Kerri S Kuhlmann v. Department of Labor

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KERRI S. KUHLMANN, DOCKET NUMBER

Appellant, DC-1221-17-0437-R-1

v.

DEPARTMENT OF LABOR, DATE: June 20, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Kerri S. Kuhlmann , Arlington, Virginia, pro se.

Matthew Babington , Washington, D.C., 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 appellant filed a petition for review of the initial decision in the

underlying matter, Kuhlmann v. Department of Labor, MSPB Docket

No. DC-1221-17-0437-W-1, which denied her request for corrective action in this

individual right of action (IRA) appeal. On January 23, 2024, the Board issued

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

an order providing that the initial decision became the final decision of the Board

because Chairman Harris, then one of only two Board members in office, had

recused herself from consideration of the appeal. Kuhlmann v. Department of

Labor, MSPB Docket No. DC-1221-17-0437-W-1, Order (Jan. 23, 2024); see

5 C.F.R. § 1200.3(b). On March 26, 2024, Vice Chairman Limon reopened the

final decision pursuant to 5 U.S.C. § 7701(e)(1), to permit the Board, once a third

member had been confirmed, to issue a decision on the appellant’s petition for

review. Kuhlmann v. Department of Labor, MSPB Docket No. DC-1221-17-

0437-R-1, Reopening File, Tab 1. Member Kerner was sworn into his duties as a

Board member on June 3, 2024. Accordingly, we now consider the reopened

appeal. 2

¶2 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 petitioner has not established any basis under

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

petition for review. Except as expressly MODIFIED to clarify when a claimed

hostile work environment constitutes a cognizable personnel action in an IRA

2

Upon further consideration of the circumstances, as well as the expiration of pertinent

time frames contained in the Ethics Agreements she signed in connection with her

Chairman and Member nominations, Chairman Harris has revoked her prior recusal and

has fully participated in the disposition of this appeal.

3

appeal, as provided in Skarada v. Department of Veterans Affairs, 2022 MSPB

17, we AFFIRM the initial decision.

¶3 The following facts, as further detailed in the initial decision, are not

disputed. The appellant holds the GS-14 position of Pension Law Specialist in

the Employee Benefits Security Administration’s Office of Regulations and

Interpretations (ORI), Division of Coverage, Reporting, and Disclosure (DCRD),

and is domiciled in Washington, D.C. Initial Appeal File (IAF), Tab 59 at 5,

Tab 85, Initial Decision (ID) at 2. The DCRD Chief was her first-level

supervisor, and the ORI Director was a higher-level manager. ID at 2-3. The

majority of the instant IRA appeal involves the individuals who, starting in late

2011, occupied those positions.

¶4 In May 2016, after years of conflict with her supervisory chain and at least

one coworker, along with complaints about the same, the appellant filed a

whistleblower retaliation claim with the Office of Special Counsel (OSC). ID

at 14. OSC closed her complaint in February 2017, and this IRA appeal followed.

ID at 14; IAF, Tab 1. The administrative judge held a 7-day hearing before

denying the appellant’s request for corrective action.

¶5 The administrative judge found that the appellant presented nonfrivolous

allegations of 32 disclosures within the Board’s jurisdiction but only proved that

10 of those were protected. ID at 17-79, 88. Those protected disclosures were

Disclosures 2-4, 6, 15-18, 22, and 27. 3 ID at 88. She further found that the

appellant was subject to four relevant personnel actions—her Fiscal Year 2014

(FY 14) performance appraisal, the denial of several transfer requests, a

3

As the administrative judge explained, the appellant’s alleged disclosures are not

identified in a consistent manner throughout the record. They were initially identified

with a letter and number, then identified with numbers 1-45, after which the appellant

withdrew several and the administrative judge concluded that there were a total of 32

within the Board’s jurisdiction. ID at 16; see, e.g., IAF, Tab 57 at 11-46, Tab 74 at 3-7.

Accordingly, the administrative judge discussed the appellant’s disclosures using that

numbering—Disclosures 1-32. ID at 16-79. The appellant’s petition for review

followed that same formatting. Petition for Review File, Tab 5 at 12. For the sake of

consistency, we will as well.

4

significant change in working conditions, and a letter of reprimand. ID at 80-81,

83-86, 88. While the appellant alleged that she was subject to additional

personnel actions, such as a threat of counseling and a hostile work environment,

the administrative judge found that the appellant failed to prove that these matters

constituted personnel actions within the purview of the whistleblower statute. ID

at 81-83, 85-86.

¶6 For those disclosures and personnel actions that remained, the

administrative judge found that the appellant met her burden of proving the

contributing factor criterion based upon the knowledge/timing test. ID at 86-90.

Nevertheless, she found that the agency met its burden of proving that it would

have taken the same actions in the absence of the appellant’s protected

disclosures. ID at 90-97. The appellant has filed a petition for review. Petition

5

for Review (PFR) File, Tab 5. 4 The agency has filed a response, PFR File,

Tab 11, 5 and the appellant has replied, PFR File, Tab 16. 6

The administrative judge properly denied the appellant’s motion for sanctions and

her request for a subpoena.

Motion for sanctions

¶7 During discovery, the parties filed competing motions to compel pertaining

to specific discovery requests. IAF, Tabs 27-28, 31-33. The administrative judge

4

Prior to filing her petition, the appellant requested leave to exceed the applicable

30-page length limitation and submit a petition totaling 77 pages. PFR File, Tab 3. The

Clerk of the Board granted the request, in part, setting the length limitation of the

appellant’s petition at 60 pages. PFR File, Tab 4. After submitting a 58-page petition

for review, the appellant filed a motion for leave to file an additional pleading, to

request that the administrative judge be disqualified from further participation in this

appeal due to bias. PFR File, Tab 9. That request is denied. See Sabio v. Department

of Veterans Affairs, 124 M.S.P.R. 161, ¶¶ 11-13 (2017) (denying an appellant’s motions

to submit additional pleadings because, inter alia, she had already been afforded ample

opportunity to present her arguments on review).

5

After the agency’s response, but before the appellant’s reply, the appellant filed

another motion for leave to submit an additional pleading—this time to strike portions

of the hearing transcript attached to the agency’s response on the basis that it is

unofficial or otherwise fails to fully represent pertinent testimony, and to object to the

agency’s response on the basis that the agency used 10 point font for its footnotes and

exceeded the Board’s 7,500 word limitation. PFR File, Tab 12; see 5 C.F.R.

§ 1201.114(h) (requiring that pleadings on review use no less than 12 point typeface

and setting the length limitation for both petitions for review and responses to a petition

for review at the lesser of 30 pages or 7,500 words, absent a grant of leave to exceed

those limitations for exceptional circumstances). This motion is also denied. See

Sabio, 124 M.S.P.R. 161, ¶¶ 11-13. Regarding the selected portions of transcript

attached to the agency’s response, the official hearing transcript is included in the

record, in its entirety, and we will exclusively refer to it as needed. See Hearing

Transcript, Day 1-Day 7. Regarding the typeface and length of the agency’s response—

only 23 pages, but approximately 8,300 words—while technically noncompliant with

the Board’s regulations concerning the word count, we will not strike the pleading

under these circumstances, where the appellant was allowed to, and did submit, a

58-page petition for review. See PFR File, Tab 11 at 4-26.

6

In yet another motion for leave to submit an additional pleading, the appellant requests

permission to present arguments pertaining to decisions in other cases that have been

issued since her reply brief. PFR File, Tab 17. This included our nonprecedential

decisions in Hornsby v. Federal Housing Finance Agency, MSPB Docket No. DC-0752-

15-0576-I-2, Final Order (Apr. 28, 2022), and Addo v. Department of the Air Force,

MSPB Docket No. DC-0752-16-0427-I-1, Final Order (May 4, 2022), as well as the

6

issued one order, which granted in part each of those motions. IAF, Tab 34. The

parties later filed competing motions for sanctions, with each alleging that the

other had failed to comply with the administrative judge’s order. IAF, Tabs 41,

47, 49, 55-56, 64-65. The administrative judge denied both motions. IAF,

Tabs 50, 74 at 1-2.

¶8 The appellant’s motion for sanctions alleged that while the administrative

judge granted her motion to compel concerning Document Request Nos. 3 and 11,

and the agency provided more than 14,000 pages worth of responsive documents,

the agency’s response was incomplete. IAF, Tab 34 at 3-5, Tab 55 at 4-11. For

example, while Document Request No. 3 sought certain electronic

communications by or among more than a dozen officials over a period of about

5 years, the appellant asserted that the agency produced none from one of those

officials. IAF, Tab 55 at 6. The appellant also alleged that the agency produced

no communications dated after May 13, 2016, the end date identified in the

administrative judge’s original order, even though the administrative judge later

amended that order to set an end date of September 2016. Id.; see IAF, Tab 34

at 3-4, Tab 37 at 5, Tab 38 at 1.

