment given to them by Mr. B. Id. at 6. Comment 11 suggests that
the authors are biased and that someone else should be assigned to the project.
Id. Comments 17-18 call for a historical discussion. Id. at 8-9. Comment 25
questions the purpose of the assignment. Id. at 10. Comment 27 questions the
competence of the authors. Id. at 11-12. Comment 30 complains about not
having been consulted earlier when the authors had not been instructed to include
stakeholders. Id. at 12-13. Comments 35 and 37-38 take issue with a statement
8
that recommendations were not implemented but then agree that recommendations
were not implemented. Id. at 13-14.
¶18 These comments, and many others, may reflect a great deal of disagreement
about the contents of the IRR as well as a misunderstanding on the part of the
commenters of the assignment that Mr. B gave the IRR’s authors, but they do not
relate to the appellant’s core disclosure. As to that, comments 39-45, pertaining
to the appellant’s particular disclosure of “178 missing deliverables valued at
$49.2 million,” did not dispute the appellant’s figures but instead, requested that
the report define the term “missing deliverable” and clarify that the figures
include lawful expenditures that were improperly or incompletely documented.
AF, Tab 100 at 14-16. Comment 116 noted that efforts were underway to recover
missing documentation, that some improperly logged files had been located, and
further efforts to correct documentation problems were ongoing. Both of these
comments are an acknowledgment that the underlying problem disclosed by the
appellant, that there were missing deliverables that had not been accounted for,
in fact existed. Id. at 31.
¶19 The initial decision also failed to take into account evidence that
corroborated the appellant’s disclosure, such as the substantially similar report
prepared by Mr. E and the existing IG reports that Mr. B reviewed during the
furlough, which had all reached similar broad conclusions about mismanagement
of NextGen pre-implementation funds. In addition, the administrative judge
rejected the appellant’s proposed hearing exhibit PPPP, a document entitled
“FAA’s Management and Oversight of Development Funding Exit Conference
Document March 9, 2017.” AF, Tab 127. The administrative judge found that
the document was not relevant because the truth of the appellant’s disclosure was
not at issue in this appeal. MSPB Docket No. DC-1221-16-0136-W-3,
Hearing Compact Disc, June 4, 2018 (14:00).
¶20 The administrative judge is correct that the appellant need not prove that his
disclosure actually evidenced a violation of law, rule, or regulation, gross
9
mismanagement, or a gross waste of funds. Scoggins v. Department of the Army,
123 M.S.P.R. 592, ¶ 11 (2016). However, the U.S. Court of Appeals for the
Federal Circuit and our own decisions have held that the fact that others share the
appellant’s belief is a factor that weighs in favor of finding his belief reasonable.
Greenspan v. Department of Veterans Affairs, 464 F.3d 1297, 1305 (Fed. Cir.
2006); Ayers, 123 M.S.P.R. 11, ¶ 22. The Exit Conference Document was
prepared by the agency’s IG and is a summary of an analysis of NextGen
developmental funding during fiscal years 2009-2015 by auditors who “conducted
our work in accordance with generally accepted Government auditing standards.”
AF, Tab 127 at 4. In addition to citing a lack of established procedures for
tracking expenditures, the IG stated:
FAA identified 640 deliverables valued at $109 million missing from
the Office of NextGen. Although FAA took action to recover
missing NextGen deliverables from program offices, 118 remained
missing or late from August 2010 to 2016.
AF, Tab 127 at 5. The excluded exhibit provides significant support for the
appellant’s claim that his belief was reasonable and we find that the
administrative judge abused his discretion by excluding it.
¶21 The initial decision’s second basis for finding that the appellant failed to
show that he had a reasonable belief that his disclosure was protected was that the
disclosure was about a policy disagreement and was motivated by a desire to
discredit senior management. The appellant’s disclosure that there were
178 missing deliverables valued at $49.2 million is not reasonably characterized
as a disagreement about policy. The initial decision noted testimony from Mr. W
that a significant proportion of the missing funds could be accounted for by
projects being funded directly by a budget committee outside the PLA process.
ID at 45. The IG expressed disapproval of the extra-PLA funding process
because it allowed for funding projects before there was an approved budget or
scope of work. AF, Tab 127 at 5. The expert opinion of the IG’s trained auditors
that NextGen’s extra-PLA funding process was improper undercuts the
10
administrative judge’s conclusion that the decision to fund projects in this fashion
was a debatable question of policy. Even assuming arguendo that a portion of the
missing funds could be attributable to financial practices that were debatable
matters of policy, the majority of the missing funds covered by the appellant’s
disclosure were not attributable to these practices. We find that the
administrative judge’s conclusion that the appellant’s disclosure concerned
debatable matters of policy is not supported by the weight of the record evidence.
