Opinion

Margaret Considine v. Department of the Treasury

Court: Merit Systems Protection Board
Filed: Jun 27, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.0%

finding that the Board must defer to an administrative judge’s demeanor-based credibility determinations “[e]ven if demeanor is not explicitly discussed”

How later courts described this case

finding that the Board must defer to an administrative judge’s demeanor-based credibility determinations “[e]ven if demeanor is not explicitly discussed”
finding a disclosure protected if a disinterested observer could reasonably conclude that the “actions of the [G]overnment” evidence a kind of wrongdoing covered under 5 U.S.C. § 2302(b)(8)
stating that disclosures may be protected if the “disclosure includes allegations of government complicity in the private wrongdoing”
finding that the Board correctly declined to consider allegations of disclosures not clearly raised before OSC

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MARGARET M. CONSIDINE, DOCKET NUMBER

Appellant, PH-1221-17-0279-W-1

DEPARTMENT OF THE TREASURY, DATE: June 27, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Richard R. Renner , Esquire, Chapel Hill, North Carolina, for the appellant.

Neil M. Robinson , Esquire, and Amber Melton , Esquire, Washington, D.C.,

for the agency.

Lamine Hendrix , Esquire, Washington, D.C., for amicus curiae, the Office

of Special Counsel.

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.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

FINAL ORDER

The agency has filed a petition for review, and the appellant has filed a

cross petition for review of the initial decision, which granted corrective action in

this individual right of action (IRA) appeal. For the reasons discussed below, we

DENY the appellant’s motion to dismiss the agency’s petition for review for

failure to comply with an interim relief order, GRANT the agency’s petition for

review, DENY the appellant’s cross petition for review, REVERSE the initial

decision, and DENY the appellant’s request for corrective action.

BACKGROUND

By notice dated June 22, 2016, the agency terminated the appellant from

her excepted-service position as a Bank Examiner with the Office of the

Comptroller of the Currency (OCC) in New Jersey during her trial period due to

inadequate performance, effective close of business on June 23, 2016. Initial

Appeal File (IAF), Tab 5 at 27, Tab 6 at 4. Thereafter, the appellant filed a

complaint with the Office of Special Counsel (OSC) alleging that the agency

terminated her in retaliation for whistleblowing disclosures. IAF, Tab 1 at 13-14.

By notice dated March 31, 2017, OSC notified her that it was closing her

complaint without action and summarized her disclosures as follows:

1. In early February 2016, you disclosed to two supervisors that a

bond on a certain bank’s trial balance sheet appeared to violate the

Volcker rule 2 and to present a conflict of interest.

2. On several occasions beginning in February 2016, you

complained to management officials that loud conversations and

other commotion in the examination rooms disrupted your efforts to

concentrate on your work assignments.

3. In June 2016, you reported to management officials that the

Functional Examiner-in-Charge [(FEIC)] provided false information

to a bank official by stating that the OCC had consented to a

proposal to backdate a legal document.

In relevant part, the Volcker Rule prohibits banks from engaging in certain investment

activity using customer deposits. See 12 U.S.C. § 1851; 12 C.F.R. part 44; IAF, Tab 5

at 11, Tab 11 at 11.

4. On two separate occasions in June 2016, you informed the [FEIC]

that commercial real estate loans had been financed without any

evidence that hazardous environmental conditions noted in a phase

one assessment had been addressed or remedied.

Id. at 13.

The appellant timely filed the instant IRA appeal arguing that the agency

terminated her from her position in retaliation for the disclosures identified in

OSC’s closure letter. IAF, Tab 1 at 6, Tab 11 at 23-29. The administrative judge

found that the appellant established jurisdiction over her appeal and held the

hearing she requested. IAF, Tabs 18, 42-43. In the initial decision, the

administrative judge found that disclosure 3, which pertained to the FEIC falsely

informing a bank that the OCC consented to its backdating proposal, was

protected and that the appellant engaged in protected activity by filing a prior

Board appeal. IAF, Tab 46, Initial Decision (ID) at 8-9, 11. He found that

disclosures 2 and 4 were not protected because a reasonable person would not

believe that a noisy workplace or a loan collateralized by real property that may

not have been properly appraised evidenced one of the categories of wrongdoing

covered by the Whistleblower Protection Enhancement Act (WPEA). ID at 8-9.

In addition, he found that disclosures 1 and 4 were not protected because,

pursuant to Aviles v. Merit Systems Protection Board, 799 F.3d 457 (5th Cir.