¶9 The agency opposed the appellant’s motion for sanctions. IAF, Tab 64.

Among other things, the agency argued that sanctions were not warranted because

the appellant had requested them without first informing the agency of the

perceived deficiencies and providing an opportunity to make any necessary

corrections. Id. at 4. The administrative judge agreed. She concluded that

sanctions were not warranted because the agency worked diligently to respond to

Document Request Nos. 3 and 11, and the appellant should have worked with the

agency if she perceived any associated deficiencies. IAF, Tab 74 at 1-2. The

appellant requested reconsideration, but the administrative judge also denied that

precedential decisions in McGuffin v. Social Security Administration, 942 F.3d 1099

(Fed. Cir. 2019), and Sharpe v. Department of Justice, 916 F.3d 1376 (Fed. Cir. 2020).

This motion is similarly denied. We have considered each of the decisions cited but do

not find additional arguments about them warranted.

7

request. Hearing Transcript, Day 1 (HT1) at 4 (ruling by the administrative judge

on the record denying the reconsideration motion).

¶10 On review, the appellant has generally alleged that the administrative judge

erred in denying the motion for sanctions. PFR File, Tab 5 at 7-8. We disagree.

The imposition of sanctions is a matter within an administrative judge’s sound

discretion and, absent a showing that such discretion has been abused, the

administrative judge’s determination will not be found to constitute reversible

error. El v. Department of Commerce, 123 M.S.P.R. 76, ¶ 16 (2015), aff’d per

curiam, 663 F. App’x 921 (Fed. Cir. 2016). In this case, we find no such abuse of

discretion. We instead find the administrative judge’s reasoning for denying the

appellant’s request for sanctions persuasive. See 5 C.F.R. § 1201.71 (recognizing

an expectation that parties will start and complete discovery with a minimum of

Board intervention).

Subpoena request

¶11 As will be further discussed below, the appellant alleged that the DCRD

Chief committed a battery on her in February 2016. An associated report from

the Department of Homeland Security’s Federal Protective Service (FPS) is

included in the record. IAF, Tab 61 at 50-54. However, the appellant asked that

the administrative judge issue a subpoena for the hearing testimony of a particular

FPS agent. IAF, Tab 51 at 4-6. The administrative judge denied the request

because the witness testimony would have been duplicative of a document in the

record and further testimony was irrelevant. IAF, Tab 53 at 1.

¶12 On review, the appellant argues that this FPS agent was a material witness

and the administrative judge erred in disallowing him. PFR File, Tab 5 at 8.

According to the appellant, his testimony was material to the question of whether

the appellant had a reasonable belief that she disclosed wrongdoing in connection

with Disclosures 29-32, ones involving the alleged battery. Id. We are not

persuaded.

8

¶13 We find that the administrative judge did not abuse her discretion. See Lee

v. Environmental Protection Agency, 115 M.S.P.R. 533, ¶ 14 (2010) (analyzing an

administrative judge’s denial of a subpoena for a witness under an abuse of

discretion standard). No subpoena was necessary for this witness because he was

a Federal employee and, in any event, the appellant ultimately chose not to

request his testimony. IAF, Tab 51 at 4, Tab 68 at 56-62; see Lee, 115 M.S.P.R.

533, ¶ 14 (observing that subpoenas are not ordinarily required to obtain the

appearance of Federal employees as witnesses and finding, as to a non-Federal

employee witness, that no subpoena was necessary because the administrative

judge denied the appellant’s request to call him). Accordingly, we discern no

error in the administrative judge denying the request to subpoena the FPS agent.

The appellant has failed to present sufficiently sound reasons to overturn the

administrative judge’s credibility findings.

¶14 The appellant’s petition for review contains general arguments about the

administrative judge’s credibility findings. PFR File, Tab 5 at 8-12. We will

address these general credibility arguments now, though we will further discuss

credibility below, as needed, in concert with our discussions of the parties’

respective burdens.

¶15 To resolve credibility issues, an administrative judge must identify the

factual questions in dispute, summarize the evidence on each disputed question,

state which version he believes, and explain in detail why he found the chosen

version more credible. Hillen v. Department of the Army, 35 M.S.P.R. 453, 458

(1987). In Hillen, the Board articulated a list of several factors that may be

relevant, including a witness’s demeanor. Id. The U.S. Court of Appeals for the

Federal Circuit (Federal Circuit) has explained that the Board “is not free to

overturn an administrative judge’s demeanor-based credibility findings merely

because it disagrees with those findings.” Haebe v. Department of Justice,

288 F.3d 1288, 1299 (Fed. Cir. 2002). Instead, the Board may overturn such

determinations only when it has “sufficiently sound” reasons for doing so. Id.

9

at 1301. Additionally, the Federal Circuit has recognized that the Board should

give deference not only to an administrative judge’s credibility findings that

explicitly rely on witness demeanor, but also those that are “intertwined with

issues of credibility and an analysis of [a witness’s] demeanor at trial.” Purifoy

v. Department of Veterans Affairs, 838 F.3d 1367, 1373 (Fed. Cir. 2016).

¶16 In this case, the administrative judge made extensive credibility findings,

particularly ones concerning testimony of the appellant, the DCRD Chief, and the

ORI Director, and those credibility findings were partially based on witness

demeanor. E.g., ID at 18-20, 24, 27, 33. On review, the appellant argues that we

should not defer to these credibility findings because they were incomplete or

otherwise improper. PFR File, Tab 5 at 8-12. To illustrate her point, the

appellant provides several examples. Id. at 9-12. Although we have considered

each and discuss some below, we do not find any of these credibility arguments

persuasive.

¶17 In her first example of alleged improprieties surrounding the administrative

judge’s credibility findings, the appellant discusses her allegation that the DCRD

Chief committed a battery on the appellant during a meeting in February 2016.

Id. at 9. The administrative judge found that the appellant’s disclosure of this

incident was not protected because a reasonable person in her position could not

conclude that the DCRD Chief committed a battery. ID at 72-73. The appellant

argues that, because the DCRD Chief refused to provide any testimony about the

incident, 7 it was a gross abuse of discretion for the administrative judge to

conclude that the DCRD Chief’s contact with the appellant was a natural or

reflexive action that she may not have remembered. Id. (citing ID at 71-72). We

disagree.

7

The DCRD Chief refused to testify about the alleged battery, asserting her Fifth

Amendment right against self-incrimination. Hearing Transcript, Day 6 at 163-65, 170

(testimony of the DCRD Chief). As a result, the administrative judge made an adverse

inference that the DCRD Chief touched the appellant and the appellant did not consent

to the touching. ID at 71-72.

10

¶18 Notwithstanding the absence of direct testimony from the DCRD Chief, the

administrative judge properly relied on other witnesses’ testimony and

documentary evidence in making her findings. ID at 70-73. Most notably, the

agency’s investigative report and the FPS report both indicate that the DCRD

Chief denied touching the appellant at all, IAF, Tab 61 at 52, Tab 62 at 20-21,

while two third-party witnesses recalled the DCRD Chief lightly touching or

tapping the appellant on the shoulder to get her attention, without any force, as

part of a routine conversation, IAF, Tab 62 at 20; Hearing Transcript, Day 4

(HT4) at 30 (testimony of the appellant’s former co-worker). Accordingly, the

record reflects that the administrative judge considered the relevant evidence,

drew appropriate inferences, and made a reasoned conclusion concerning the

nature of the touching, which we will not disturb. ID at 70-74; see, e.g., Crosby

v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to

disturb the administrative judge’s findings when she considered the evidence as a

whole, drew appropriate inferences, and made reasoned conclusions); Broughton

v. Department of Health and Human Services, 33 M.S.P.R. 357, 359 (1987)

(same).

¶19 The appellant’s next example is unpersuasive for similar reasons. The

appellant argues that the administrative judge abused her discretion and inserted

herself as a fact witness by concluding that a mistake in one of the appellant’s

performance appraisals—rating her as meeting expectations in a category for

which she should have received no rating due to her limited work—was likely

inadvertent. PFR File, Tab 5 at 9 (referencing ID at 23). But again, the

administrative judge’s findings are based on other evidence, appropriate

inferences, and reasoned conclusions about the circumstances at hand. See, e.g.,

Crosby, 74 M.S.P.R. at 105-06.

¶20 Most of the appellant’s remaining examples involve the ORI Director and

the administrative judge’s determination, based in part on demeanor, that he

testified credibly. PFR File, Tab 5 at 10-11 (referencing ID at 20, 49). In one,

11

the appellant argues that when asked a particular yes-or-no question during the

hearing, the ORI Director provided a 6-minute answer that was neither concise

nor unequivocal. PFR File, Tab 5 at 11 (referencing Hearing Transcript, Day 2

(testimony of the ORI Director)). In another, the appellant argues that when

asked another yes-or-no question during the hearing, the ORI Director provided a

2-minute answer that was not straightforward. Id. These are not sufficiently

sound reasons for us to overturn the administrative judge’s credibility findings.