¶22 The administrative judge also credited Mr. F’s testimony that the IRR was a
“contrived attack” on NextGen management and, by implication, not a genuine
report of misconduct. ID at 52. The Board has repeatedly held that when a
putative whistleblower has met the reasonable belief test, the motivation for his
disclosures is irrelevant. Sood v. Department of Veterans Affairs, 88 M.S.P.R.
214, ¶ 14 n.3 (2001); Carter v. Department of the Army, 62 M.S.P.R. 393, 402
(1994), aff’d, 45 F.3d 444 (Fed. Cir. 1995) (Table). The fact that the appellant
may have been perceived to some extent as a troublemaker is not material to the
question of whether a disinterested observer with the facts known to and
reasonably ascertainable by him could conclude that the agency’s financial
activities violated a law, rule, or regulation, or constituted gross mismanagement
or a gross waste of funds. Johnson v. Department of Defense, 87 M.S.P.R. 454,
¶ 10 (2000). Because the appellant’s alleged motivation is not a consideration
that is pertinent to the question of whether the appellant reasonably believed his
disclosure was protected, the fact that the administrative judge found that Mr. F’s
assertion about the appellant’s alleged motivation was credible is not a binding
and material credibility determination.
¶23 For all the above reasons, we find that the appellant proved by preponderant
evidence that he had a reasonable belief that he made a protected disclosure of
gross mismanagement. 4 We further find that, within approximately a year after
4
Johnson v. Department of Justice, 104 M.S.P.R. 624, ¶ 16 (2007) (defining “gross
mismanagement” as a management action or inaction that creates a substantial risk of
significant adverse impact on the agency’s ability to accomplish its mission, that is
11
his disclosure in May 2014, Mr. B reassigned the appellant in January 2015 and
Ms. W failed to select him for his former position when the agency readvertised it
in June 2015. Because these actions were taken by management officials with
direct knowledge of the appellant’s disclosures and took place with a period of
time such that a reasonable person could conclude that the disclosure was a
contributing factor in the personnel action, the appellant has shown contributing
factor. Mastrullo v. Department of Labor, 123 M.S.P.R. 110, ¶¶ 18, 21 (2015)
(stating than an appellant may prove that a disclosure was a contributing factor in
a personnel action under the knowledge/timing test by demonstrating that the
official taking the personnel action knew of the disclosure, and that the personnel
action occurred within 1 to 2 years of the disclosure). Accordingly, we find that
the appellant has established a prima facie case of reprisal for whistleblowing
with respect to these two personnel actions.
¶24 The appellant further contended below that the agency subjected him to an
additional personnel action when he was subjected to a hostile working
environment. On remand, the administrative judge shall determine whether the
appellant has shown that he was subjected to treatment that individually or
collectively, had practical and significant effects on the overall nature and quality
of his working conditions, duties, or responsibilities so as to constitute a
significant change in his duties, responsibilities, or working conditions under
5 U.S.C. § 2302(a)(2)(A)(xii). See Skarada v. Department of Veterans Affairs,
2022 MSPB 17, ¶ 16. If the administrative judge finds that the appellant was
affected by a personnel action under 5 U.S.C. § 2302(a)(2)(A)(xii), he shall
more than de minimis wrongdoing or negligence, and that does not include management
decisions that are merely debatable); cf. Wood v. Department of Defense, 100 M.S.P.R.
133, ¶ 12 (2005) (finding that the appellant made a nonfrivolous allegation that he
disclosed gross mismanagement when he reported that an agency official failed to
request an investigation into large-scale thefts by agency employees and for having
failed to redeem $90,000 in discount coupons; under the circumstances and in light of
the alleged value of the coupons, the Board found it was not debatable among
reasonable people that the disclosures alleged serious errors by agency management).
12
determine whether the appellant has shown that his protected disclosure was a
contributing factor to that personnel action.
The appeal must be remanded for further proceedings.
¶25 Because the appellant has made out a prima facie case, the agency must
show by clear and convincing evidence that it would have taken the same
personnel actions in the absence of the protected disclosure. 5 U.S.C. § 1221(e)
(1)-(2); Lu v. Department of Homeland Security, 122 M.S.P.R. 335, ¶ 7 (2015).
The administrative judge made no findings regarding this issue. We find it
appropriate to remand this case because the administrative judge, as the hearing
officer, is in the best position to make factual findings and detailed credibility
assessments on the remaining issue. Turner v. Department of Agriculture,
2023 MSPB 25, ¶ 19.
ORDER
¶26 For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order. 5
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
5
In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.