Opinion

Lynette Tillman-Johnson v. Department of Housing and Urban Development

Court: Merit Systems Protection Board
Filed: Jun 14, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 17.8%

considering under the second Carr factor whether there was a professional motive to retaliate

How later courts described this case

considering under the second Carr factor whether there was a professional motive to retaliate
finding that, by using the phrase “law, rule, or regulation” to describe protected disclosures, while using the word “law” to describe excepted disclosures, Congress intended to exclude disclosures that violated rules or regulations from excepted disclosures
holding that equitable tolling may be invoked when a party “has actively pursued his judicial remedies by filing a defective pleading during the statutory period”
holding that non-jurisdictional filing deadlines are presumptively subject to equitable tolling

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LYNETTE TILLMAN-JOHNSON, DOCKET NUMBER

Appellant, DA-1221-22-0388-W-1

DEPARTMENT OF HOUSING AND DATE: June 14, 2024

URBAN DEVELOPMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Andrew B. Henson , Esquire, Decatur, Georgia, for the appellant.

Marcus R. Patton , Esquire, Anju V. Mathew , Esquire, Sakeena M. Adams ,

Esquire, and Mary C. Merchant , Esquire, Fort Worth, Texas, for the

agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner recused himself and

did not participate in the adjudication of this appeal.

FINAL ORDER

¶1 The agency has filed a petition for review of the initial decision, which

granted corrective action in this individual right of action (IRA) appeal.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

Generally, we grant petitions 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 agency has not established any basis under section

1201.115 for granting the petition for review. Therefore, we DENY the petition

for review and AFFIRM the initial decision, which is now the Board’s final

decision. 5 C.F.R. § 1201.113(b).

BACKGROUND

¶2 On September 4, 2018, the agency appointed the appellant to the position of

GS-13 Senior Account Executive (SAE), subject to a 1-year initial probationary

period. Initial Appeal File (IAF), Tab 1 at 7. The appellant was responsible for

overseeing the performance of a portfolio of multifamily housing properties under

the agency’s purview. IAF, Tab 8 at 52, Tab 22 at 25. As a part of her job duties,

she was required to monitor the properties assigned to her portfolio for changing

financial circumstances, including by reviewing and approving changes to lease

requests, loan terms or modifications, changes in property management, and other

project-related requests. IAF, Tab 22 at 26. As an SAE, the appellant served as

the primary point of contact with owner management agents, tenants, and Federal,

state, and local governments for the projects assigned to her. Id. As such, she

was tasked with “negotiat[ing] formal agreements on behalf of” the agency, and

with “insuring [sic] that all executed agreements are monitored in accordance

with established policies and procedures.” Id.

¶3 On August 4, 2022, the appellant filed an IRA appeal, claiming that the

agency reassigned her, terminated her employment, and took several other

personnel actions against her in retaliation for protected whistleblowing. IAF,

Tabs 1, 5. She waived her right to a hearing. IAF, Tab 17. After the close of the

record, the administrative judge issued an initial decision granting the appellant’s

request for corrective action with respect to both the reassignment and the

termination. IAF, Tab 31, Initial Decision (ID) at 1, 30. The agency has filed a

petition for review, and the appellant has filed a response. Petition for Review

(PFR) File, Tabs 1, 4.

DISCUSSION OF ARGUMENTS ON REVIEW

The appeal was timely.

¶4 Under 5 U.S.C. § 1214(a)(3)(A), an appellant may file an IRA appeal with

the Board once the Office of Special Counsel (OSC) closes its investigation into

her complaint and no more than 60 days have elapsed since notification of the

closure was provided to her. Under the Board’s regulations implementing that

statutory time limit, an IRA appeal must be filed no later than 65 days after the

date that OSC issues its closeout letter, or, if the letter is received more than

5 days after its issuance, within 60 days of the date of receipt. 5 C.F.R.

§ 1209.5(a)(1).

¶5 In this case, the appellant received OSC’s closeout letter on May 31, 2022—

the date it was issued, and so the filing deadline was August 4, 2022. IAF, Tab 3

at 3, Tab 8 at 46-47. The appellant filed her appeal on that date. IAF, Tab 1.