See Brough v. Department of Commerce, 119 M.S.P.R. 118, ¶ 6 (2013)

(identifying circumstances in which there are sufficiently sound reasons to

overturn an administrative judge’s demeanor-based credibility findings as

including when those findings are incomplete, inconsistent with the weight of the

evidence, and do not reflect the record as a whole).

The appellant failed to prove that Disclosures 1, 5, 7-14, 19-21, 23-26, and 28-32

were protected.

¶21 After an appellant establishes jurisdiction over her IRA appeal, she is

entitled to a hearing at which she must prove the following by preponderant

evidence: (1) she 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). 5 U.S.C. § 1221(e)(1); Salerno v. Department of the Interior,

123 M.S.P.R. 230, ¶ 5 (2016). If the appellant meets that burden, 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. 5 U.S.C. § 1221(e); Salerno, 123 M.S.P.R. 230, ¶ 5.

¶22 A protected disclosure is a disclosure of information that the appellant

reasonably believes evidences any violation of any 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. 5 U.S.C. § 2302(b)(8); Bradley v.

12

Department of Homeland Security, 123 M.S.P.R. 547, ¶ 7 (2016). The proper test

for determining whether an employee had a reasonable belief that her disclosures

were protected is whether a disinterested observer with knowledge of the

essential facts known to and readily ascertainable by the employee could

reasonably conclude that the disclosure evidenced one of the circumstances

described in 5 U.S.C. § 2302(b)(8). Bradley, 123 M.S.P.R. 547, ¶ 7.

¶23 In this case, the administrative judge examined 32 alleged disclosures and

found that the appellant met her burden of proof for Disclosures 2-4, 6, 15-18, 22,

and 27, but not Disclosures 1, 5, 7-14, 19-21, 23-26, and 28-32. ID at 17-79, 88.

On review, the appellant presents arguments about several of her alleged

disclosures, both ones the administrative judge found protected and ones as to

which the administrative judge found the appellant failed to meet her burden.

PFR File, Tab 5 at 12-38.

¶24 We first consider the disclosures that the administrative judge did not find

protected, i.e., Disclosures 1, 5, 7-14, 19-21, 23-26, and 28-32. Of those, the

appellant presents arguments about only Disclosures 1, 8, 10-14, 23-26, 28-32, so

this decision will be similarly focused. 8

Disclosure 1

¶25 In Disclosure 1, which reportedly occurred during conversations in both

August 2005 and October 2010, 9 the appellant asserted that the ORI Director

manipulated the hiring process to select a particular person over the appellant for

a vacancy in 2005. IAF, Tab 57 at 11-13. Although the appellant alleged that

8

The appellant’s petition for review contains no arguments about Disclosures 5, 7, 9, or

19, while specifically withdrawing Disclosures 20 and 21. PFR File, Tab 5 at 29.

9

In a prehearing summary, the administrative judge found that the appellant

nonfrivolously alleged that she made this disclosure in both 2005 and 2010, to differing

recipients, and exhausted the same with OSC. IAF, Tab 74 at 3-4. However, as the

appellant correctly noted, the administrative judge referenced only the October 2010

date in the initial decision. PFR File, Tab 5 at 13-14; ID at 17. Nevertheless, we find

this oversight immaterial. The differing dates and recipients have no bearing on the

appellant’s failure to prove that this disclosure was protected.

13

this disclosure revealed a violation of law or abuse of authority, the

administrative judge concluded that she failed to meet her burden of proof. ID

at 17-21. In short, the administrative judge found that the appellant did not have

a reasonable belief that she was making a protected disclosure because her

disclosure was based on pure speculation, unsupported by evidence. ID at 19-21.

¶26 On review, the appellant argues that the administrative judge improperly

required that she prove an actual violation of law or abuse of discretion, PFR

File, Tab 5 at 13, but the record reflects otherwise. The administrative judge

explicitly relied on the reasonable belief standard. ID at 21; see supra, ¶ 21. The

appellant also suggests we should overturn the administrative judge’s

determination that the ORI Director was more credible than the appellant

regarding their alleged discussions about the vacancy and the propriety of the

hiring process. PFR File, Tab 5 at 14-15; see ID at 19-20. In doing so, the

appellant argues that the administrative judge failed to mention all of the

evidence and Hillen factors that might be relevant in deciding which witness to

believe. PFR File, Tab 5 at 14-15. But an administrative judge’s failure to

mention all of the evidence of record does not mean that she did not consider it in

reaching her decision. Mithen v. Department of Veterans Affairs , 122 M.S.P.R.

489, ¶ 14 (2015), aff’d per curiam, 652 F. App’x 971 (Fed. Cir. 2016). Not

specifically discussing every evidentiary matter or credibility factor does not

mean that an administrative judge failed to consider them. Id. We discern no

basis for disturbing the administrative judge’s well-reasoned credibility findings

or her conclusion that Disclosure 1 is not protected.

Disclosure 8

¶27 In Disclosure 8, conversations and follow-up emails from November 2013,

the appellant disclosed various ways in which the DCRD Chief and the ORI

Director were treating her. IAF, Tab 57 at 21; see IAF, Tab 59 at 73-74. The

administrative judge summarized the disclosure as including allegations that the

DCRD Chief was micromanaging the appellant; the DCRD Chief was criticizing

14

her work and productivity in a way that the appellant found abusive and

intimidating; the ORI Director enabled the DCRD Chief’s behavior by ignoring

the appellant’s complaints and not allowing the appellant to transfer; and both the

DCRD Chief and the ORI Director were issuing punitively low performance

ratings while also covering up an altercation 10 between the appellant and a

coworker from the year before. ID at 30-31; see, e.g., IAF, Tab 59 at 73-74.

¶28 One of the categories of wrongdoing specified in section 2302(b)(8) is an

abuse of authority. See 5 U.S.C. § 2302(b)(8)(A)(ii). An abuse of authority

occurs when there is an arbitrary or capricious exercise of power by a Federal

official or employee that adversely affects the rights of any person or results in

personal gain or advantage to himself or preferred other persons. Pasley v.

Department of the Treasury, 109 M.S.P.R. 105, ¶ 18 (2008). There is no de

minimis standard for abuse of authority as a basis of a protected disclosure. Id.

Furthermore, the Board has recognized that harassment or intimidation of other

employees may constitute an abuse of authority. E.g., Ayers v. Department of the

Army, 123 M.S.P.R. 11, ¶ 14 (2015); Pasley, 109 M.S.P.R. 105, ¶ 18. A

supervisor’s use of influence to denigrate other staff members in an abusive

manner and to threaten the careers of staff members with whom he disagrees

constitutes abuse of authority. Pasley, 109 M.S.P.R. 105, ¶ 18.

¶29 After recognizing that harassment by a supervisor may constitute an abuse

of authority, the administrative judge considered the evidence of record and

concluded that the appellant failed to prove that Disclosure 8 was protected. ID

at 31-39. She acknowledged shortcomings in the DCRD Chief’s management

style, ID at 33-34, and the appellant’s subjective belief that she was the subject of

harassment, ID at 30-33. However, the administrative judge also recognized the

appellant’s role in the contentious relationship, as she approached even normal

supervisory instructions with suspicion and hostility. ID at 34-35. Ultimately,

the administrative judge found that a difficult working relationship was

10

This altercation is also the subject of Disclosure 4, which is discussed below.

15

exacerbated by the DCRD Chief’s style of supervision, but neither her behavior,

nor that of her supervisor—the ORI Director—constituted harassment or a hostile

work environment, i.e., an abuse of authority or other protected category of

wrongdoing. ID at 35-38. The administrative judge, therefore, concluded that the

appellant failed to prove that she reasonably believed Disclosure 8 was protected.

ID at 39.

¶30 The appellant’s arguments on review largely mischaracterize the

administrative judge’s analysis of Disclosure 8. For example, the appellant

asserts that the administrative judge mistakenly imposed a de minimis threshold

when considering whether Disclosure 8 revealed an abuse of authority. PFR File,

Tab 5 at 17. In fact, the initial decision repeatedly notes that there is no de

minimis threshold in the context of disclosures of an abuse of authority, and we

discern no analysis in the decision reflecting otherwise. See ID at 18, 25. The

appellant also asserts that the administrative judge improperly relied on a

“disinterested observer” standard rather than the standard of a disinterested

observer with knowledge of the essential facts known to the appellant. PFR File,

Tab 5 at 17. Again, the administrative judge repeatedly cited the appropriate

standard in determining whether the appellant had a reasonable belief about her

disclosures: a disinterested observer with knowledge of the essential facts known

to and readily ascertainable by the appellant. E.g., ID at 17, 21, 27. While she

used the shorthand “disinterested observer” at times, it is apparent that the

administrative judge applied the proper standard throughout.

