The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID M. HENDY, DOCKET NUMBER
Appellant, CH-1221-19-0217-W-1
v.
DEPARTMENT OF VETERANS DATE: June 12, 2024
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
David M. Hendy , Chicago, Illinois, pro se.
Stephanie Macht , Hines, Illinois, 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
dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant's petition for review,
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
REVERSE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 On February 16, 2019, the appellant filed an IRA appeal with the Board
alleging that his nonselection in or around May 2018 for a Green Environmental
Management System (GEMS) Manager position at the Edward Hines, Jr. Veterans
Affairs Hospital (Hines VA) constituted reprisal for making protected disclosures
and engaging in protected activities under 5 U.S.C. § 2302(b)(8)-(9). Initial
Appeal File (IAF), Tab 1 at 3, 5, Tab 2 at 4-6, Tab 6 at 5-13. Specifically, the
appellant alleged that, during his prior employment as an Industrial Hygienist at
the Hines VA from December 2015 through June 2016, he made, and was
perceived to have made, disclosures about safety and health hazards and
mismanagement. IAF, Tab 6 at 24, 35-36, Tab 12 at 7, 28, Tab 13 at 16, 21-22.
He further claimed that, at a meeting with the Hines VA Director in or around
October 2017, he made, and was perceived to have made, disclosures about
asbestos, mismanagement, and violations of veterans’ preference laws. IAF,
Tab 6 at 24, Tab 12 at 17, Tab 13 at 17.
¶3 In addition, the appellant asserted that his May 2018 nonselection
constituted reprisal for his engagement, and perceived engagement, in the
following alleged activities: (1) he filed an equal employment opportunity (EEO)
complaint, a whistleblower reprisal complaint with the Office of Special Counsel
(OSC), 2 and two Board appeals concerning his July 2013 termination from the
Jesse Brown Veterans Affairs Medical Center (Jesse Brown VA), IAF, Tab 6
at 29, 35, Tab 13 at 18; (2) he filed a June 2016 complaint with the agency’s
Office of Inspector General (OIG) concerning safety issues at the Hines VA, IAF,
Tab 2 at 5-6, Tab 6 at 24, 31, 34, 36, Tab 12 at 6, 9, Tab 13 at 21; (3) he filed
2
The record contains documents pertaining to four separate OSC complaints the
appellant filed. The appellant’s 2013 OSC complaint alleging that his termination was
retaliatory was designated OSC File No. MA-13-4191. PFR File, Tab 7 at 31-33.
3
complaints with the Department of Labor (DOL) under the Veterans Employment
Opportunities Act of 1998 (VEOA) and the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA), a November 2017 OSC
complaint, 3 and three IRA, VEOA, and USERRA appeals with the Board
concerning the agency’s failure to select him for positions in 2016-2017, IAF,
Tab 2 at 5-6, Tab 5 at 6, 9, 18-20, 25, Tab 6 at 24-25, 34-35, Tab 12 at 5-7, 9, 12,
20, Tab 13 at 19-21; and (4) he filed a May 2018 VEOA complaint and an August
2018 USERRA complaint with DOL and two August 2018 VEOA and USERRA
appeals with the Board concerning his nonselection for the GEMS Manager
position, IAF, Tab 5 at 6, 21-22, 25, Tab 6 at 25, 30-31, Tab 12 at 6, 9-10, 25, 27,
Tab 13 at 19. 4
¶4 Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 19, Initial Decision (ID) at 1-2, 13. Regarding the appellant’s claim of
retaliation for making protected whistleblowing disclosures under 5 U.S.C.
§ 2302(b)(8), she found that he failed to prove that he exhausted his
administrative remedies before OSC. ID at 9-11. She further found that,
although he proved exhaustion regarding his claim of retaliation for engaging in
activities protected under 5 U.S.C. § 2302(b)(9) (specifically, filing a
November 2017 OSC complaint, an August 2018 USERRA complaint with DOL,
and an August 2018 Board appeal), he failed to nonfrivolously allege that he
engaged in a protected activity that was a contributing factor in his nonselection.
ID at 9-13.
3
The November 2017 complaint, the second OSC complaint the appellant filed, was
OSC File No. MA-18-1040. IAF, Tab 12 at 36, Tab 14 at 5.
4
The appellant’s pleadings are not a model of clarity and, as described in the initial
decision, he has a lengthy and complicated history with the agency. IAF, Tab 19, Initial
Decision at 2-7. In light of his pro se status, however, we have liberally construed his
pleadings. See Melnick v. Department of Housing & Urban Development , 42 M.S.P.R.
93, 97-98 (1989), aff’d, 899 F.2d 1228 (Fed. Cir. 1990) (Table).
4
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 4. 5 The agency has filed a response, PFR File, Tab 6, to which the
appellant has replied, PFR File, Tab 7.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 To establish jurisdiction in a typical IRA appeal under the Whistleblower
Protection Enhancement Act of 2012 (WPEA), 6 an appellant must prove by
preponderant evidence 7 that he exhausted his administrative remedies before OSC
and make nonfrivolous allegations 8 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 as defined by 5 U.S.C. § 2302(a)(2)(A). 9 Corthell v. Department
of Homeland Security, 123 M.S.P.R. 417, ¶ 8 (2016), overruled on other grounds
by Requena v. Department of Homeland Security , 2022 MSPB 39. Once an
5
The appellant filed a perfected petition for review after the Office of the Clerk of the
Board granted his request for an extension of time to file a perfected petition for
review. PFR File, Tabs 2-4.
6
Pursuant to the WPEA, effective December 27, 2012, Congress expanded the grounds
on which an appellant may file an IRA appeal with the Board. Rebstock Consolidation
v. Department of Homeland Security, 122 M.S.P.R. 661, ¶ 5 (2015). The alleged events
at issue in the instant appeal occurred after the WPEA’s effective date. The relevant
holdings of pre-WPEA case law that we have cited in this Remand Order have not been
affected by the WPEA.
