Leonard English, Jr. v. Small Business Administration

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEONARD ENGLISH, JR., DOCKET NUMBER
Appellant, DE-1221-15-0090-W-1
v.
SMALL BUSINESS DATE: April 8, 2015
ADMINISTRATION,
Agency.
THIS ORDER IS NO NPRECEDENTIAL 1
Leonard English, Jr., Aurora, Colorado, pro se.
Sherrie Abramowitz, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction. For the reasons discussed below, we
GRANT the appellant’s petition for review and REMAND the case to the field
office for further adjudication in accordance with this Order.
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
¶2 The appellant filed an individual right of action (IRA) appeal alleging that
the agency issued him a letter of reprimand and negative performance evaluation
in retaliation for his protected disclosures. Initial Appeal File (IAF), Tab 1. The
appellant alleged that he disclosed : that a coworker had revealed to the appellant
that the coworker had violent tendencies; and that he observed the same
coworker’s arrival and departure times, which showed that the coworker was not
working a complete 8-hour shift each day. Id.¶3 The administrative judge issued a jurisdictional order informing the
appellant of his burden to establish jurisdiction over his IRA appeal. IAF, Tab 3.
Based on the appellant’s responses, the administrative judge found the appellant’s
repeating the conversation that he had with his coworker about the coworker’s
self-reported violent tendencies had not revealed a substantial and specific danger
to public health and safety. IAF, Tab 18, Initial Decision (ID) at 4. The
administrative judge also found that the appellant’s observations of his
coworker’s arrival and departure times did not constitute an allegation of time
and attendance fraud, i.e., a violation of law, because the disclosures were too
vague and imprecise to meet the requirement to be specific and detailed for
purposes of making a protected disclosure. ID at 4. He also found that the
disclosures included no allegation of gross mismanagement, waste of funds, or
that the coworker was taking any action pursuant to the authority of his position.
ID at 4.
¶4 In his petition for review, the appellant disagrees with the administrative
judge, arguing that, given the instances of workplace violence in the news, his
disclosure that a coworker revealed that he has violent tendencies discloses
danger. He also asserts that federal employees should work their full shifts, and
that revealing that an employee is not doing so discloses a violation of law.
Petition for Review (PFR) File, Tab 1. The agency has responded in opposition
to the petition. PFR File, Tab 2. The appellant has replied to the agency’s
response. PFR File, Tab 3.
3
¶5 Generally, to establish jurisdiction over an IRA appeal regarding activity
protected under 5 U.S.C. § 2302(b)(8), an appellant must prove that he exhausted
his administrative remedies before the Office of Special Counsel (OSC) and make
nonfrivolous allegations that (1) he engaged in whistleblowing activity by making
a protected disclosure under 5 U.S.C. § 2302(b)(8), and (2) the disclosure was a
contributing factor in the agency’s decision to take or fail to take a personnel
action as defined by 5 U.S.C. § 2302(a). Yunus v. Department of Veterans
Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001); Rusin v. Department of the
Treasury, 92 M.S.P.R. 298, ¶ 12 (2002).
¶6 Activity protected under § 2302(b)(8) occurs when an appellant makes a
disclosure that he reasonably believes evidences any violation of law, rule, or
regulation, gross mismanagement, a gross waste of funds, an abuse of authority,
or a substantial and specific danger to public health and safety. Mudd v.
Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 5, n.3 (2013); Mason v.
Department of Homeland Security, 116 M.S.P.R. 135, ¶ 17 (2011); see 5 U.S.C.
§ 2302(b)(8). The proper test for determining if an employee had a reasonable
belief that his disclosures were protected 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 a violation of law,
rule, or regulation, or one of the other conditions set forth in § 2302(b)(8).
Mason, 116 M.S.P.R. 135, ¶ 17.
¶7 Here, the administrative judge properly found that the appellant established
that he exhausted administrative procedures before OSC. ID at 3. At issue is
whether a disinterested observer with knowledge of the essential facts alleged by
the appellant could reasonably conclude that he reasonably believed that he
disclosed a substantial and specific danger to public health and safety or any
violation of law, rule, or regulation.
¶8 The inquiry into whether an appellant disclosed danger that is sufficiently
substantial and specific to warrant finding that it is protected whistleblowing “is
4
guided by several factors, among these: (1) the likelihood of harm resulting from
the danger; (2) when the alleged harm may occur; and (3) the nature of the harm,
i.e., the potential consequences.” Chambers v. Department of the
Interior, 602 F.3d 1370, 1376 (Fed. Cir. 2010) (internal citations and quotation
marks omitted). The likely occurrence of harm cannot be dependent on a series
of unlikely events. See Parikh v. Department of Veterans Affairs, 116 M.S.P.R.