¶31 The appellant’s other arguments concerning Disclosure 8 reflect

disagreement with the administrative judge’s credibility findings about the nature

of the appellant’s conduct and that of her chain of command. PFR File, Tab 5

at 18-20. We do not find her arguments persuasive. See, e.g., Mithen,

122 M.S.P.R. 489, ¶ 14; Crosby, 74 M.S.P.R. at 105-06.

16

Disclosure 10

¶32 In Disclosure 10, a February 2014 email, the appellant reportedly disclosed

that the DCRD Chief was preventing her from doing her job and the ORI Director

was refusing to correct the DCRD Chief’s behavior. IAF, Tab 57 at 23. The

actual email chain at issue shows that the DCRD Chief emailed the appellant

detailed instructions for some work assignments. IAF, Tab 27 at 141. The

appellant then forwarded that email to the ORI Director, suggesting the email

showed that the DCRD Chief was unnecessarily micromanaging her. Id. The

appellant commented that she did not understand why this “untenable situation”

was never addressed, and asked the ORI Director to do so or else she would seek

help elsewhere. Id.

¶33 The administrative judge found that this, Disclosure 10, was not protected.

ID at 41-44. Similar to her reasoning for Disclosure 8, she found that the

particular email at issue and others around the same period reflected the

appellant’s hypersensitivity to basic supervision, not harassment by her

supervisory chain or any other wrongdoing protected under section 2302(b)(8).

Id.; see IAF, Tab 27 at 140-44. On review, the appellant’s arguments follow

those discussed above, with Disclosure 8. According to the appellant, the

administrative judge improperly applied a de minimis standard when considering

whether Disclosure 10 revealed an abuse of discretion, PFR File, Tab 5 at 20-21,

yet we discern no error in the legal standards applied. The appellant also

attempts to further contextualize Disclosure 10, in support of an argument that

she was disclosing harassment that constituted an abuse of authority. Id.

at 21-22. But again, the appellant’s arguments amount to disagreement with the

administrative judge’s findings of fact and well-reasoned credibility analysis

regarding the interactions and working relationship between the appellant, the

DCRD Chief, and the ORI Director. That disagreement is unavailing.

17

Disclosures 11-12

¶34 In Disclosures 11-12, emails from March 2014, the appellant disclosed that

the DCRD Chief was harassing her, making damaging statements about her, and

interfering with her part-time detail assignment, while the ORI Director continued

to allow it. IAF, Tab 27 at 149, 153-54, Tab 59 at 80; see IAF, Tab 57 at 24. The

administrative judge found that these disclosures were not protected. ID at 44-48.

Generally speaking, she found that which the appellant characterized as harassing

behavior or improper interference with her detail assignment was actually

professional and appropriate behavior on the part of the DCRD Chief. Id.

¶35 On review, the appellant reasserts that she had a reasonable belief that she

was disclosing an abuse of authority. PFR File, Tab 5 at 22-24. She again argues

that the administrative judge viewed the disclosures and allegations of harassment

out of context, while also erroneously applying a de minimis standard. Id.

at 23-24. Once more, we disagree. Although the appellant may have subjectively

believed that she was disclosing an abuse of authority, she has not proven that her

belief was reasonable. To illustrate, one of the emails at issue is a message from

the DCRD Chief to the appellant discussing a pending assignment and an

upcoming one, while alluding to the appellant either having a preference for or

performing better when focusing on just one assignment at a time. IAF, Tab 27

at 149. The appellant’s response, just minutes later, accused the DCRD Chief of

making “false and damaging statements about [her] skills and capabilities.” Id.

Having reviewed this email and the other materials the appellant identified, we

agree with the administrative judge. What the appellant casts as abuses of

authority would appear to the reasonable person to be quite ordinary and

appropriate management of a subordinate. See IAF, Tab 27 at 149, 153-54,

Tab 59 at 80.

Disclosure 13

¶36 In Disclosure 13, a June 2014 email, the appellant disclosed that the DCRD

Chief had harassed the appellant, culminating with the DCRD Chief pursuing the

18

appellant through the office, raising her voice, cornering the appellant, and

physically intimidating her. IAF, Tab 27 at 221; see IAF, Tab 57 at 25. The

administrative judge found that Disclosure 13 was not protected. ID at 48-50. In

short, she found that there was an encounter with unprofessional behavior by both

the appellant and the DCRD Chief—the appellant yelled at the DCRD Chief

before walking out of her office, after which the DCRD Chief responded by

angrily following the appellant to a copy room, where she pointed her finger at

the appellant during a heated discussion. Id. However, the administrative judge

concluded that the appellant failed to meet her burden of proving that the matter

disclosed was one that a reasonable person in her position would believe

evidenced an abuse of authority or any of the other categories of wrongdoing

protected in section 2302(b)(8). Id.

¶37 On review, the appellant reiterates that the DCRD Chief angrily followed

her through the office, against the appellant’s wishes, and shook her finger at the

appellant. PFR File, Tab 5 at 24-25. She also asserts that the agency’s workplace

violence policy specifically prohibits following and other intimidating conduct.

Id. at 24 (citing IAF, Tab 12 at 54-55). But the policy actually states that

“[p]hysical intimidation or harassment may include holding, impeding or blocking

movement, following, stalking, touching, or any other inappropriate physical

contact or advances.” IAF, Tab 12 at 55 (emphasis added). In other words, the

context matters; following someone is not a per se violation of the agency’s

workplace violence policies. After reviewing the administrative judge’s analysis,

we find no basis for disturbing her well-reasoned findings. While the incident

seemingly involved unprofessional behavior from both parties, the appellant

failed to prove that she reasonably believed she was disclosing the type of

wrongdoing protected under section 2302(b)(8).

Disclosure 14

¶38 In Disclosure 14, a November 2014 email, the appellant referred to

Disclosure 13, asserted that she was never contacted about the matter, and

19

suggested that the agency had not conducted a legitimate inquiry. IAF, Tab 12

at 88. During adjudication of this appeal, the appellant characterized this

disclosure as revealing that the agency was covering up the incident. E.g., IAF,

Tab 57 at 26-27. The administrative judge found that Disclosure 14 was not

protected. ID at 50-52. After recognizing that the investigation was delayed for

workload reasons, the administrative judge concluded that the appellant failed to

prove that a disinterested observer would have found that disclosure of the delay

reflected a cover-up or any other wrongdoing protected under the whistleblower

statute. Id.

¶39 On review, the appellant characterizes her disclosure as revealing that the

ORI Director abused his authority by refusing to respond to Disclosure 13. PFR

File, Tab 5 at 26. Like the administrative judge, we are not persuaded. While the

appellant may have speculated that the agency was acting nefariously because she

had yet to be contacted about the agency’s investigation, she has not proven that

she reasonably believed the agency was engaging in an abuse of authority or other

protected category of wrongdoing. See Pulcini v. Social Security Administration,

83 M.S.P.R. 685, ¶ 13 (1999) (finding that a disclosure of an agency’s alleged

delay in initiating corrective action against a coworker did not evidence what a

disinterested observer in an appellant’s position could reasonably believe was an

abuse of authority), aff’d per curiam, 250 F.3d 758 (Fed. Cir. 2000) (Table).

Disclosures 23-26

¶40 In Disclosures 23-26, a series of emails from January and February 2016,

the appellant disclosed that the DCRD Chief continued to harass the appellant by

misrepresenting their work encounters, challenging her time and attendance, and

falsely accusing her of being absent without leave. IAF, Tab 11 at 22, Tab 27

at 184, 270-72, 281-83, Tab 57 at 41-42. For example, after the DCRD Chief sent

the appellant an email that seemingly called into question whether the appellant

had requested administrative leave for the correct date, the appellant forwarded

the email to other agency officials with no text except for the subject line,

20

“[h]arassment: constantly challenging time keeping and attendance.” IAF,

Tab 27 at 184. In another example, the DCRD Chief sent the appellant an email

indicating that she had not yet heard from the appellant and reminding her that

she was required to check in by email first thing in the morning on days away

from the office so the DCRD Chief knew who was available for quick turnaround

assignments. Id. at 283. The appellant forwarded this email and follow-ups,

which suggested that the appellant tried to check in but the DCRD Chief did not

receive the message. Id. at 282-83. She characterized the DCRD Chief’s

comment that, “I have had to check on your attendance once before, so my

inquiry was reasonable,” and the DCRD Chief’s other inquiries into the

appellant’s attendance as “continuing slander.” Id.

¶41 The administrative judge found that Disclosures 23-26 were not protected.

ID at 65-68. In short, she found a vast disconnect between the DCRD Chief’s

messages and the appellant’s reaction to them. The administrative judge

determined that a disinterested observer could not reasonably believe that

Disclosures 23-26 revealed harassment or any protected category of wrongdoing.

Id.