7
A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
8
A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
9
The National Defense Authorization Act for Fiscal Year 2018 (2018 NDAA),
Pub. L. No. 115-91, 131 Stat. 1283, was signed into law on December 12, 2017, after
some of the events alleged in this appeal occurred. Section 1097 of the 2018 NDAA
amended various provisions of Title 5 of the U.S. Code. Our decision to remand this
appeal would be the same under both pre- and post-NDAA law.
5
appellant establishes jurisdiction over an IRA appeal, he is entitled to a hearing
on the merits of his claim, which he must prove by preponderant evidence.
Rebstock Consolidation v. Department of Homeland Security , 122 M.S.P.R. 661,
¶ 9 (2015). For the following reasons, we reverse the initial decision because we
find that the appellant has established jurisdiction over this IRA appeal.
¶7 For the first time on review, the appellant has submitted additional
documentation (including letters and emails with attachments) that he claims
proves he exhausted his remedies with OSC 10 and shows he made nonfrivolous
allegations of jurisdiction. 11 PFR File, Tab 2 at 15, 18, 28-33, Tab 7 at 5-6, 13,
20-22, 25-26, 31-33. We have considered such documentation because the issue
of the Board’s jurisdiction is always before the Board and may be raised by either
party or sua sponte by the Board at any time during a Board proceeding. Simnitt
v. Department of Veterans Affairs, 113 M.S.P.R. 313, ¶ 5 (2010).
The appellant has proven by preponderant evidence that he exhausted his
administrative remedies before OSC.
¶8 Under 5 U.S.C. § 1214(a)(3), an employee is required to “seek corrective
action from [OSC] before seeking corrective action from the Board” through an
IRA appeal. Miller v. Federal Deposit Insurance Corporation, 122 M.S.P.R. 3,
¶ 6 (2014), aff’d, 626 F. App’x 261 (Fed. Cir. 2015). The substantive
requirements of exhaustion are met when an appellant has provided OSC with a
sufficient basis to pursue an investigation. Chambers v. Department of Homeland
Security, 2022 MSPB 8, ¶ 10. The Board’s jurisdiction over an IRA appeal is
limited to those issues that have been previously raised with OSC, but appellants
may give a more detailed account of their whistleblowing activities before the
Board than they did to OSC. Id. An appellant who raises a claim of reprisal for
10
The OSC complaint in which the appellant raised the claims at issue in this appeal
was OSC File No. MA-18-5251. IAF, Tab 12 at 33-34.
11
In addition, the appellant has resubmitted OSC correspondence that already is a part
of the record before the administrative judge. PFR File, Tab 2 at 27, Tab 7 at 23-24,
27-30; IAF, Tab 1 at 8-9, Tab 14 at 5-7, 9-10, Tab 18 at 45.
6
perceived whistleblowing or perceived engagement in activity protected under
5 U.S.C. § 2302(b)(9) must establish that he exhausted his remedies with OSC
regarding that claim. King v. Department of the Army, 116 M.S.P.R. 689, ¶ 9
(2011); see Corthell, 123 M.S.P.R. 417, ¶¶ 12-13. Appellants may demonstrate
exhaustion of their OSC remedies with evidence regarding their initial OSC
complaint and other communications with OSC concerning their allegations.
See Baldwin v. Department of Veterans Affairs, 113 M.S.P.R. 469, ¶ 8 (2010).
¶9 On petition for review, the appellant argues that he has proven exhaustion
regarding his claim that his nonselection for the GEMS Manager position
constituted reprisal for making protected disclosures and engaging in protected
activities under 5 U.S.C. § 2302(b)(8)-(9). PFR File, Tab 4 at 5-9, Tab 7 at 5-13.
For the following reasons, we agree.
The appellant has proven exhaustion regarding his reprisal claims
under 5 U.S.C. § 2302(b)(8).
¶10 Based on the appellant’s submission of the following evidence, we find that
he has proven exhaustion regarding his reprisal claims under 5 U.S.C. § 2302(b)
(8). He submitted a December 14, 2018 letter from OSC that summarized his
whistleblower reprisal complaint as alleging that the agency failed to select him
for the GEMS Manager position in retaliation for, among other things, his report
in 2016 of “possible problems with asbestos” in a Veterans Affairs Medical
Center. IAF, Tab 1 at 8-9. 12 He further submitted a January 16, 2018 email that
he sent to OSC in response to its preliminary determination to close its inquiry
into his prior whistleblower reprisal complaint concerning his nonselections in
2016-2017. IAF, Tab 12 at 36-43. In that email, he alleged that he made, and
was perceived to have made, disclosures about safety and health hazards and
12
If the appellant chooses to submit correspondence from OSC, it may be relied upon to
prove exhaustion of remedies with OSC. See Lewis v. Department of Defense, 123
M.S.P.R. 255, ¶ 10 (2016). However, the administrative judge may not rely upon
OSC’s decision or its characterization of the appellant’s allegations to make findings on
the merits of his IRA appeal. See 5 U.S.C. § 1214(a)(2)(B); Cassidy v. Department of
Justice, 118 M.S.P.R. 74, ¶ 16 (2012).