However, it appeared from the appellant’s initial appeal form that she was

appealing her probationary termination directly, and it was not until 5 days later

that the appellant clarified that she intended to file an IRA appeal. IAF, Tab 1,

Tab 2 at 3-5, Tab 3 at 3. Based on these facts, the agency argues that the

appellant filed her IRA appeal outside the statutory deadline and that the appeal

should be dismissed as untimely. PFR File, Tab 1 at 6-7.

¶6 We have considered the agency’s argument, but we disagree. The agency

has provided no precedent in support of its position on timeliness. There is no

support in the statute or regulations for the Board to construe the date on which

the appellant clarified the nature of her appeal as the date that she filed her

appeal. Furthermore, even if it could be argued that this pro se appellant’s initial

filing was defective, her filing of a timely but defective pleading would provide a

sufficient basis to toll the statutory deadline. 2 See Irwin v. Department of

Veterans Affairs, 498 U.S. 89, 96 (1990) (holding that equitable tolling may be

invoked when a party “has actively pursued his judicial remedies by filing a

defective pleading during the statutory period”).

The appellant proved her case in chief.

¶7 In the merits phase of an IRA appeal, the appellant must prove by

preponderant evidence that (1) she made a protected 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). Salerno v. Department of the

Interior, 123 M.S.P.R. 230, ¶ 5 (2016).

¶8 In this case, the administrative judge found that the appellant made five

disclosures that were protected on the basis that the appellant reasonably believed

that they concerned a violation of law, rule, or regulation: (1) on October 11,

2018, the appellant disclosed to her former first-line supervisor that the agency

had abandoned or failed to properly inspect and service certain properties; (2) on

The Board has never squarely decided the issue of whether the deadline at 5 U.S.C.

§ 1214(a)(3)(A) is subject to equitable tolling. However, we see no reason to doubt that

it is. See generally Boechler v. Commissioner of Internal Revenue , 596 U.S. 199, 209

(2022) (holding that non-jurisdictional filing deadlines are presumptively subject to

equitable tolling).

October 12, 2018, she followed up by making the same disclosure to her third -line

supervisor; (3) on October 15, 2018, she reported to her first-line supervisor that

an agency official was retaliating against her for protected whistleblowing by

instructing other employees not to assist her with her portfolio; (4) on

December 14, 2018, she reported to her first-line supervisor that the agency failed

to ensure that property inspections were being conducted and that repairs were

being documented; and (5) on December 11 and 19, 2018, she reported to her

first-line supervisor that the agency failed to ensure that mandatory contract terms

were being included in management agreements. ID at 8-19. On petition for

review, the agency contests the administrative judge’s findings on these

disclosures, except for Disclosure 3. For the reasons explained in the initial

decision, we agree with the administrative judge that the appellant made

Disclosure 3 and that her disclosure was protected. ID at 17.

Disclosures 1 and 2

¶9 Regarding Disclosures 1 and 2, the agency disputes the administrative

judge’s findings about the content of these disclosures, arguing that they are not

supported by the record. PFR File, Tab 1 at 7-8. For the first time on review, the

agency has submitted an October 11, 2018 email that it postulates is Disclosure 1,

and argues that this email contains no allegation of failure to service properties,

property abandonment, missing inspections, or exigent health and safety issues.

Id. at 7 n.21, 13-15.

¶10 However, even considering the agency’s late-filed evidence, we find that it

does not warrant a different outcome in this appeal for two reasons. First, the

administrative judge’s findings about the content of these disclosures were not

based on this one email alone, but on “multiple reports” to the appellant’s

supervisors that the agency was failing to ensure proper servicing of portfolios,

including on October 11 and 12, 2018, when she indicated that the properties

“had been abandoned.” ID at 8. The administrative judge noted that the

appellant disclosed the content of Disclosures 1 and 2 by providing evidence that

the property files had not been updated prior to the properties being transferred to

her portfolio. ID at 8-9. The administrative judge also credited the appellant’s

deposition testimony, in which the appellant stated that she reported the lack of

servicing issues to her supervisors, over the declaration of one of those

supervisors who “only generally stat[ed]” that she did not recall the appellant

alleging that the agency was violating any laws, rules, or regulations. The

administrative judge observed that the supervisors did not specifically deny that

the appellant reported that the agency was failing to service the properties. ID

at 9-10. We therefore cannot agree with the agency’s suggestion that the

October 11, 2018 email was all there was to Disclosures 1 and 2.