197, ¶ 15 (2011).
¶9 The appellant stated that his concerns about his coworker arose when the
appellant, after he overheard the coworker shouting and using profanity, engaged
the coworker in conversation and the coworker revealed that he had violent
tendencies and an assault record. IAF, Tab 5 at 40-41. Even considering the
truth of the appellant’s assertion that his coworker shouted, used profanity, and
talked about his violent tendencies and assault record, the likelihood of such
behavior escalating to danger through workplace harm is dependent on a series of
wholly unknown and unpredictable events. Thus, we find that the potential harm
is tantamount to being dependent on a series of unlikely events. See
Parikh, 116 M.S.P.R. 197, ¶ 15. We therefore find that the administrative judge
properly found that the appellant failed to make a nonfrivolous allegation of a
substantial and specific danger to public health and safety.
¶10 The appellant also stated that the coworker revealed that “he has an assault
record and was cleared to come to our office by someone.” IAF, Tab 5 at 40.
The Board has held that disclosure that an assault in violation of criminal law
occurred was a disclosure of a violation of law, rule, or regulation. Lewis v.
Department of Commerce, 101 M.S.P.R. 6, ¶ 11 (2005). The administrative judge
addressed only whether the appellant’s report of the coworker’s statement could
constitute a nonfrivolous allegation of a substantial and specific danger to public
health and safety. The label or characterization an employee gives to his
disclosure does not determine whether it constitutes whistleblowing; rather, the
content of the disclosure and the reasonableness of his belief that it evidences
5
wrongdoing are the determinative factors. Williams v. National Labor Relations
Board, 59 M.S.P.R. 640, 645 (1993). Reviewing the content of the appellant’s
alleged disclosure, we find that he has not alleged that the assault that the
coworker revealed was in violation of criminal law. Further, the appellant did not
allege that he was personally aware of the assault, observed the result of the
assault, or that he was the victim of the assault revealed by the coworker. Thus,
we find that the appellant’s disclosure of his coworker’s alleged revelation of his
assault record did not constitute a nonfrivolous allegation of a reasonable belief
of a violation of law. See Sobczak v. Environmental Protection
Agency, 64 M.S.P.R. 118, 122 (1994) (an appellant’s disclosure does not satisfy
the reasonable belief requirement if he is merely reporting unsupported
speculation).
¶11 As to the appellant’s disclosure of his coworker’s alleged time and
attendance violations, the administrative judge found some indication of a
violation of law, rule, or regulation, but nonetheless found that the appellant’s
alleged disclosure was too vague to qualify as a protected disclosure. ID at 4.
However, any doubt or ambiguity as to whether the appellant has made a
nonfrivolous allegation should be resolved in favor of affording the appellant a
hearing. Huffman v. Office of Personnel Management, 92 M.S.P.R. 429, ¶ 13
(2002). Also, the Board’s case law is clear that time and attendance abuse is a
violation of law, rule, or regulation. DiGiorgio v. Department of the
Navy, 84 M.S.P.R. 6, ¶ 14 (1999); Frederick v. Department of Veterans
Affairs, 63 M.S.P.R. 563, 570 (1994). Further, the appellant’s disclosure of a
violation of law is protected even if he was attempting to impose his personal
views of right and wrong on the workplace. Berkley v. Department of the
Army, 71 M.S.P.R. 341, 352 (1996).
¶12 Additionally, even if some of the appellant’s disclosures of alleged time and
attendance violations concerned trivial matters, there is no de minimis exception
for the violation-of-law aspect of the protected disclosure standard. Id. Congress
6
emphasized that there is no de minimis exception for the violation-of0law aspect
of the protected disclosure standard in the Whistleblower Protection Enhancement
Act of 2012 (WPEA), Pub. L. No. 112-99, 126 Stat. 1465, which is applicable to
this case. Title 5 U.S.C. § 2302(b)(8) of the Whistleblower Protection Act
(WPA) provided that it is a prohibited personnel practice to take or fail to take, or
threaten to take or fail to take, a personnel action against any employee or
applicant for employment because of:
(A) any disclosure of information by an employee or applicant which
the employee or applicant reasonably believes evidences:
(i) a violation of any law, rule, or regulation . . . .
5 U.S.C. § 2302(b)(8) (2011) (emphasis added). The WPEA amended that WPA
provision to provide that it is a prohibited personnel practice to take or fail to
take, or threaten to take or fail to take, a personnel action against any employee
or applicant for employment because of:
(A) any disclosure of information by an employee or applicant which
the employee or applicant reasonably believes evidences:
(i) any violation of any law, rule, or regulation . . . .