¶42 On review, the appellant reasserts that she had a reasonable belief that her

emails were protected. PFR File, Tab 5 at 29-32. Among other things, she argues

that the administrative judge erred in crediting the DCRD Chief’s testimony,

which included an explanation about why she required that all her team members

check in on days away from the office for business purposes, and that she felt the

need to remind the appellant to check in because the appellant had failed to do so

on occasion. Id. at 29-30; ID at 67. The appellant has not presented sufficiently

sound reasons for disturbing the administrative judge’s well-reasoned credibility

findings. The appellant also argues that the administrative judge viewed the

messages in a vacuum, rather than recognizing that the DCRD Chief constantly

challenged her time and attendance as a pretext to provoke the appellant. PFR

File, Tab 5 at 30-31. We find no merit to these arguments. On their face, each of

21

the messages the appellant identified in Disclosures 23-26 share a commonality in

that they are professional supervisory messages, despite the appellant’s

unpersuasive argument that they served some nefarious purpose or were otherwise

harassing. The administrative judge expressly considered, and found not

credible, the appellant’s claims that the DCRD Chief was constantly checking on

the appellant and accusing her of leave abuse. ID at 67-68. We discern no basis

to disturb these findings. See Purifoy, 838 F.3d at 1373.

Disclosure 28

¶43 In Disclosure 28, a February 2016 email, the appellant provided a definition

of workplace violence that discusses verbal harassment, along with a copy of

Whitmore v. Department of Labor, 680 F.3d 1353 (Fed. Cir. 2012), with an email

subject line of, “Notice: Supervisory Abuse of Authority Manifesting as

Workplace Violence.” IAF, Tab 61 at 5; see IAF, Tab 57 at 43. The

administrative judge found that Disclosure 28 appeared to be yet another

allegation of harassment by the DCRD Chief and was not protected for the same

reasons as her other similar disclosures, such as Disclosures 8, 10-12, and 23-26.

ID at 69. On review, the appellant asserts that this disclosure is “protected for the

same reasons described above,” PFR File, Tab 5 at 32, but we find no basis for

concluding, contrary to the administrative judge, that this email contained a

protected disclosure. See Salerno, 123 M.S.P.R. 230, ¶ 6 (explaining that

disclosures must be specific and detailed, not vague allegations of wrongdoing).

Disclosures 29-30

¶44 In Disclosures 29-30, a conversation and follow-up email from

February 2016, the appellant disclosed that the DCRD Chief committed a battery

on her. IAF, Tab 27 at 192-93; see IAF, Tab 57 at 44. The administrative judge

found that these disclosures were not protected. ID at 69-73. Most notably, she

recognized that third-party witnesses to the incident described the DCRD Chief as

lightly touching or tapping the appellant on the shoulder while discussing a

22

business matter, and the appellant failed to prove that a disinterested observer

would have found that this amounted to battery or any other protected category of

wrongdoing. Id.

¶45 On review, the appellant argues that the administrative judge erroneously

focused on the DCRD Chief’s intent, rather than whether the appellant had a

reasonable belief about her disclosure. PFR File, Tab 5 at 32-33. We disagree.

The administrative judge appropriately considered whether a disinterested

observer could reasonably conclude that the DCRD Chief had the intent to cause

harm or offensive contact, as required for criminal or tortious battery. ID

at 72-73; see Ray v. United States, 575 A.2d 1196, 1198-99 (D.C. 1990)

(explaining that a “completed battery necessarily includes an attempted battery,”

or assault, and that an assault under the District of Columbia’s statutes requires

either an intent to injure or a menacing threat); Evans-Reid v. District of

Columbia, 930 A.2d 930, 937 (D.C. 2007) (defining a tortious battery as “an

intentional act that causes a harmful or offensive bodily contact” (citation

omitted)). The appellant also suggests that the DCRD Chief’s touching both

violated the agency’s workplace violence policy and amounted to an abuse of

authority, as evidenced by the DCRD Chief’s initial denial that she touched the

appellant at all and the appellant’s own view of the touching, given the greater

context of constant harassment. Id. at 33-35. Again, we are not persuaded. The

appellant is essentially asking that we overturn the administrative judge’s

well-reasoned credibility findings concerning the nature of the touching and

whether it was benign, as third-party witnesses described, or something more

serious, as the appellant claims. We find no reason to do so.

Disclosure 31

¶46 In Disclosure 31, from April 2016, the appellant disclosed that the agency

was covering up her reports of harassment and workplace violence by influencing

witnesses to the alleged battery by the DCRD Chief. IAF, Tab 12 at 32-34; see

IAF, Tab 57 at 45. The administrative judge found that Disclosure 31 was not

23

protected. ID at 74-76. Among other things, she found that the third -party

witness with whom the appellant alleged the DCRD Chief tampered credibly

denied any improper discussions. ID at 75. She found no other credible evidence

to support the appellant’s claim. Id.

¶47 On review, the appellant again argues that the administrative judge failed to

adequately consider whether she had a reasonable belief about her disclosure.

PFR File, Tab 5 at 36. We disagree. The administrative judge explicitly relied

on the proper standard; she determined not whether the appellant proved the

alleged wrongdoing, but whether she had a reasonable belief that she was

disclosing the type of wrongdoing protected under the whistleblower statute. ID

at 76. The appellant also suggests, again, that we should overturn the

administrative judge’s well-reasoned credibility findings, this time regarding the

third-party witness and her interactions with the DCRD Chief after the alleged

battery. PFR File, Tab 5 at 36-37. Yet we find no basis for doing so.

Disclosure 32

¶48 In Disclosure 32, emails from May 2016, the appellant alleged that the

agency had been ignoring and covering up her reports of harassment and

workplace violence for years, was encouraging “mobbing” behavior from her

coworkers, and was denying her opportunities in retaliation for her reports of

these matters. IAF, Tab 27 at 302-03; see IAF, Tab 57 at 46. The administrative

judge found that Disclosure 32 was not protected. ID at 76-79. Among other

things, she recognized that the agency conducted investigations in concert with

each of the appellant’s allegations of battery or attempted battery, and found that

the appellant lacked any reasonable basis for concluding that the agency had

instead ignored the matters or covered them up. ID at 76-77. The administrative

judge further found no merit to the appellant’s allegations that the agency was

encouraging her coworkers to gang up on her, creating a hostile work

environment, or denying her opportunities. ID at 78-79.

24

¶49 On review, the appellant reasserts that she had a reasonable belief that the

agency was covering up her prior reports of harassment and workplace violence,

PFR File, Tab 5 at 37-38, but she fails to identify any persuasive evidence that

would warrant reversing the administrative judge’s findings to the contrary. The

appellant also argues that she had a reasonable belief that the agency was

violating a specific provision of its workplace violence policy, indicating that

management is responsible for investigating acts of violence in a timely manner

and providing feedback to employees regarding the outcome of their reports

regarding violent or potentially violent incidents. Id. at 37; see IAF, Tab 27

at 303. However, it appears that the appellant did not advance this theory of her

disclosure below. IAF, Tab 57 at 46, Tab 68 at 44. And while the appellant’s

petition for review contains a link to the workplace violence policy provision she

now relies on, she has not identified, nor have we come across, that provision in

the voluminous record below. E.g., IAF, Tab 12 at 54-55. Accordingly, we will

not consider this argument and evidence any further. See Banks v. Department of

the Air Force, 4 M.S.P.R. 268, 271 (1980) (explaining that the Board will not

consider an argument raised for the first time in a petition for review absent a

showing that it is based on new and material evidence not previously available

despite the party’s due diligence); Avansino v. U.S. Postal Service, 3 M.S.P.R.

211, 214 (1980) (under 5 C.F.R. § 1201.115, the Board will not consider evidence

submitted for the first time with the petition for review absent a showing that it

was unavailable before the record was closed despite the party’s due diligence);

see also Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133 (1980) (before

the Board will undertake a complete review of the record, the petitioning party

must explain why the challenged factual determination is incorrect, and identify

the specific evidence in the record which demonstrates the error), review denied

per curiam, 669 F.2d 613 (9th Cir. 1982).

25

The administrative judge correctly determined that the appellant met her burden

of proof for Disclosures 2-4, 6, 15-18, 22, and 27.

¶50 As mentioned before, the administrative judge found that the appellant met

her burden of proving that Disclosures 2-4, 6, 15-18, 22, and 27 were protected.

ID at 17-79, 88. Nevertheless, the appellant disputes the administrative judge’s

findings for some. PFR File, Tab 5 at 12-38. We will briefly discuss each of the

disclosures the administrative judge found protected, while addressing any

remaining arguments the appellant has presented.

Disclosure 2—performance rating contrary to agency regulations

¶51 In Disclosure 2, a conversation from October 2011, the appellant reportedly

disclosed that the agency improperly rated her as “meets expectations” in a

category for which she was not assigned sufficient work to warrant any rating at

all. IAF, Tab 57 at 15; see IAF, Tab 27 at 197. The administrative judge found

that Disclosure 2 was protected because it revealed a violation of agency

regulations about how to treat a rating category when insufficient work was

assigned. ID at 21-23. She did not, however, agree with the appellant’s argument

that Disclosure 2 also evidenced an abuse of discretion or violation of the

prohibition against arbitrary action and favoritism set forth in 5 U.S.C.