¶11 Second, even if the Board restricted its examination to the email itself,

there would be sufficient evidence to support the administrative judge’s findings.

Although the email does not explicitly reference property abandonment, missing

inspections, or any exigent health and safety items, it identifies the last date that

inspections were completed for each of the three identified properties, notes that

each of the properties were lacking action plans, and identifies that each of the

properties had been in the same condition for the past 3 months. PFR File, Tab 1

at 13-15. Contextually understood, this email supports the administrative judge’s

finding that the appellant could have reasonably believed that, by identifying

these repeated failures to properly service properties in her portfolio, she was

disclosing that the properties had been “abandoned,” and that this inaction

constituted a violation of agency rules or regulations governing the proper

servicing of the properties. ID at 9-10.

¶12 In finding that Disclosures 1 and 2 met the “reasonable belief” standard, the

administrative judge considered an internal report of investigation (ROI), which

stated that numerous properties in the appellant’s portfolio had not been inspected

as scheduled, and health and safety remediation had not been properly

documented, in violation of 24 C.F.R. § 200.857(b)(1) and (c)(2). 3 ID at 10-11;

IAF, Tab 8 at 49-67. The agency argues that, because the appellant failed to

specifically identify many of the properties discussed in the ROI, it was

“improper for the [administrative judge] to assume that the ROI was based on

information [that the appellant] had available to her at the time of her

disclosures.” PFR File, Tab 1 at 8. However, t he ROI was produced at OSC’s

direction as a direct result of the appellant’s whistleblowing complaint, and the

scope of the agency’s investigation was specifically limited to the properties in

the appellant’s portfolio. IAF, Tab 8 at 44-45, 51, 54. Additionally, each of the

three properties that the appellant identified in her October 11, 2018 email was

referenced in the ROI. PFR File, Tab 1 at 13-15; IAF, Tab 8 at 60. Finally, the

appellant also provided OSC with a contemporaneously prepared spreadsheet of

her correspondence with agency managers concerning the inadequate servicing of

her properties, including Disclosures 1 and 2. IAF, Tab 8 at 23, Tab 22 at 5-6.

Consequently, it can be reasonably inferred that the findings in the ROI were

based, at least in part, on information that the appellant had about her properties

when she originally made her disclosures. ID at 11. In any event, it is immaterial

whether the specific properties that the ROI identified as deficient were the same

properties that the appellant identified in Disclosures 1 and 2. As the

administrative judge correctly noted, the appellant was only required to establish

that she reasonably believed that her disclosures evidenced one of the categories

of wrongdoing identified in 5 U.S.C. § 2302(b)(8). PFR File, Tab 4 at 5-6; ID

at 11-12.

¶13 The agency next argues that the appellant did not have a reasonable belief

that it was violating 24 C.F.R. § 200.857(b)(1) by not conducting monthly

inspections because the regulation does not require monthly inspections. PFR

File, Tab 1 at 10. However, even if the appellant was mistaken about how

After the initial decision was issued, 24 C.F.R. § 200.857 was removed and reserved,

effective October 1, 2023. See 88 Fed. Reg. 30442, 30498 (May 11, 2023).

frequently inspections were required, as explained in the ROI, she was still

correct that the agency was not conducting inspections frequently enough. The

agency also argues that the appellant did not have a reasonable belief that it had

violated 24 C.F.R. § 200.857(c)(2) because property owners, and not the agency,

are required to make health and safety repairs. PFR File, Tab 1 at 10. However,

it is undisputed that the agency failed to hold property owners to the required

remediation timelines for a significant number of the properties in the appellant’s

portfolio. ID at 10-11; IAF, Tab 8 at 54-55. Further, even if the purported

wrongdoing primarily involved non-agency officials, the Board has held that a

disclosure of wrongdoing committed by a non -Federal Government entity may

nevertheless be protected when the Government’s interests and good name are

implicated in the alleged wrongdoing, and the employee shows that she

reasonably believed that the information she disclosed evidenced that

wrongdoing. See Covington v. Department of the Interior, 2023 MSPB 5, ¶ 16;

Arauz v. Department of Justice, 89 M.S.P.R. 529, ¶¶ 6-7 (2001). Regardless of

which party was responsible for conducting the actual repair work, we find that

the Government’s interests and good name are implicated in the appellant’s

disclosures. In sum, we agree with the administrative judge that the appellant

reasonably believed that she was disclosing violations of agency regulations in

connection with Disclosures 1 and 2. ID at 8-12.