5 U.S.C. § 2302(b)(8) (2013) (emphasis added).
¶13 Contrary to the administrative judge’s finding, we find that the appellant
made specific allegations of time and attendance abuse. In an email to an agency
manager, J.V., he stated that, when his coworker “came to work for [the agency],
he came to work late, took extended lunches, and left early.” IAF, Tab 5 at 40.
Because the date that the coworker began with the agency is a matter of record,
we find that the appellant was specific as to some of the dates of the coworker’s
alleged time and attendance violations. Further, although the appellant does not
identify the time of the coworker’s arrival, how long he took for lunch, and the
time of his departure, the appellant’s allegations, based on his personal
observations, that his coworker was being paid for hours that he did not work,
constitutes an assertion of time and attendance abuse. Although the appellant did
not clearly identify a specific law, rule, or regulation, he provided sufficiently
7
detailed statements to implicate an identifiable violation of law, rule, or
regulation. See Chavez v. Department of Veterans Affairs, 120 M.S.P .R. 285,
¶ 18 (2013). Under these circumstances, we find that the appellant had a
reasonable belief that his disclosure evidenced a violation of law, rule, or
regulation, and his disclosure of alleged time and attendance fraud therefore was
protected.
¶14 Because the administrative judge found that the appellant failed to
nonfrivolously allege that he made a protected disclosure, he did not reach the
question of whether the appellant made a nonfrivolous allegation that his alleged
disclosure was a contributing factor in the agency’s decision to take or fail to take
a personnel action as defined by 5 U.S.C. § 2302(a). To satisfy the contributing
factor criterion, an appellant need only raise a nonfrivolous allegation that the
fact or content of the protected disclosure was one factor that tended to affect the
personnel action in any way. Mason, 116 M.S.P.R. 135, ¶ 26. 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 taking the personnel action knew of the disclosure and that the personnel
action occurred within a period of time such that a reasonable person could
conclude that the disclosure was a contributing factor in the personnel action. Id.¶15 As noted, the appellant alleges that in retaliation for his protected
disclosure, the agency issued him a letter of reprimand and a reduced annual
appraisal. A letter of reprimand and a “performance appraisal” are personnel
actions within the meaning of the WPEA. See Horton v. Department of Veterans
Affairs, 106 M.S.P.R. 234, ¶ 18 (2007); Jones v. Department of the
Interior, 74 M.S.P.R. 666, 673-78 (1997).
¶16 The appellant alleged that he disclosed his coworker’s time and attendance
violations to agency officials J.V., P.G., and B.B. in April 2014. IAF, Tab 5 at 5.
In August 2014, J.V. issued the appellant a letter of reprimand. Id. at 7. In
8
October 2014, P.G. signed as the reviewing official on the appellant’s 2014
appraisal. 2 IAF, Tab 1. Therefore, we find that the appellant nonfrivolously
alleged that the officials who issued the letter of warning and who reviewed his
2014 appraisal, respectively, were aware of his disclosures. Further, we find that
the disclosures occurred within a period of time such that a reasonable person
could conclude that the disclosure was a contributing factor. See Carey v.
Department of Veterans Affairs, 93 M.S.P.R. 676, ¶ 13 (2003). Thus, the
appellant has met his burden to raise a nonfrivolous allegation that the fact or
content of the protected disclosure was one factor that tended to affect the
issuance of the letter of warning and his 2014 performance appraisal. 3 See
Mason, 116 M.S.P.R. 135, ¶ 26.
¶17 Consequently, we find that the appellant established jurisdiction over his
IRA appeal with regard to his nonfrivolous allegation that his coworker engaged
in time and attendance fraud. An appellant who meets his jurisdictional burden is
entitled to a hearing on the merits in an IRA appeal. See Aquino v. Department of
Homeland Security, 121 M.S.P.R. 35, ¶ 9 (2014); Mason, 116 M.S.P.R. 135, ¶ 7.
2
For unexplained reasons, P.G., the reviewing official, signed the appellant’s appraisal
on October 23, 2013, the day before the rating official signed it.
3
The appellant’s overall rating on the 2014 appraisal was Meets Expectations. IAF,
Tab 1. This was a reduced appraisal, as the appellant’s overall rating on the 2013
appraisal was Outstanding. IAF, Tab 5 at 57. However, the statutory provision that a
performance appraisal is a personnel action contains no qualify ing language that would
require the contested performance appraisal to be either less than satisfactory or
tangib ly lower than the appraisal from the prior year in order to qualify as a personnel
action allegedly taken in reprisal for a protected disclosure. See Rumsey v. Department
of Justice, 120 M.S.P.R. 259, ¶ 16 (2013).
9
ORDER
For the reasons discussed above, we REMAND this case to the field
office for further adjudication, including a hearing, in accordance with this
Remand Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.