2015), disclosures of misconduct by non-Governmental entities are not covered

by the WPEA unless there is an allegation of Government complicity in the

private wrongdoing. ID at 7-8. The administrative judge concluded that the

appellant’s third disclosure and prior Board appeal contributed to the agency’s

decision to terminate her, and that the agency failed to show by clear and

convincing evidence that it would have taken the same action in the absence of

her protected activity. ID at 12-14. Accordingly, he granted the appellant’s

request for corrective action and ordered the agency to reinstate her. ID at 14.

The initial decision did not contain a statement on interim relief.

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

appellant has responded, and the agency has replied. Petition for Review (PFR)

File, Tabs 1, 5, 7. The appellant has filed a motion to dismiss the agency’s

petition for review on the grounds that it did not provide her interim relief, and

the agency has responded in opposition to this motion. PFR File, Tabs 3-4.

The appellant has also filed a cross petition for review, and the agency has

responded. 3 PFR File, Tabs 5, 8. OSC has filed an amicus curiae brief in which

it argues that the Board should hold, contrary to Aviles, that the WPEA broadly

protects Federal employee disclosures of wrongdoing by non-Governmental

entities or, in the alternative, that such disclosures are protected if they implicate

the Government’s good name and interests, rather than only when there are

allegations of Government complicity in the private wrongdoing. 4 PFR File,

Tab 12. The agency and the appellant have responded to OSC’s amicus brief. 5

PFR File, Tabs 14-15.

On December 4, 2018, after the record closed on review, the appellant filed a motion

for leave to reply to the agency’s response to her cross petition for review. PFR File,

Tab 10. She argues that this additional pleading is needed to clarify the applicability of

Aviles to this appeal, to respond to the agency’s argument that it had no duty to provide

interim relief, and to explain that her request for additional witnesses is conditional

upon the agency prevailing on its petition for review. PFR File, Tab 1 at 4-5.

However, as the Office of the Clerk of the Board advised her, the Board’s regulations

do not provide for a reply to a response to a cross petition for review and generally

preclude consideration of evidence or argument submitted after the close of the record

absent a showing that it was not readily available before the record closed. PFR File,

Tab 9; 5 C.F.R. § 1201.114(a)(5), (k). Here, the appellant has not shown that the reply

she seeks to file contains evidence or argument that was unavailable before the close of

the record or that it is necessary for our understanding of the case. Moreover, she was

afforded an opportunity to further address Aviles in her response to an amicus curiae

brief filed by OSC. PFR File, Tab 15. Accordingly, we DENY her motion. See Martin

v. U.S. Postal Service, 123 M.S.P.R. 189, ¶ 8 n.1 (2016); Parikh v. Department of

Veterans Affairs, 116 M.S.P.R. 197, ¶ 5 n.1 (2011).

We grant OSC’s unopposed motion for leave to file an amicus curiae brief. PFR File,

Tab 12; see 5 C.F.R. § 1201.34(e).

To the extent the parties’ responses address matters beyond the scope of OSC’s amicus

brief, PFR File, Tab 14 at 8-10, Tab 15 at 4-8, we do not consider them, see 5 C.F.R.

§ 1201.114(a)(5), (k).

ANALYSIS

The appellant’s motion to dismiss the agency’s petition for review is denied.

When an administrative judge issues an initial decision in an IRA appeal

and the appellant is the prevailing party, interim relief may be provided under

5 U.S.C. § 7701(b)(2)(A). Costin v. Department of Health & Human Services ,

72 M.S.P.R. 525, 530-32 (1996), modified on other grounds, 75 M.S.P.R. 242

(1997). When an agency fails to satisfy its interim relief obligation, its petition

for review may be subject to dismissal within the Board’s discretion. 5 C.F.R.

§ 1201.116(b)-(e); see Magnusson v. Department of Veterans Affairs, 67 M.S.P.R.

88, 90-91 (1995).

When, as here, the appellant is the prevailing party in the initial decision,

the Board’s regulations require that the initial decision contain a statement on

interim relief, affirmatively stating whether interim relief has been granted.

5 C.F.R. § 1201.111(b)(4). The initial decision in this case contained no such

statement. Because they were uncertain of the administrative judge’s intentions,

the parties sought clarification from him after the initial decision was issued.