Disclosure 4

¶14 Regarding Disclosure 4, the administrative judge credited the appellant’s

deposition testimony that, on December 14, 2018, she disclosed that the agency

had failed to adequately service her properties prior to them being assigned to

her, including by failing to complete inspections and ensure that repairs were

being properly documented. ID at 9 (citing IAF, Tab 23 at 32-33, 54-55). The

agency argues that there is insufficient evidence to prove that the appellant’s

December 14, 2018 disclosure was protected. PFR File, Tab 1 at 8. Specifically,

the agency argues that there is no evidence that the appellant disclosed property

inspection and repair documentation failures, and that the administrative judge

improperly relied on the ROI in finding that she did. Id. We disagree.

¶15 Because the administrative judge’s findings are based on the written record,

the Board is free to reweigh the evidence and make its own findings without

deferring to her credibility findings. See Haebe v. Department of Justice,

288 F.3d 1288, 1302 (Fed. Cir. 2002). We have reviewed the record and find that

the administrative judge properly weighed the evidence, including by considering

the consistency of the appellant’s statements with other evidence in the record,

such as the ROI and the appellant’s prior emails detailing the concerns underlying

Disclosure 4. ID at 8-12; see Hillen v. Department of the Army, 35 M.S.P.R. 453,

458 (1987) (setting forth various factors relevant to credibility determinations);

see also Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 87 (1981)

(explaining the factors that affect the weight of hearsay evidence). In her

deposition, the appellant specifically stated that she informed her first-line

supervisor, by email and in person, that the properties had problems with

inspection and repair documentation. IAF, Tab 23 at 54-55. The appellant

further testified that she had regular meetings with her supervisor during which

she discussed numerous issues with the properties in her portfolio, and that she

discussed the inspection and repair issues during a December 14, 2018 meeting

with her first-line supervisor. IAF, Tab 23 at 55.

¶16 Regarding the agency’s argument that the administrative judge improperly

relied on the findings in the ROI, the administrative judge considered the ROI as

evidence that the appellant’s disclosures concerned a violation of regulation—not

as evidence that she made the disclosures as alleged. ID at 10-11. It was

appropriate for the administrative judge to cite the findings of the ROI, as it gave

context to the appellant’s disclosures by clarifying the proper process and

timeline for completing inspections and repairs, and the ROI acknowledged that

the timelines for both requirements regularly were not met for properties in the

appellant’s portfolio. ID at 10-11; IAF, Tab 8 at 53-55. For these reasons, we

agree with the administrative judge that the appellant made Disclosure 4 as

alleged, and that the disclosure concerned violations of agency regulation.

Disclosure 5

¶17 Regarding Disclosure 5, the appellant informed her first-line supervisor on

December 11 and 19, 2018, that certain management agreements were missing

clauses required by the agency’s handbook. ID at 11-12; IAF, Tab 22 at 58-59.

The administrative judge found that the appellant reasonably believed that this

disclosure evidenced a violation of law, rule, or regulation. ID at 12. On review,

the agency argues that its handbook does not amount to a “law, rule, or

regulation” within the meaning of 5 U.S.C. § 2302(b)(8). PFR File, Tab 1

at 10-11. However, to construe the appellant’s disclosures of purported handbook

violations as protected only if the handbook has the force of law—i.e., a statute or

substantive regulation, as the agency suggests—would render the term “rule,” as

provided under section 2302(b)(8)(A)(i), superfluous. See Department of

Homeland Security v. MacLean, 135 S. Ct. 913, 918-21 (2015) (finding that, by

using the phrase “law, rule, or regulation” to describe protected disclosures, while

using the word “law” to describe excepted disclosures, Congress intended to

exclude disclosures that violated rules or regulations from excepted disclosures).