7
mismanagement to agency officials during his prior Hines VA employment as an
Industrial Hygienist. Id. The appellant declared under penalty of perjury that he
explained to OSC in his most recent OSC complaint that his nonselection for the
GEMS Manager position constituted additional reprisal for the matters described
in his January 16, 2018 email. PFR File, Tab 7 at 3, 5; IAF, Tab 12 at 3, 6; see
Chambers, 2022 MSPB 8, ¶ 11 (holding that exhaustion may be proved through a
declaration attesting to the matters raised with OSC). He further declared that he
raised before OSC the issue of meeting with the Hines VA Director to discuss
matters related to his application for his former Industrial Hygienist position in
October 2017, IAF, Tab 12 at 3, 17, and that he provided OSC with an Industrial
Hygiene event tracking table, a May 3, 2016 memorandum on lead and mold, and
a March 3, 2016 report on a mold investigation that he had prepared during his
prior Hines VA employment, PFR File, Tab 4 at 3, 6-8; IAF, Tab 12 at 44, Tab
13 at 28-30, Tab 16 at 4-42. Therefore, we find that the appellant has proven
exhaustion regarding his claim that his nonselection for the GEMS Manager
position constituted retaliation for alleged disclosures he made, and was
perceived to have made, to agency officials during his prior Hines VA
employment from 2015-2016 and to the Hines VA Director at an October 2017
meeting.
The appellant has proven exhaustion regarding his reprisal claims
under 5 U.S.C. § 2302(b)(9).
¶11 We further find that the appellant has proven exhaustion regarding his
reprisal claims under 5 U.S.C. § 2302(b)(9) based on his submission of the
following evidence. In the appellant’s January 16, 2018 email that he sent to
OSC, he alleged that the agency perceived him as a whistleblower based on his
2013 OSC complaint, Board appeals, and EEO settlement concerning his
July 2013 termination from his prior Jesse Brown VA employment and based on
his OIG complaint concerning problems at the Hines VA. IAF, Tab 12 at 37, 41.
He further alleged in his email to OSC that he filed one USERRA and two VEOA
8
complaints with DOL concerning his nonselections in 2016-2017. Id. at 40. In
addition, the appellant submitted an October 13, 2017 letter from OIG confirming
that he met with OIG in June 2016 to discuss safety concerns at the Hines VA.
Id. at 35. Moreover, the appellant declared under penalty of perjury that OSC
considered his January 16, 2018 email and the October 13, 2017 OIG letter as
part of his most recent whistleblower reprisal complaint regarding his
nonselection for the GEMS Manager position. Id. at 3, 6.
¶12 Further, the appellant has submitted OSC letters dated November 15 and
December 14, 2018, which summarized his whistleblower reprisal complaint as
alleging that the agency failed to select him for the GEMS Manager position in
retaliation for his prior November 2017 OSC complaint, his August 2018
USERRA complaint with DOL, and his August 2018 Board appeal. PFR File,
Tab 7 at 25; IAF, Tab 1 at 8. He also has submitted a separate OSC letter
dated December 14, 2018, which acknowledged that he raised an additional
allegation of reprisal for filing an EEO complaint. PFR File, Tab 7 at 21. In
addition, the appellant has submitted September 2018 emails that he sent to OSC
in which he raised the following issues: he alleged that the selecting official for
the GEMS Manager position was “coerced by ex[ ]parte remarks” from certain
agency officials because of his IRA, USERRA, and VEOA appeals concerning his
nonselections in 2016-2017 and his USERRA and VEOA appeals concerning his
nonselection for the GEMS Manager position; and he discussed his USERRA
complaint that DOL had referred to OSC and his VEOA complaint with DOL
concerning the GEMS Manager position. 13 PFR File, Tab 2 at 29-32.
¶13 Therefore, we find that the appellant has proven exhaustion regarding his
claim that his nonselection for the GEMS Manager position constituted reprisal
for his engagement, and perceived engagement, in the following alleged
activities: (1) the 2013 OSC complaint, an EEO complaint, and two Board
13
OSC designated the USERRA complaint referred by DOL as OSC File No. RE-18-
5666. IAF, Tab 18 at 14-15.
9
appeals he filed concerning his July 2013 termination from his prior Jesse Brown
VA employment; (2) a June 2016 OIG complaint he filed concerning safety issues
at the Hines VA; (3) a November 2017 whistleblower reprisal complaint he filed
with OSC, one USERRA and two VEOA complaints he filed with DOL, and three
IRA, USERRA, and VEOA appeals he filed with the Board concerning his
nonselections in 2016-2017; (4) a May 2018 VEOA complaint and an
August 2018 USERRA complaint he filed with DOL and two August 2018 VEOA
and USERRA appeals he filed with the Board concerning his nonselection for the
GEMS Manager position; and (5) a USERRA complaint he filed with DOL that
was referred to OSC.
The appellant has made nonfrivolous allegations sufficient to establish
jurisdiction over this IRA appeal.
¶14 The next jurisdictional inquiry is whether the appellant has made
nonfrivolous allegations that he made a whistleblowing disclosure or engaged in a
protected activity that was a contributing factor in his nonselection for the
GEMS Manager position. 14 Corthell, 123 M.S.P.R. 417, ¶ 8. A nonfrivolous
allegation of a protected whistleblowing disclosure is an allegation of facts that,
if proven, would show that the appellant disclosed a matter that a reasonable
person in his position would believe evidenced one of the categories of
wrongdoing specified in 5 U.S.C. § 2302(b)(8). Salerno v. Department of the
Interior, 123 M.S.P.R. 230, ¶ 6 (2016). 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, or regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety. Id.
14
A nonselection is a personnel action. King, 116 M.S.P.R. 689, ¶ 10.
10
¶15 To satisfy the contributing factor criterion at the jurisdictional stage, an
appellant only need raise a nonfrivolous allegation that the fact, or content of, the
whistleblowing disclosure or protected activity was one factor that tended to
affect the personnel action in any way. See id., ¶ 13. Under the
knowledge/timing test, an appellant may nonfrivolously allege that the disclosure
or activity 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 or activity and that the personnel action occurred within a period
of time such that a reasonable person could conclude that the disclosure or
activity was a contributing factor in the personnel action. See 5 U.S.C. § 1221(e)
(1); Salerno, 123 M.S.P.R. 230, ¶ 13.