§ 2301(b)(8)(A). ID at 23. In short, while the appellant suggested that the ORI

Director had acted intentionally, with animus, the administrative judge found it

more likely that the agency had inadvertently violated the agency regulation. Id.

¶52 Even though the administrative judge found this disclosure protected, the

appellant’s petition contains an argument, disagreeing with the administrative

judge’s analysis. The appellant reasserts that Disclosure 2 revealed an abuse of

authority and violation of law. PFR File, Tab 5 at 16. Because the administrative

judge properly identified this disclosure as protected, the appellant’s

disagreement as to its characterization does not provide a basis for granting

review. See Hoback v. Department of the Treasury, 86 M.S.P.R. 425, ¶ 11 (2000)

(explaining that appellants need not correctly label the category of wrongdoing

26

for their disclosure to be protected); Panter v. Department of the Air Force,

22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not

prejudicial to a party’s substantive rights provides no basis for reversal of an

initial decision).

Disclosure 3—inappropriate work requirement

¶53 In Disclosure 3, an August 2012 email, the appellant alleged that the DCRD

Chief threatened to require that she, but not her colleagues, produce an advisory

opinion every month. IAF, Tab 59 at 51; see IAF, Tab 57 at 16. The

administrative judge found that this disclosure was protected because the

appellant had a reasonable belief that the DCRD Chief was abusing her authority.

ID at 23-25.

Disclosure 4—attempted battery by coworker

¶54 In Disclosure 4, a conversation from August 2012, memorialized in an email

the next day, the appellant disclosed that a coworker had attempted to commit a

battery upon her in the hallway. IAF, Tab 57 at 17; see IAF, Tab 27 at 204.

More specifically, the appellant alleged that she and a coworker crossed paths in

the office, the coworker attempted to make physical contact with the appellant,

and the appellant had to move her arm to try and avoid the contact, yet the

coworker’s sweater did brush up against the appellant’s arm. IAF, Tab 27 at 204.

The administrative judge found that the appellant had a reasonable belief that the

coworker had attempted to commit a battery or intimidate the appellant, so this

disclosure was protected. ID at 25-27.

Disclosure 6—re-disclosing a prior disclosure

¶55 In Disclosure 6, a December 2012 email, the appellant discussed her

performance and performance ratings. IAF, Tab 27 at 207-08; see IAF, Tab 57

at 19. Because one of the assertions in this email mirrored that of Disclosure 2,

which was protected, the administrative judge found that Disclosure 6 was

similarly protected. ID at 28-29.

27

Disclosures 15-18—re-disclosing prior disclosures

¶56 While the appellant made most of her prior disclosures to the ORI Director

and the DCRD Chief, she turned to different agency officials to make

Disclosures 15-18, which largely consisted of re-disclosing matters previously

disclosed to others. IAF, Tab 57 at 28-29, 31, 33. The administrative judge did

not agree with all of the appellant’s arguments concerning these disclosures, but

the administrative judge did find that they were protected because the scope of

these disclosures included disclosures that she had already deemed protected.

More specifically, she found that Disclosures 15, 17, and 18 were protected

because they re-disclosed Disclosures 2-4, while Disclosure 16 was protected

because it re-disclosed Disclosure 2. ID at 52-58, 88.

¶57 On review, the appellant alleges that the administrative judge

mischaracterized the scope of Disclosure 16 as something less than that which

was included in Disclosure 15. PFR File, Tab 5 at 27-28. However,

Disclosures 15 and 16 had different recipients, and the administrative judge’s

description of Disclosure 16 was based on the testimony of the only parties to the

associated conversation—the appellant and a Deputy Assistant Secretary. ID

at 53-54. While the appellant cites to the testimony of an individual that received

Disclosure 15, she has failed to show its relevance in determining the content of

Disclosure 16. PFR File, Tab 5 at 27-28.

¶58 The appellant also alleges that the administrative judge erred in her analysis

of Disclosure 18. PFR File, Tab 5 at 29. Again, the administrative judge found

that this disclosure was protected because it included the same matters as

Disclosures 2-4. ID at 56-58. However, the appellant argued that Disclosure 18

was also protected because it revealed that a proposed settlement agreement

between the agency and the appellant’s union would have required that she attend

Employee Assistance Program (EAP) counseling, and the appellant believed that

provision was both illegal and retaliatory. IAF, Tab 57 at 33; see IAF, Tab 13

at 59-60, Tab 27 at 84, 86. The administrative judge found nothing improper

28

about the proposed settlement provision and further found that the appellant

failed to prove that a disinterested observer would reasonably believe that this

reflected a violation of law or other protected category of wrongdoing. ID

at 56-58. While the appellant disagrees with that assessment and argues that the

administrative judge did not adequately focus on whether she had a reasonable

belief, PFR File, Tab 5 at 29, we find her arguments unavailing and unpersuasive.

Disclosure 22—plan to file an OSC complaint

¶59 In Disclosure 22, a December 2015 email, the appellant stated that she

planned to file a complaint with OSC for harassment and the failure to remedy

that harassment. IAF, Tab 60 at 49; see IAF, Tab 57 at 39. The administrative

judge found that Disclosure 22 was protected because it revealed her intent to

engage in protected activity under section 2302(b)(9)(A)(i). ID at 64-65. We

observe that this activity also expresses an intent to cooperate with or disclose

information to OSC, which is activity protected under 5 U.S.C. § 2302(b)(9)(C).

The appellant’s disclosure created the perception that she intended to engage in

protected activity. The perception that an employee engaged in protected activity

under section 2302(b)(9)(C) may form the basis of an IRA appeal. Corthell v.

Department of Homeland Security, 123 M.S.P.R. 417, ¶ 12 (2016), overruled on

other grounds by Requena v. Department of Homeland Security , 2022 MSPB 39.

Disclosure 27—ignored workplace violence

¶60 In Disclosure 27, a February 2016 email, the appellant alleged that although

she made repeated reports of workplace violence, those reports were still being

ignored. IAF, Tab 11 at 87-88; see IAF, Tab 57 at 42-43. The administrative

judge found that Disclosure 27 was protected because it included a re-disclosure

of Disclosure 4. ID at 68, 88. On review, the appellant simply asserts that this

disclosure is “protected for the same reasons described above,” apparently

alluding to some of the arguments she made for earlier disclosures. PFR File,

29

Tab 5 at 32. We find no basis for disturbing the administrative judge’s

conclusion that Disclosure 27 is protected because it re-disclosed Disclosure 4.

The administrative judge correctly identified the personnel actions at issue.

¶61 As previously stated, the administrative judge found that the appellant was

subject to four relevant personnel actions—her FY 14 performance appraisal, the

denial of transfer requests between August 2012 and November 2014, a

significant change in working conditions in or around February 2016 when she

was placed under the supervision of a different agency official, and a

February 2016 letter of reprimand—but no others. ID at 80-86, 88. On review,

the appellant reasserts that she was subject to additional personnel actions. PFR

File, Tab 5 at 35-48. We are not persuaded.

Cursory narratives in FY 14 performance appraisal

¶62 The appellant first argues that the agency provided cursory rather than

substantive narratives within her FY 14 performance appraisal, and that amounted

to a separate personnel action. PFR File, Tab 5 at 35-36; see IAF, Tab 14

at 27-37, 60-61. But again, the administrative judge found that the performance

appraisal itself was a personnel action cognizable in this appeal. ID at 80-81.

The appellant has failed to identify anything to support her argument that the

level of detail in the performance appraisal narratives constitutes a separate

personnel action within the meaning of the whistleblower statute. See 5 U.S.C.

§ 2302(a)(2)(A)(viii) (defining “personnel action” as including, inter alia, a

performance evaluation).

Threats of counseling

¶63 The appellant next argues that the agency twice threatened counseling or

EAP referrals, and those threats constitute personnel actions. PFR File, Tab 5

at 39. The first purported threat occurred during a conversation with the DCRD

Chief when, according to the appellant, the DCRD Chief indicated that she was

going to send the appellant to counseling. E.g., IAF, Tab 13 at 62. What the

30

appellant characterizes as the second threat was the provision of a grievance

settlement agreement of the appellant’s FY 14 performance appraisal. Id. at 59.

As we previously discussed with Disclosure 18, this provision would have

required that she undergo a certain number of EAP sessions. Id.

¶64 The administrative judge considered the arguments but found that the

appellant failed to prove by preponderant evidence that the agency’s actions

amounted to threats of a personnel action. ID at 81-83 (referencing 5 U.S.C.