Instead, the Board has defined a rule as “an established and authoritative standard

or principle; a general norm mandating or guiding conduct or action in a given

type of situation.” Rusin v. Department of the Treasury, 92 M.S.P.R. 298, ¶ 16

(2002) (quoting Black’s Law Dictionary 1330 (7th ed. 1999)). For the reasons

explained in the initial decision, we agree with the administrative judge that the

agency’s handbook amounts to a “rule” for purposes of 5 C.F.R. § 2302(b)(8). ID

at 12 n.5; IAF, Tab 23 at 116

¶18 The agency also argues that nothing in the appellant’s December 11, 2018

email evidenced a violation of its handbook. PFR File, Tab 1 at 9. We disagree.

The appellant’s email specifically stated that one of her management contracts

was missing required clauses, and she proposed to notify the agent. IAF, Tab 22

at 58-59. She also specifically cited a provision of the handbook that required

such language in the agreements. Id. The appellant’s first-line supervisor

disregarded her concerns and directed her not to send the email. Id. at 58. As the

administrative judge noted, the ROI acknowledged that management agreements

are required to reference required contract clauses upon renewal or when

appropriate, citing the exact same handbook provision as the appellant referenced

to her supervisor. IAF, Tab 8 at 63 & n.46. Properly and contextually

understood, the appellant was attempting to disclose to her supervisor that the

agreement did not have the required contract language and that the absence of that

language was contrary to the requirements of the handbook. ID at 12.

¶19 The agency further argues that the ROI determined that there were “no

compliance issues regarding expired management contracts in this instance,”

noting that, for this property, the management agreement allowed for automatic

renewal and had not yet expired, and thus, the agency did not violate the

handbook provisions by not requiring the owner to amend the management

agreement. PFR File, Tab 1 at 9; IAF, Tab 8 at 63. This is an oversimplification

of what the ROI said about this matter. Although the ROI determined that there

were no compliance issues regarding “expired management contracts,” the ROI

also addressed the appellant’s concern in Disclosure 5 that the existing

management agreement failed to include required termination rights provisions.

IAF, Tab 8 at 62 (“According to Claimant, MFHSW Branch Chief Managers

failed to adhere to this requirement by not addressing expired or missing

management certifications and by not requiring that management agreements

include required contract clauses related to fees and termination rights .”)

(emphasis added). Although the ROI suggests that the failure to include the

required language concerning termination rights did not result in “loss to HUD”

in this instance, the ROI does note that best practices would require the agency to

reference required contract clauses in management agreements “upon contract

renewal or when appropriate,” which would “strengthen Owner’s ability to

terminate the management agent agreement at will or at the direct of HUD.” Id.

at 63. Thus, the ROI supports the appellant’s concerns in Disclosure 5 that the

agency violated its rules or regulations by failing to include the termination

clauses.

¶20 In any event, even if the absence of the required termination clause was not

actually in violation of the agency handbook, Disclosure 5 would still be

protected. An individual making a disclosure is protected from retaliation for

whistleblowing based on her reasonable belief that her disclosure evidenced one

or more of the categories of wrongdoing listed in 5 U.S.C. § 2302(b)(8), even

when her belief is mistaken. Mithen v. Department of Veterans Affairs,

122 M.S.P.R. 489, ¶ 24 (2015), aff’d, 652 F. App’x 971 (Fed. Cir. 2016). The

test for determining whether an individual’s belief is reasonable 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 of the

agency evidence the wrongdoing disclosed. Lachance v. White, 174 F.3d 1378,

1381 (Fed. Cir. 1999). We agree with the administrative judge that the appellant

reasonably believed that Disclosure 5 evidenced a violation of an agency rule or

regulation, and whether the ROI confirmed that belief is ultimately immaterial to

this finding. ID at 11.