¶16 For a claim of reprisal for perceived whistleblowing or engagement in other
protected activity, the relevant jurisdictional inquiry is whether the appellant has
made nonfrivolous allegations that (1) the agency perceived that he made, or
intended to make, a protected disclosure under 5 U.S.C. § 2302(b)(8) or engaged
in an activity protected under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and
(2) the agency’s perception was a contributing factor in the personnel action. See
Corthell, 123 M.S.P.R. 417, ¶ 13; King, 116 M.S.P.R. 689, ¶¶ 8-9.
¶17 For the following reasons, we find that the appellant has made nonfrivolous
allegations sufficient to establish jurisdiction over some, but not all, of his
exhausted claims.
The appellant’s alleged disclosures under 5 U.S.C. § 2302(b)(8).
The appellant has failed to nonfrivolously allege that he made,
or was perceived to have made, a protected whistleblowing
disclosure concerning gross mismanagement during his prior
Hines VA employment.
¶18 The appellant alleged that he made the following disclosures concerning
mismanagement during his prior Hines VA employment: (1) he questioned the
Assistant to the Chief of Engineering why there was no emergency funding for
11
asbestos cleanup, IAF, Tab 13 at 22; (2) he sent to his supervisor a March 16,
2016 email in which he claimed that it was inappropriate for her to ask the Fire
Protection Manager to annotate his work hours and described his concerns about
the adequacy of the Fire Protection Manager’s confined-space rescue plan for a
steam-tunnel system, IAF, Tab 14 at 17-19; and (3) he sent to his supervisor a
May 5, 2016 email in which he requested additional resources to support the
Industrial Hygiene program, IAF, Tab 6 at 37. Because the substance of these
alleged disclosures suggests, at most, that management committed de minimis
wrongdoing or negligence, we find that the appellant has failed to make a
nonfrivolous allegation that he made, or was perceived to have made, a protected
disclosure evidencing gross mismanagement. See Swanson v. General Services
Administration, 110 M.S.P.R. 278, ¶ 11 (2008) (explaining that “gross
mismanagement” means more than de minimis wrongdoing or negligence; it
means a management action or inaction that creates a substantial risk of
significant adverse impact on the agency’s ability to accomplish its mission) .
The appellant has nonfrivolously alleged that he made
protected whistleblowing disclosures of safety and health
hazards to agency officials during his prior Hines VA
employment that were a contributing factor in his
nonselection.
¶19 Although the appellant’s pleadings are not a model of clarity, we have
identified the following disclosures of safety and health hazards that he allegedly
made during his prior Hines VA employment: (1) he provided to his managers
and the Human Resources (HR) Officer an Industrial Hygiene event tracking table
in which he identified specific rooms in the Hines VA that contained dangerous
levels of lead, mold, and asbestos, PFR File, Tab 4 at 7-8; IAF, Tab 12 at 44;
(2) he reported to his supervisor that, in Building 1, there was mold in the laundry
area and that Information Technology employees were being exposed to asbestos,
IAF, Tab 12 at 39, Tab 13 at 21; (3) he reported to his supervisor and the former
Chief of Engineering that he was concerned about mold and asbestos in day care
12
areas and the men’s bathroom in Building 2, IAF, Tab 6 at 24; (4) he sent to his
supervisor a February 9, 2016 email in which he described his concerns about the
adequacy of a hazardous waste storage shed, IAF, Tab 14 at 13; (5) he provided
to his managers and the HR Officer a March 3, 2016 report in which he explained
that HR employees were being exposed to mold and unsanitary conditions in
Building 17, PFR File, Tab 2 at 19, Tab 4 at 8; IAF, Tab 16 at 4-42; (6) he sent to
his supervisor a March 16, 2016 email in which he described his concerns about
the adequacy of a confined-space rescue plan for an outdated steam-tunnel system
that posed the risk of steam-line ruptures, IAF, Tab 6 at 35, Tab 12 at 7, Tab 13
at 23, Tab 14 at 17-18; and (7) he provided to his managers and the HR Officer a
May 3, 2016 memorandum in which he discussed the possibility of lead, asbestos,
mold, and fungus in the auditorium in Building 9, where children recently had
attended a community event, PFR File, Tab 4 at 8; IAF, Tab 2 at 33, Tab 13
at 28-30.
¶20 In determining whether a disclosure evidenced a substantial and specific
danger to public health or safety, it is relevant for the Board to consider factors
such as (1) the likelihood of harm resulting from the danger, (2) the imminence of
the potential harm, and (3) the nature of the potential harm. Parikh v.
Department of Veterans Affairs, 116 M.S.P.R. 197, ¶ 14 (2011). Considering
these factors, we find that the appellant’s alleged disclosures of safety and health
hazards, as described above, are specific and, if true, would pose a likely,
imminent, and serious danger to the health and safety of staff, patients, and
visitors at the Hines VA. Therefore, we find that the appellant nonfrivolously
alleged that he made protected disclosures that a reasonable person with his
Industrial Hygienist experience would believe evidenced a substantial and
specific danger to public health or safety. See, e.g., Wojcicki v. Department of
the Air Force, 72 M.S.P.R. 628, 634-35 (1996). We further find that the
appellant nonfrivolously alleged that a reasonable person in his position would
believe that the alleged disclosures of safety and health hazards described above
13
also evidenced a violation of a law, rule, or regulation concerning workplace
safety. See, e.g., Schoenig v. Department of Justice, 120 M.S.P.R. 318, ¶ 9
(2013).