§ 2302(a)(2)(A)(x) (defining “personnel action” as including “a decision to order

psychiatric testing or examination”)). She explained that the appellant’s own

testimony and her email messages about the DCRD Chief’s reference to

counseling was somewhat inconsistent and gave no indication that the DCRD

Chief was actually threatening to order the appellant to undergo psychiatric

testing or examination. ID at 82. The administrative judge further explained that

the agency’s subsequent proposal for EAP counseling stemmed from what they

perceived as emotional distress from the appellant, but that cannot be equated

with a decision to order psychiatric testing or examination, and there was no

credible evidence that agency officials threatened the appellant with psychiatric

testing or examination during the period at issue. ID at 82-83. While we

recognize the appellant’s disagreement and assertion that we should adopt a

broader interpretation of “personnel action,” we find no basis for disturbing the

administrative judge’s conclusion, which is grounded in explicit and implicit fact

findings and credibility determinations about the motivations of agency officials.

Cf. Agoranos v. Department of Justice, 119 M.S.P.R. 498, ¶¶ 34-35 (2013)

(finding that an offer or recommendation to undergo a psychiatric examination is

an implicit order within the scope of section 2302(a)(2)(A)(x) when accompanied

by a threat of repercussions if declined).

April 2015 denied transfer request

¶65 The next personnel action reasserted by the appellant is an alleged denial of

an additional transfer request in April 2015, after the ones recognized by the

31

administrative judge. PFR File, Tab 5 at 39-40. The administrative judge found

no credible evidence that the appellant requested a transfer from the ORI Director

or the Deputy Assistant Secretary in April 2015. ID at 83. On review, the

appellant has directed us to April 2015 emails showing that two other agency

officials—the Office of Program Planning Evaluation Management (OPPEM)

Director and a Human Resources official—discussed the possibility of a transfer

at that time, but the OPPEM Director determined that no transfer was available.

See IAF, Tab 62 at 66-68. However, even if this did constitute an additional

personnel action, we found nothing that would satisfy the remainder of the

appellant’s burden, i.e., that her protected disclosures were a contributing factor

in the April 2015 transfer denial. She has not, for example, directed us to specific

evidence showing that the OPPEM Director had actual or constructive knowledge

of the appellant’s protected disclosures when he denied the transfer request. 11 See

Weaver, 2 M.S.P.R. at 133.

Hostile work environment

¶66 The appellant’s final alleged personnel action reasserted on review is what

she characterizes as a significant change in working conditions in the form of the

DCRD Chief and the ORI Director creating a hostile work environment from

2014 to 2016. PFR File, Tab 5 at 40-48; see, e.g., IAF, Tab 68 at 44-48. The

administrative judge found that the appellant failed to prove that she was subject

to a “significant change in working conditions” in this regard. ID at 85-86. In

short, she found that the appellant’s allegations were largely unsubstantiated and

lacking in the frequency and severity necessary to constitute a hostile work

environment. Id.

11

We recognize that other individuals, including the ORI Director and the DCRD Chief,

who knew of the appellant’s prior protected activity, were ultimately included in the

email chain discussing this transfer. However, the evidence the appellant directed us to

suggests they were only included after the OPPEM Director determined that no transfer

was available. IAF, Tab 62 at 66-68.

32

¶67 On review, the appellant asserts that the administrative judge improperly

applied Title VII hostile work environment standards. PFR File, Tab 5 at 42. In

fact, the administrative judge did reference Title VII hostile work environment

standards when discussing whether the appellant’s disclosures of a hostile work

environment were protected, e.g., ID at 31, but her discussions of whether

the appellant was subject to a “personnel action” in the form of a

hostile work environment cited no standard other than the language of

section 2302(a)(2)(A)(xii), ID at 85-86.

¶68 Under the Whistleblower Protection Act (WPA), including as amended by

the Whistleblower Protection Enforcement Act of 2012, “personnel action” is

defined as including a “significant change in duties, responsibilities, or working

conditions.” 5 U.S.C. § 2302(a)(2)(A)(xii); Skarada v. Department of Veterans

Affairs, 2022 MSPB 17, ¶ 14. We recently clarified that, while the term “hostile

work environment” has a particular meaning in other contexts, allegations of a

hostile work environment may establish a personnel action under the WPA only if

they meet the statutory criteria, i.e., constitute a significant change in duties,

responsibilities, or working conditions. Id., ¶ 16. We further explained that

although a “significant change” in working conditions should be interpreted

broadly to include harassment and discrimination that could have a chilling effect

on whistleblowing or otherwise undermine the merit system, only agency actions

that, individually or collectively, have practical and significant effects on the

overall nature and quality of an employee’s working conditions, duties, or

responsibilities will be found to constitute a personnel action covered by

section 2302(a)(2)(A)(xii). Id.

¶69 The initial decision in the instant appeal preceded our decision in Skarada.

We therefore modify the initial decision to incorporate the aforementioned

standard. However, as further detailed below, we find no basis for disturbing the

administrative judge’s findings.

33

¶70 The appellant argues that the administrative judge failed to recognize or

appreciate the abuse she suffered during the relevant period when considering

whether the appellant was subject to this alleged personnel action. PFR File,

Tab 5 at 40-48. However, her arguments largely reflect disagreement with the

administrative judge’s findings, which are grounded in well-reasoned credibility

determinations. For example, the appellant once again refers to the alleged

battery by the DCRD Chief to support her claim that she was subject to a

cognizable personnel action, but the administrative judge found that there was no

such battery. Compare id. at 40-41, with ID at 69-73. The appellant also refers

to cover-ups that followed whenever she filed a complaint of violence, PFR File,

Tab 5 at 45-47, but the administrative judge found that the agency conducted

investigations after each complaint and the appellant’s cover-up allegations were

unsupported, e.g., ID at 38, 51, 75, 77. The appellant’s other allegations, such as

ones of “mobbing” behavior, fare no better. Compare PFR File, Tab 5 at 43-44,

with ID at 38, 76, 78-79.

¶71 The appellant also argues that the administrative judge failed to

acknowledge pertinent evidence, such as evidence that reflected a consciousness

of guilt on the parts of the DCRD Chief and the ORI Director, along with

testimonial evidence from the appellant herself. PFR File, Tab 5 at 41-43. But

we discern no meaningful omission in the administrative judge’s extensive

analysis. The record included thousands of pages of evidence and 7 days of

hearing testimony. As we previously noted, an administrative judge’s failure to

mention all of the evidence does not mean that she did not consider it in reaching

her decision. Mithen, 122 M.S.P.R. 489, ¶ 14.

¶72 Next, the appellant suggests that the administrative judge exhibited bias by

blaming the appellant for the agency’s harassment and filling the decision with

gratuitous and unsupported attacks on the appellant’s character without ever

mentioning evidence of her positive attributes and work contributions. PFR File,

Tab 5 at 41 n.11. But we find no evidence of bias. See Bieber v. Department of

34

the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (recognizing that an

administrative judge’s conduct during the course of a Board proceeding warrants

a new adjudication only if the administrative judge’s comments or actions

evidence “a deep-seated favoritism or antagonism that would make fair judgment

impossible” (quoting Liteky v. United States, 510 U.S. 540, 555 (1994))). We

instead find that the administrative judge properly analyzed the relevant issues,

which necessarily required discussions of the appellant’s behavior, particularly in

response to supervision. E.g., ID at 41-44. In fact, one of the gratuitous attacks

the appellant cites is actually the administrative judge’s mere recounting of the

appellant’s own allegations. Compare PFR File, Tab 5 at 41 n.11 (alleging that

the administrative judge described the appellant as, inter alia, “unproductive”),

with ID at 3, 23, 82 (recounting the appellant’s allegations that the DCRD Chief

accused the appellant of being unproductive).

¶73 Based on the aforementioned standard from Skarada, and the administrative

judge’s findings of fact, with which we agree, we conclude that the appellant

failed to prove that she was subjected to a personnel action in the form of

harassment or a hostile work environment between 2014 and 2016.

The administrative judge correctly analyzed the contributing factor criterion.

¶74 We now turn to the final element of the appellant’s burden: proving that

her protected disclosures—Disclosures 2-4, 6, 15-18, 22, and 27—were a

contributing factor in the cognizable personnel actions. To prove that a

disclosure was a contributing factor in a personnel action, the appellant need only

demonstrate that the fact of, or the content of, the protected disclosure was one of

the factors that tended to affect the personnel action in any way. Mastrullo v.

Department of Labor, 123 M.S.P.R. 110, ¶ 18 (2015). An appellant may meet

this burden through circumstantial evidence, such as evidence that the official

taking the personnel action knew of the disclosure, and that the personnel action

occurred within a period of time such that a reasonable person could conclude

35

that the disclosure was a contributing factor in the personnel action, i.e., the

knowledge/timing test. Id.; see 5 U.S.C. § 1221(e)(1).