¶21 Finally, the agency argues that, even if some management agreements

failed to comply with the requirements set forth in the agency handbook, the

owners and managers of the subject properties were the noncompliant parties, not

the agency, and the Board has held that disclosures of wrongdoing by private,

nongovernmental entities do not constitute protected disclosures for the purposes

of 5 U.S.C. § 2302(b)(8). PFR File, Tab 1 at 9-10. We disagree because the

substance of Disclosure 5 was that the agency was violating its own rules and

regulations by failing to ensure that entities it oversaw included required contract

terms in their management agreements—not that the management agents and

owners were themselves violating a law, rule, or regulation. IAF, Tab 20 at 2-3.

¶22 Further, given the oversight functions that the agency exercised over the

management agents and owners, the agency’s failure to enforce compliance with

the regulatory requirements that governed the relationship between the agency

and the management agents and owners could implicate the Government’s

interests and good name. See Arauz, 89 M.S.P.R. 529, ¶ 7 (finding that the

appellant’s disclosure regarding alleged wrongdoing by a private organization

was protected when the agency was in a position to influence or exercise

oversight over the organization’s performance of the challenged functions, such

that the Government’s “interests and good name” were implicated in the

wrongdoing). Accordingly, we conclude that even if Disclosure 5 evidenced only

wrongdoing by nongovernmental parties, the appellant’s disclosure was

nevertheless protected because it implicated the Government’s interests and good

name.

The agency did not prove its affirmative defense.

¶23 If the appellant proves that her protected disclosure or activity was a

contributing factor in a personnel action taken against her, the agency is given an

opportunity to prove, by clear and convincing evidence, that it would have taken

the same personnel action in the absence of the protected disclosure or activity. 4

Soto v. Department of Veterans Affairs, 2022 MSPB 6, ¶ 6; see 5 U.S.C.

§ 1221(e)(1)-(2). In determining whether an agency has met this burden, the

Board will consider all of the relevant factors, including the following: (1) the

strength of the agency’s evidence in support of its action; (2) the existence 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

The agency does not contest the administrative judge findings on contributing factor,

and for the reasons explained in the initial decision, we agree with the administrative

judge that the appellant proved that part of her case. ID at 19-23.

actions against employees who are not whistleblowers but who are otherwise

similarly situated. Carr v. Social Security Administration, 185 F.3d 1318, 1323

(Fed. Cir. 1999); Soto, 2022 MSPB 6, ¶ 11. The Board does not view these

factors as discrete elements, each of which the agency must prove by clear and

convincing evidence, but rather, the Board will weigh the factors together to

determine whether the evidence is clear and convincing as a whole. Karnes v.

Department of Justice, 2023 MSPB 12, ¶ 24. Additionally, the Board will

consider all the evidence presented, including evidence that detracts from the

conclusion that the agency met its burden. Whitmore v. Department of Labor,

680 F.3d 1353, 1368 (Fed. Cir. 2012); Soto, 2022 MSPB 6, ¶ 11.

¶24 In her initial decision, the administrative judge found that the agency did

not demonstrate strong reasons for taking the personnel actions, the officials

involved had considerable retaliatory motive, and there was no evidence

concerning the agency’s treatment of similarly situated non-whistleblowers. ID

at 24-25. Considering the evidence as a whole, she found that the agency did not

prove by clear and convincing evidence that it would have reassigned and

terminated the appellant even absent her protected disclosures. Id. On review,

the agency argues that the administrative judge failed to consider evidence of two

other employees who also reported violations of the agency’s handbook to the

appellant’s first-line supervisor but who were not disciplined. PFR File, Tab 1

at 11. It argues that the first-line supervisor’s failure to take disciplinary action

against these employees despite their expressed disagreement demonstrates that it

was not the appellant’s whistleblowing activity that motivated the first-line

supervisor to take the contested personnel actions. Id.

¶25 The agency is correct that evidence regarding similarly situated

whistleblowers may be relevant to the second Carr factor. See Siler v.

Environmental Protection Agency, 908 F.3d 1291, 1299 (Fed. Cir. 2018).