¶21 For the following reasons, we find that the appellant has nonfrivolously
alleged that the disclosures of safety and health hazards described above were a
contributing factor in his nonselection. Because the appellant allegedly made
such disclosures during his prior Hines VA Employment from December 2015
through June 2016, IAF, Tab 13 at 16, and his nonselection occurred around
May 2018, IAF, Tab 1 at 3, Tab 2 at 5, he does not meet the timing component of
the knowledge/timing test, see Salerno, 123 M.S.P.R. 230, ¶ 14 (observing that a
personnel action taken within approximately 1 to 2 years of the disclosures
satisfies the timing component of the knowledge/timing test) . However, the
knowledge/timing test is not the only way for an appellant to satisfy the
contributing factor criterion. Dorney v. Department of the Army, 117 M.S.P.R.
480, ¶ 14 (2012). When, as here, an appellant fails to satisfy the
knowledge/timing test, the Board considers 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
proposing or deciding officials, and whether these individuals had a desire or
motive to retaliate against the appellant. See id., ¶ 15. Any weight given to a
whistleblowing disclosure, either alone or in combination with other factors, can
satisfy the contributing factor criterion. Id.
¶22 Here, the appellant alleged that the selecting official’s supervisor, who was
the Associate Director and chaired the Hines Safety Committee, had general
knowledge of his disclosures. IAF, Tab 12 at 19, Tab 13 at 16, 21, 23. The
appellant further alleged that he gave the HR Officer the Industrial Hygiene event
tracking table, the March 3, 2016 report on a mold investigation, and the May 3,
2016 memorandum on lead and mold. PFR File, Tab 2 at 19, Tab 4 at 7-8; IAF,
Tab 12 at 44, Tab 13 at 28-30, Tab 16 at 4-42. Moreover, the appellant alleged
14
that the HR Officer sent him an email on May 9, 2018, in which the HR Officer
stated that the reason the appellant was not selected for the GEMS Manager
position was because he was not on the certificate of eligibles. IAF, Tab 2 at 5,
Tab 6 at 31. The appellant further alleged that the selecting official’s supervisor
and the HR Officer instructed the selecting official to hire an applicant from the
certificate of eligibles only. IAF, Tab 6 at 23-24. The appellant argues that the
agency had the authority to amend the certificate and to consider him for the
GEMS Manager position as a qualified applicant and a disabled veteran, but the
agency wrongfully denied his request to be on the certificate that he had made
when he submitted his application. Id. at 22-25, 28-31. To support his argument,
the appellant submitted a letter from DOL determining that the agency had
violated his veterans’ preference rights regarding his nonselection. IAF, Tab 1
at 10. Because the appellant has raised a material issue about the strength or
weakness of the agency’s reasons for not selecting him, we find that he has
nonfrivolously alleged that his disclosures of safety and health hazards that were
known to the selecting official’s supervisor and the HR Officer were a
contributing factor in their actions that influenced the selecting official’s
decision. See, e.g., Dorney, 117 M.S.P.R. 480, ¶ 17.
The appellant has nonfrivolously alleged that he made
protected whistleblowing disclosures about asbestos and
veterans’ preference violations to the Hines VA Director in an
October 2017 meeting that were a contributing factor in his
nonselection.
¶23 The appellant alleged that, in an October 2017 meeting with the Hines VA
Director, he reiterated his concern that employees were being exposed to
asbestos. IAF, Tab 6 at 24, Tab 13 at 17. Assuming that the appellant raised the
same or similar disclosures concerning asbestos that he allegedly had made
during his prior Hines VA employment, as described and analyzed above, we find
that he nonfrivolously alleged that he made a protected disclosure evidencing a
substantial and specific danger to public health or safety and a violation of a law,
15
rule, or regulation concerning workplace safety. See 5 U.S.C. § 2302(f)(1)(B)
(providing that a disclosure shall not be excluded from subsection (b)(8) because
it revealed information that had been previously disclosed). We further find that
the appellant’s allegation that he also complained to the Hines VA Director at the
meeting about how the agency was violating his veterans’ preference rights and
denying him the ability to compete by failing to rehire him constitutes a
nonfrivolous allegation that he made a protected disclosure evidencing a violation
of a law, rule, or regulation concerning veterans’ preference. IAF, Tab 6 at 24,
Tab 12 at 17, Tab 13 at 17. However, we find that the appellant’s allegation that
he told the Hines VA Director that he could help the agency fix problems such as
the mismanagement of the Industrial Hygiene program is not sufficiently specific
or detailed to nonfrivolously allege that he made, or was perceived to have made,
a protected disclosure evidencing gross mismanagement. IAF, Tab 13 at 17; see
Salerno, 123 M.S.P.R. 230, ¶¶ 6-7.
¶24 Moreover, we find that the appellant made nonfrivolous allegations
satisfying the contributing factor criterion through the knowledge/timing test.
Specifically, the appellant’s May 2018 nonselection occurred less than 1 year
after he allegedly made protected disclosures to the Hines VA Director in an
October 2017 meeting. IAF, Tab 1 at 3, Tab 2 at 5, Tab 6 at 24, Tab 12 at 17,
Tab 13 at 17. Thus, the timing component is satisfied. See Salerno,
123 M.S.P.R. 230, ¶ 14. The appellant further alleged that the Hines VA Director
advised the selecting official not to hire him for the GEMS Manager position.
IAF, Tab 2 at 4. Accordingly, we find that the appellant nonfrivolously alleged
that the selecting official had constructive knowledge of his alleged disclosures to
the Hines VA Director about asbestos and veterans’ preference violations . See
Bradley v. Department of Homeland Security, 123 M.S.P.R. 547, ¶ 15 (2016)
(observing that an appellant may establish an official’s constructive knowledge of
a protected disclosure by demonstrating that an individual with actual knowledge
of the disclosure influenced the official accused of taking the retaliatory action).