¶75 For the first personnel action, the appellant’s FY 14 performance appraisal,

the administrative judge found that the appellant proved that Disclosures 15, 17,

and 18 were contributing factors. ID at 89. For the second personnel action, the

denial of transfer requests, the administrative judge found that the appellant

proved that Disclosures 3-4, and 6 were contributing factors for those requests

that occurred between August 2012 and November 2014, while Disclosure 16 was

a contributing factor for just the November 2014 transfer request. Id. For the

third personnel action, a significant change in working conditions by being placed

under the supervision of a different agency official in or around February 2016,

the administrative judge found that the appellant proved that Disclosures 15, 17,

18, and 22 were contributing factors. Id. at 89-90. For each of these, the

administrative judge found that the appellant satisfied the knowledge/timing test.

¶76 For the fourth and final personnel action, a February 2016 letter of

reprimand, the administrative judge found that the DCRD Chief issued the

reprimand, but she only knew of the protected disclosures that occurred more than

3 years earlier, such that the knowledge/timing test was not satisfied. Id. at 90.

Nevertheless, the administrative judge further found that the appellant proved the

contributing factor criterion because other agency officials who were directly

involved in the reprimand knew of more recent protected disclosures that did

satisfy the knowledge/timing test. Id. Although she did not explicitly identify

those more recent disclosures, the administrative judge appeared to be referencing

Disclosures 15 through 18 and 22.

¶77 On review, the appellant asserts that “[i]t is absurd” for the administrative

judge to conclude that the DCRD Chief had no knowledge of the appellant’s

disclosures because the ORI Director forwarded all of the appellant’s complaints

to the DCRD Chief. PFR File, Tab 5 at 48. But in doing so, the appellant has

36

neither identified to which disclosures she is referring, nor cited any evidence of

record.

¶78 The appellant also suggests that the administrative judge considered the

knowledge/timing test but failed to consider whether there was other

circumstantial evidence that could satisfy the contributing factor criterion. PFR

File, Tab 5 at 48. She then summarily states that she set forth contributing factor

outlines in her submissions. Id. (citing IAF, Tab 1 at 38-59, Tab 57 at 47-56).

Yet the materials cited repeatedly refer to the knowledge/timing test, without any

substantive argument that the contributing factor criterion is met through other

means. See, e.g., IAF, Tab 1 at 39, 47, 54, Tab 57 at 53-54. Accordingly, we

find no reason to reach a conclusion different than the administrative judge.

The agency met its burden of proving that it would have taken the same actions in

the absence of the appellant’s protected disclosures.

¶79 Because the appellant met her burden of proving that some of her protected

disclosures were contributing factors in personnel actions, we now turn to the

question of whether the agency proved, by clear and convincing evidence, that it

would have taken the same personnel actions in the absence of the protected

disclosures. 5 U.S.C. § 1221(e)(1)-(2); Salerno, 123 M.S.P.R. 230, ¶ 5.

¶80 In determining whether the agency has shown by clear and convincing

evidence that it would have taken the same personnel action in the absence of

protected activity, the Board generally will consider the following factors:

(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’s officials who

were involved in the decision; and (3) any evidence that the agency takes similar

actions against employees who did not engage in protected activity but who are

otherwise similarly situated. See Carr v. Social Security Administration,

185 F.3d 1318, 1323 (Fed. Cir. 1999). The Board must consider all pertinent

record evidence in making this determination. Whitmore, 680 F.3d at 1368. The

Board does not view these factors as discrete elements, each of which the agency

37

must prove by clear and convincing evidence. Phillips v. Department of

Transportation, 113 M.S.P.R. 73, ¶ 11 (2010). Rather, the Board will weigh the

factors together to determine if the evidence is clear and convincing as a whole.

Id.

¶81 The administrative judge conducted an extensive analysis of the first Carr

factor, finding that the agency’s evidence in support of each of its personnel

actions was strong. ID at 91-95. For the second Carr factor, she found that the

agency did not possess a particularly strong motive to retaliate. ID at 95-96. And

for the third Carr factor, the administrative judge concluded that the agency

failed to present any comparator evidence, which weighed slightly against the

agency. ID at 96. The administrative judge considered the individual the

appellant identified as a potential comparator concerning the denied transfer

requests but found that her situation was distinguishable. Id. Weighing these

factors together, the administrative judge concluded that the agency met its

burden. ID at 97. On review, the appellant asserts that the administrative judge

grossly abused her discretion in reaching these findings, reflecting the

administrative judge’s disdain for employees. PFR File, Tab 5 at 48-61. We

disagree.

¶82 We need not address many of the appellant’s arguments about the strength

of the agency’s evidence as to personnel actions for which she failed to meet her

burden. For example, the appellant argues that the agency did not meet its burden

regarding her April 2015 transfer request; a significant change in working

conditions by way of harassment and hostility; along with the Fiscal Year 2005

and 2011 to 2013 performance appraisals. PFR File, Tab 5 at 52-53, 55-57,

60-61. The agency had no burden of proof for those matters because the

appellant failed to present a prima facie case of whistleblower reprisal for the

same. See Clarke v. Department of Veterans Affairs , 121 M.S.P.R. 154, ¶ 19 n.10

(2014) (recognizing that the Board may not proceed to the clear and convincing

test unless it has first made a finding that the appellant established his prima facie

38

case, i.e., that he made a protected disclosure that was a contributing factor in a

personnel action), aff’d per curiam, 623 F. App’x 1016 (Fed. Cir. 2015). 12

¶83 The appellant’s remaining arguments about the agency’s burden are

unavailing because they generally reflect disagreement with the administrative

judge’s findings of fact that are grounded in credibility determinations or they

erroneously fault the administrative judge for not discussing every piece of

evidence or theory. For example, in response to the administrative judge

determining that relevant officials did not feel particularly threatened by the

appellant’s allegations—a finding implicitly rooted in credibility determinations

—the appellant claims there was no evidence of the same. PFR File, Tab 5 at 49

(referencing ID at 95-96). On that same point, the second Carr factor, the

appellant also suggests that the administrative judge should have considered how

the effort expended on investigations into the appellant’s complaints may have

created a motive to retaliate against her. PFR File, Tab 5 at 50. But again, the

appellant has failed to present any persuasive basis for us to disturb the

administrative judge’s well-reasoned credibility findings, and the administrative

judge’s failure to mention every piece of evidence in the voluminous record or

every alternative theory the appellant has for the agency’s actions does not mean

12

The U.S. Court of Appeals for the Seventh Circuit has disagreed with the Board’s

decision in Clarke. Delgado v. Merit Systems Protection Board, 880 F.3d 913, 924-25

(7th Cir. 2018). However, the court’s disagreement was on other grounds and does not

implicate the holding at issue here. Id.

39

that the administrative judge failed to consider them. 13 See Mithen, 122 M.S.P.R.

489, ¶ 14.

¶84 We are mindful of the requirement that the Board evaluate all of the

pertinent evidence in determining whether an agency has met its clear and

convincing burden. Campbell v. Department of the Army, 123 M.S.P.R. 674, ¶ 22

(2016). Here, the administrative judge’s thorough initial decision reflects that

she did so. See id., ¶¶ 14, 22-23 (finding that an administrative judge’s thorough

initial decision showed that she closely listened to the testimony of witnesses on

both sides, including those who bolstered the appellant’s claim of whistleblower

reprisal, despite the administrative judge’s failure to make explicit findings on all

the Carr factors).

¶85 In conclusion, we agree with the administrative judge that the appellant met

her burden regarding some disclosures and personnel actions, but the agency met

its burden as well, such that corrective action is not warranted.

13

To the extent the administrative judge failed to specifically address any professional

or institutional motive to retaliate, we find that she made implicit credibility-based

findings that such motive was not strong. See, e.g., Soto v. Department of Veterans

Affairs, 2022 MSPB 6, ¶¶ 14-15 (recognizing that the Board should avoid an overly

restrictive analysis of the motive to retaliate and should consider whether officials

possessed a professional retaliatory motive due to disclosures implicating agency

officials and employees in general); Smith v. Department of the Army, 2022 MSPB 4,

¶¶ 28-29 (2022) (recognizing that the Board should avoid an overly restrictive analysis

of the motive to retaliate and finding that an appellant's disclosures reflected poorly on

agency officials as representatives of the agency’s general institutional interests, even

though they were not personally implicated by the disclosures). Among other things,

the administrative judge ultimately concluded that the appellant’s disclosures were

“almost entirely focused on her own experiences working under” the DCRD Chief and

the ORI Director, that they did not feel “particularly threatened” by her allegations, and

that other agency officials made “good faith efforts to resolve her complaints.” E.g., ID

at 95-96. These stated facts and the administrative judge’s well-reasoned decision

reflect little professional or institutional motive to retaliate against the appellant.

40

NOTICE OF APPEAL RIGHTS 14

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

14

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.

41

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

42

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

43

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. 15 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

15

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.

44

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.