Nevertheless, we find no reason to disturb the administrative judge’s analysis of

the second Carr factor on this basis. In finding that the second Carr factor

weighed in the appellant’s favor with respect to both personnel actions, the

administrative judge observed that the appellant’s disclosures about the agency’s

abandonment of properties revealed “real and significant problems” about how

properties within the agency’s portfolio were being managed, as later validated by

the ROI. ID at 24-25. The administrative judge reasoned that the appellant’s

detailing of the agency’s failures would have reflected poorly on her first- and

third-level supervisors, both of whom were aware of the appellant’s disclosures

but did not take action to remedy the issues she identified, and thus they would

have been motivated to retaliate. ID at 24-25, 29; see Robinson v. Department of

Veterans Affairs, 923 F.3d 1004, 1019 (Fed. Cir. 2019) (considering under the

second Carr factor whether there was a professional motive to retaliate); see also

Wilson v. Department of Veterans Affairs, 2022 MSPB 7, ¶ 65 (finding that

officials responsible for the agency’s performance overall may well be motivated

to retaliate even if they are not directly implicated by the disclosures, as the

criticism reflects on them in their capacities as managers and employees); Smith

v. Department of the Army, 2022 MSPB 4, ¶¶ 28-29. By contrast, the parties

stipulated only that the two employes at issue “expressed their disagreement”

with the appellant’s first-line supervisor that the agency was consistently

following the handbook. IAF, Tab 23 at 8. There is no additional information in

the record concerning the nature of this “disagreement” or whether the two

employees’ expression of disagreement rose to the level of the appellant’s

whistleblowing activity. Accordingly, we conclude that the administrative judge

properly weighed the Carr factors in finding that the agency failed to meet its

burden. For the foregoing reasons, we deny the agency’s petition for review and

affirm the initial decision.

ORDER

¶26 We ORDER the agency to cancel the appellant’s termination and to restore

the appellant effective March 14, 2019. 5 See Kerr v. National Endowment for the

Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no

later than 20 days after the date of this decision.

¶27 We also ORDER the agency to pay the appellant the correct amount of back

pay, interest on back pay, and other benefits under the Office of Personnel

Management’s regulations, no later than 60 calendar days after the date of this

decision. We ORDER the appellant to cooperate in good faith in the agency’s

efforts to calculate the amount of back pay, interest, and benefits due, and to

provide all necessary information the agency requests to help it carry out the

Board’s Order. If there is a dispute about the amount of back pay, interest due,

and/or other benefits, we ORDER the agency to pay the appellant the undisputed

amount no later than 60 calendar days after the date of this decision.

¶28 We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and of the actions it has

taken to carry out the Board’s Order. The appellant, if not notified, should ask

the agency about its progress. See 5 C.F.R. § 1201.181(b).

¶29 No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision on this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the dates and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

The administrative judge found, and the parties do not dispute, that there is no

corrective action available to correct the appellant’s reassignment. ID at 30.

Nevertheless, the circumstances of this personnel action may be relevant to assessing

damages.

¶30 For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Defense Finance and

Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resulting from a Board decision

are attached. The agency is ORDERED to timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that payment can be

made within the 60-day period set forth above.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set forth at title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST CONSEQUENTIAL AND/OR

COMPENSATORY DAMAGES

You may be entitled to be paid by the agency for your consequential

damages, including medical costs incurred, travel expenses, and any other

reasonable and foreseeable consequential damages. To be paid, you must meet

the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may

be found at 5 C.F.R. §§ 1201.201, 1201.202 and 1201.204.

In addition, the Whistleblower Protection Enhancement Act of 2012

authorized the award of compensatory damages including interest, reasonable

expert witness fees, and costs, 5 U.S.C. § 1214(g)(2), which you may be entitled

to receive.

If you believe you are entitled to these damages, you must file a motion for

consequential damages and/or compensatory damages WITHIN 60 CALENDAR

DAYS OF THE DATE OF THIS DECISION. You must file your motion with the

office that issued the initial decision on your appeal.

NOTICE TO THE PARTIES

A copy of the decision will be referred to the Special Counsel “to

investigate and take appropriate action under [5 U.S.C.] section 1215,” based on

the determination that “there is reason to believe that a current employee may

have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8) or

section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(f)(3). Please note that

while any Special Counsel investigation related to this decision is pending, “no

disciplinary action shall be taken against any employee for any alleged prohibited

activity under investigation or for any related activity without the approval of the

Special Counsel.” 5 U.S.C. § 1214(f).

NOTICE OF APPEAL RIGHTS 6

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

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.

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:

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

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

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. 7 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).

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.

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