16
The appellant’s alleged activities under 5 U.S.C. § 2302(b)(9).
The appellant has nonfrivolously alleged that he engaged in
protected activities under 5 U.S.C. § 2302(b)(9)(C) that were a
contributing factor in his nonselection.
¶25 Protected activity under 5 U.S.C. § 2302(b)(9)(C) is “cooperating with or
disclosing information to the Inspector General (or any other component
responsible for internal investigation or review) of an agency, or the Special
Counsel, in accordance with applicable provisions of law.” The appellant has
submitted a letter from OIG confirming that he filed, a June 2016 OIG complaint
concerning safety issues at the Hines VA. IAF, Tab 2 at 27. Further, the record
contains a letter from OSC dated October 18, 2018, confirming that, pursuant to
the appellant’s referral request, OSC reviewed his USERRA complaint that he
had filed with DOL alleging that he had been denied reinstatement and was not
selected for vacancies in 2016-17 after he had resigned from his position to seek
treatment for service-connected injuries. IAF, Tab 18 at 14-15. Therefore, we
find that the appellant has nonfrivolously alleged that he engaged in protected
activity under 5 U.S.C. § 2302(b)(9)(C) by filing the aforementioned OIG
complaint and by referring his USERRA complaint to OSC.
¶26 For the following reasons, we find that the appellant has nonfrivolously
alleged that his OIG complaint and the referral of his USERRA complaint to OSC
were a contributing factor in his nonselection. Specifically, the appellant’s May
2018 nonselection occurred less than 2 years after he allegedly filed an OIG
complaint in June 2016 IAF, Tab 1 at 3, Tab 2 at 5, 27. Thus, the timing
component of the knowledge/timing test is satisfied. See Salerno, 123 M.S.P.R.
230, ¶ 14. In addition, the appellant alleged that the HR Officer knew of the
complaint. IAF, Tab 2 at 5, Tab 5 at 9, 21, Tab 13 at 18-19, 21. The appellant
further alleged that the selecting official had constructive knowledge of the
complaint because the HR Officer, with the HR staff, influenced the selecting
official by effectively telling him not to hire the appellant. IAF, Tab 2 at 5, Tab 6
17
at 24, Tab 13 at 20-21; see Bradley, 123 M.S.P.R. 547, ¶ 15. Therefore, we find
that the appellant has satisfied the contributing factor criterion through the
knowledge/timing test for purposes of his June 2016 OIG complaint.
¶27 Although the appellant does not specify when he requested that DOL refer
his USERRA complaint to OSC, the record reflects that OSC received his file
from DOL by at least September 2018 and that it ended its review of his case in
October 2018. PFR File, Tab 2 at 29; IAF, Tab 18 at 14. The record further
reflects that DOL’s investigation of his USERRA complaint was ongoing in
November and December 2017. IAF, Tab 13 at 32, Tab 18 at 51-53. Moreover,
the appellant alleged that the selecting official and the HR Officer knew of his
USERRA complaint because they reviewed his related Freedom of Information
Act request in February 2018. PFR File, Tab 7 at 8; IAF, Tab 6 at 24, 34, Tab 12
at 7, 12. Because the appellant’s USERRA complaint accused the HR Officer of
wrongdoing regarding the appellant’s nonselections in 2016-2017, we find that
the appellant has nonfrivolously alleged that the HR Officer, who purportedly
influenced the selecting official, had a motive to retaliate based on the appellant’s
USERRA complaint. IAF, Tab 12 at 36-40, Tab 13 at 20-21, Tab 18 at 14, 51.
Thus, we find that the appellant has made nonfrivolous allegations sufficient to
establish that the referral of his USERRA complaint to OSC was a contributing
factor in his nonselection. 15 See Dorney, 117 M.S.P.R. 480, ¶ 15.
The appellant has nonfrivolously alleged that he engaged in
protected activities under 5 U.S.C. § 2302(b)(9)(A)(i) that
were a contributing factor in his nonselection.
¶28 Protected activity under 5 U.S.C. § 2302(b)(9)(A)(i) is “the exercise of any
appeal, complaint, or grievance right granted by any law, rule, or regulation—
(i) with regard to remedying a violation of [5 U.S.C. § 2302(b)(8)].” Thus, only
appeals, complaints, or grievances seeking to remedy whistleblower reprisal are
15
On remand, the administrative judge should address when the appellant requested that
DOL refer his USERRA complaint to OSC in determining whether he proves the
contributing factor criterion.
18
covered under 5 U.S.C. § 2302(b)(9)(A)(i). See Mudd v. Department of Veterans
Affairs, 120 M.S.P.R. 365, ¶¶ 6-7 (2013). Here, it is undisputed that the appellant
sought to remedy alleged whistleblower reprisal in two prior Board appeals he
filed concerning his July 2013 termination from his prior Jesse Brown VA
employment and a prior IRA appeal he filed with the Board concerning his
nonselections in 2016-2017. ID at 2-3, 5. Further, the appellant filed the 2013
OSC complaint alleging that his July 2013 termination from his prior Jesse Brown
VA employment had been retaliatory and the November 2017 OSC complaint
asserting retaliation with respect to his nonselections in 2016-2017. Therefore,
we find that the appellant has nonfrivolously alleged that he engaged in protected
activity under 5 U.S.C. § 2302(b)(9)(A)(i) by filing these prior Board appeals and
OSC complaints.
¶29 However, we find that the appellant has failed to nonfrivolously allege that
he engaged, or was perceived to have engaged, in protected activity under
5 U.S.C. § 2302(b)(9)(A)(i) based on the following remaining alleged activities
that he exhausted: an EEO complaint he filed concerning his July 2013
termination from his prior Jesse Brown VA employment; one USERRA and two
VEOA complaints he filed with DOL and two USERRA and VEOA appeals he
filed with the Board concerning his nonselections in 2016-2017; a May 2018
VEOA complaint and an August 2018 USERRA complaint he filed with DOL and
two August 2018 VEOA and USERRA appeals he filed with the Board
concerning his nonselection for the GEMS Manager position. 16 See supra ¶ 13.
In particular, the appellant’s submissions do not suggest that he sought to remedy
alleged whistleblower reprisal in any of these complaints or appeals; rather, his
submissions suggest that he filed them to remedy alleged EEO, USERRA, and
16
Moreover, the appellant’s May 20, 2018 VEOA complaint and August 2018 USERRA
complaint he filed with DOL and two August 2018 VEOA and USERRA appeals he
filed with the Board could not have been a contributing factor in his nonselection
because he allegedly filed them after he was not selected on or around May 9, 2018.
IAF, Tab 1 at 3, Tab 2 at 5, 11.
19
VEOA violations. PFR File, Tab 2 at 29-31; IAF, Tab 2 at 9-11, Tab 6 at 29,
Tab 7 at 27, Tab 12 at 40; see ID at 2-6. Even if the appellant’s alleged EEO and
DOL complaints and USERRA and VEOA appeals constitute protected activity
under 5 U.S.C. § 2302(b)(9)(A)(ii), they cannot form the basis of an IRA appeal.
See 5 U.S.C. § 1221(e); Mudd, 120 M.S.P.R. 365, ¶ 7.
¶30 For the following reasons, we find that the appellant has nonfrivolously
alleged that his two prior Board appeals concerning his July 2013 termination
from his prior Jesse Brown VA employment and his prior IRA appeal concerning
his nonselections in 2016-2017 were a contributing factor in his nonselection for
the GEMS Manager position. Regarding the appellant’s prior IRA appeal
concerning his nonselections in 2016-2017, we find that the appellant has met the
timing component of the knowledge/timing test because his May 2018
nonselection allegedly occurred approximately 5 months after he filed that appeal
in December 2017. ID at 5; IAF, Tab 1 at 3, Tab 2 at 5; see Salerno,
123 M.S.P.R. 230, ¶ 14. We further find that the appellant’s assertions that the
selecting official’s supervisor and the HR Officer had knowledge of his prior
IRA appeal, PFR File, Tab 2 at 31, and that they effectively told the selecting
official not to hire the appellant, IAF, Tab 2 at 5, Tab 6 at 24, Tab 13 at 20-21,
constitute nonfrivolous allegations that the selecting official had constructive
knowledge of his prior IRA appeal. See Bradley, 123 M.S.P.R. 547, ¶ 15.
Therefore, we find that the appellant has satisfied the contributing factor criterion
through the knowledge/timing test for purposes of his prior IRA appeal.
¶31 Regarding the appellant’s two prior Board appeals concerning his July 2013
termination from his prior Jesse Brown VA employment, the appellant alleged
that the HR Officer had knowledge of these appeals because the HR Officer asked
him questions related to the matter. IAF, Tab 6 at 29, Tab 12 at 37; see ID at 2-3.
Further, the appellant has alleged that the selecting official knew about these
appeals because the selecting official thought he had contested his termination.
PFR File, Tab 7 at 7; IAF, Tab 7 at 19, Tab 13 at 22. As explained above, the
20
appellant has raised a material issue about the strength or weakness of the
HR Officer’s stated reason for the appellant’s nonselection, i.e., he was not on the
certificate of eligibles. IAF, Tab 2 at 5, 9, Tab 6 at 31. Thus, we find that the
appellant has nonfrivolously alleged that his prior Board appeals concerning his
July 2013 termination were a contributing factor in his nonselection. See, e.g.,
Dorney, 117 M.S.P.R. 480, ¶ 17.
¶32 In addition, the appellant alleged that the HR Officer knew about the
appellant’s OSC complaint concerning his July 2013 termination from his prior
Jesse Brown VA employment. PFR File, Tab 7 at 31-33; IAF, Tab 12 at 37. As
explained above, the appellant has raised a material issue about the strength or
weakness of the HR Officer’s stated reason for the appellant’s nonselection, i.e.,
he was not on the certificate of eligibles. IAF, Tab 2 at 5, 9, Tab 6 at 31. Thus,
we find that the appellant has nonfrivolously alleged that his prior OSC complaint
concerning his July 2013 termination was a contributing factor in his
nonselection. See, e.g., Dorney, 117 M.S.P.R. 480, ¶ 17.
¶33 As to the appellant’s November 2017 OSC complaint, the complaint was
filed approximately 7 months before the May 2018 nonselection, and therefore
the timing component of the knowledge/timing test is satisfied. See Salerno,
123 M.S.P.R. 230, ¶ 14. And, as noted above, the appellant alleged that the HR
Officer had knowledge of the complaint and influenced the selecting official by
effectively telling him not to hire the appellant. IAF, Tab 2 at 5, Tab 6 at 24, Tab
13 at 20-21; see Bradley, 123 M.S.P.R. 547, ¶ 15. Accordingly, we find that the
appellant has made a nonfrivolous allegation that the November 2017 OSC
complaint was a contributing factor in the agency’s decision not to select him for
the GEMS Manager position.
¶34 Accordingly, because we find that the appellant has exhausted his
administrative remedies before OSC and has nonfrivolously alleged that he made
protected whistleblowing disclosures and engaged in protected activities that
were a contributing factor in his nonselection for the GEMS Manager position , we
21
remand this IRA appeal for the appellant’s requested hearing and a decision on
the merits of his claim. 17 Specifically, on remand, the administrative judge shall
adjudicate the appellant’s claim that his nonselection constituted reprisal for the
following: (1) disclosures of safety and health hazards that he made to agency
officials during his prior Hines VA employment in 2015-2016; (2) disclosures
about asbestos and veterans’ preference violations that he made to the Hines VA
Director in an October 2017 meeting; (3) a prior OSC complaint and two Board
appeals he filed concerning his July 2013 termination from his prior Jesse Brown
VA employment; (4) a June 2016 OIG complaint he filed concerning safety issues
at the Hines VA; (5) a November 2017 OSC complaint and a prior IRA appeal he
filed concerning his nonselections in 2016-2017; and (6) a USERRA complaint he
filed with DOL that was referred to OSC for review. 18
17
On remand, the administrative judge should consider whether the appellant’s
disclosures under 5 U.S.C. § 2302(b)(8) were made during the normal course of his
duties. Section 101 of the WPEA provided, in part, that a disclosure “made during the
normal course of duties of an employee,” and otherwise covered by 5 U.S.C. § 2302(b)
(8), is protected if the agency “took, failed to take, or threatened to take or fail to take a
personnel action with respect to that employee in reprisal for the disclosure.” This
provision was initially codified at 5 U.S.C. § 2302(f)(2). On October 26, 2017,
Congress enacted the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017, Pub.
L. No. 115-73, 131 Stat. 1235, which recodified the provision at 5 U.S.C. § 2302(e)(2).
Section 1097 of the 2018 NDAA amended and recodified the provision at 5 U.S.C. §
2302(f)(2). The Board has held that section 2302(f)(2) imposed an “extra proof
requirement” for these types of disclosures such that an appellant to whom the provision
applies must prove by preponderant evidence that the agency took a personnel action
because of the disclosure and did so with an improper, retaliatory motive. See Salazar v.
Department of Veterans Affairs, 2022 MSPB 42, ¶ 13. Moreover, this section of the
statute expressly applies only to an employee whose principal job function is to
regularly investigate and disclose wrongdoing. Id., ¶ 15. The administrative judge
should consider what effect, if any, section 2302(f)(2) has on this appeal .
18
If the appellant cannot prove on remand that he made a particular protected disclosure
or engaged in a particular protected activity, the administrative judge should consider
the appellant’s alternative exhausted claim that his nonselection constituted retaliation
based on the agency’s perception that he made a protected disclosure or engaged in a
protected activity. See King, 116 M.S.P.R. 689, ¶ 6 (explaining that an individual who
is perceived as a whistleblower still is entitled to the protections of the Whistleblower
Protection Act, even if he has not made protected disclosures).
22
The appellant’s remaining evidence and argument on review do not warrant a
different outcome.
¶35 On review, the appellant asserts that the agency violated his constitutional
due process rights, committed harmful error and other prohibited personnel
practices, discriminated against him, and committed violations of his veterans’
preference rights. PFR File, Tab 2 at 15-17, 19-23, Tab 7 at 6-7. The Board does
not have jurisdiction over these claims in the context of an IRA appeal. See, e.g.,
Benton-Flores v. Department of Defense, 121 M.S.P.R. 428, ¶ 6 n.1 (2014);
Smets v. Department of the Navy, 117 M.S.P.R. 164, ¶ 14 (2011), aff’d,
498 F. App’x 1 (Fed. Cir. 2012); McCarthy v. International Boundary and Water
Commission, 116 M.S.P.R. 594, ¶ 27 (2011), aff’d, 497 F. App’x 4 (Fed. Cir.
2012). On remand, the administrative judge should consider such assertions only
to the extent they are relevant or material to the appellant’s reprisal claims. See
Marren v. Department of Justice, 51 M.S.P.R. 632, 638-39 (1991), aff’d, 980 F.2d
745 (Fed. Cir. 1992) (Table), and modified on other grounds by Robinson
v. U.S. Postal Service, 63 M.S.P.R. 307, 323 n.13 (1994).
¶36 In addition, we decline to address the appellant’s allegations pertaining to
his other Board appeals or matters that are otherwise outside the scope of this
IRA appeal. 19 PFR File, Tab 7 at 9, 34-40.
¶37 Finally, to the extent the appellant argues that the administrative judge was
biased because she unfairly closed the case, PFR File, Tab 7 at 16, we find that
19
We find that the administrative judge correctly denied the appellant’s stay request
because, although the appellant has satisfied the nonfrivolous allegation standard at this
jurisdictional stage, he has not yet provided evidence or argument showing a substantial
likelihood that he will prevail on the merits. Hendy v. Department of Veterans Affairs,
MSPB Docket No. CH-1221-19-0217-S-1, Stay File (S-1 File), Tab 3; PFR File, Tab 4
at 9; see Mogyorossy v. Department of the Air Force, 96 M.S.P.R. 652, ¶ 25 (2004)
(finding that the administrative judge correctly denied the appellant’s stay request). We
address the appellant’s argument on this issue because the administrative judge denied
his request for an interlocutory appeal of the stay decision. S-1 File, Tab 16; see
Mogyorossy 96 M.S.P.R. 652, ¶ 24 (addressing the appellant’s arguments regarding his
entitlement to a stay in an IRA appeal when the administrative judge denied his request
for a stay and his request for an interlocutory appeal of that decision).
23
this is an insufficient basis to rebut the presumption of honesty and integrity that
accompanies an administrative judge, see Bieber v. Department of the Army,
287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States,
510 U.S. 540, 555 (1994) for the proposition that an administrative judge’s
conduct during the course of a Board proceeding warrants a new adjudication
only if her comments or actions evidence “a deep-seated favoritism or antagonism
that would make fair judgment impossible.”). In sum, we have considered the
appellant’s remaining evidence and argument on review but find that they do not
warrant a different outcome in this appeal.
ORDER
¶38 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.