PFR File, Tab 4 at 5. In the ensuing teleconference, the administrative judge

informed the parties that the absence of a statement on interim relief was

intentional and that he had decided not to grant interim relief. Id. Therefore, the

agency declined to reinstate or pay the appellant pending the outcome of its

petition for review. Id. at 7. However, after the initial decision was issued, the

Board clarified that, when interim relief is available under the law, an initial

decision’s silence on interim relief has the effect of granting interim relief by

operation of statute. Stewart v. Department of Transportation, 2023 MSPB 18,

¶ 10. Thus, the administrative judge was mistaken about the legal effect of his

silence on interim relief, and for the reasons explained in her motion to dismiss,

we agree with the appellant that the agency had a legal obligation in this case to

grant her interim relief. PFR File, Tab 3 at 4-7.

Nevertheless, we decline to dismiss the agency’s petition for review for

failure to provide interim relief because the agency engaged in diligent, good

faith efforts to discover its interim relief obligations, even though the conclusion

that it reached was legally incorrect. See Stewart, 2023 MSPB 18, ¶ 12 (holding

that the chief consideration in deciding whether to dismiss an agency’s petition

for review on interim relief grounds will be “whether the agency undertook good

faith, diligent, and competent efforts to satisfy its interim relief obligation”). We

note that the statements that the administrative judge made at the teleconference

were not sufficient to relieve the agency of its interim relief obligations because

they essentially purported to alter the substance of the initial decision after it had

been issued. See id., ¶ 9. Since the Board has clarified the law on this matter in

Stewart, we now consider agencies to be on notice that silence on interim relief

means that interim relief has been granted by default, and that the administrative

judge lacks the authority to revoke such grant of interim relief in a post-initial

decision issuance or statement. If this initial decision had been issued after

Stewart, the result here might be different, but since the agency did not have the

benefit of Stewart and otherwise proceeded diligently and in good faith, we

decline to dismiss the petition for review.

The agency’s failure to timely object to the administrative judge’s decision to

disallow a witness precludes it from doing so on review.

On review, the agency argues that the administrative judge abused his

discretion in excluding one of its requested witnesses, the FEIC, from testifying

at the hearing. PFR File, Tab 1 at 20-25. The agency contends that the

significance of this witness’s testimony is “hard to overstate” because he had

personal knowledge regarding the appellant’s one disclosure found to be

protected, as well as her unsatisfactory work performance. Id. at 20. However,

the agency did not object to the administrative judge’s disallowance of this

witness below and is thus precluded from doing so on review. 6 See Tarpley v.

U.S. Postal Service, 37 M.S.P.R. 579, 581 (1988). Even if the agency had

preserved an objection below, the agency has not shown that this witness’s

hearing testimony would have differed from his deposition testimony, which is

contained in the record, or that such testimony would have altered the outcome in

this appeal. IAF, Tab 35 at 149-66, Tab 37 at 18; PFR File, Tab 1 at 20-25; see

Franco v. U.S. Postal Service, 27 M.S.P.R. 322, 325 (1985) (holding that, under

the Board’s regulations, the presiding official has wide discretion to control the

proceedings, including the authority to exclude witnesses when the requesting

party has not shown that their testimony would be relevant, material, and

nonrepetitious); see also Panter v. Department of the Air Force, 22 M.S.P.R. 281,

282 (1984) (stating that an adjudicatory error that is not prejudicial to a party’s

substantive rights provides no basis for reversal of an initial decision); 5 C.F.R.

§ 1201.41(b)(8), (10).

The Board lacks jurisdiction to consider whether the agency terminated the

appellant in retaliation for filing a prior Board appeal.

Although not raised by either party on review, a question exists regarding

the Board’s jurisdiction over the appellant’s claims related to reprisal for filing a

prior Board appeal. See Ney v. Department of Commerce, 115 M.S.P.R. 204, ¶ 7

(2010) (stating that the issue of the Board’s jurisdiction is always before the

Board and may be raised sua sponte by the Board at any time). Under the WPEA,

the Board has jurisdiction over an IRA appeal if the appellant has exhausted her

administrative remedies before OSC and makes nonfrivolous allegations of the

following: (1) she engaged in whistleblowing activity by making a protected

disclosure 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

The appellant argues that, if the agency is permitted to call the FEIC as a witness, she

must be allowed to call three rebuttal witnesses. PFR File, Tab 5 at 37-38. Because the

agency is not being permitted to call this witness, we need not address the appellant’s

argument.

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). 7

Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). The Board

may only consider those disclosures, activities, and personnel actions that the

appellant raised before OSC. See Scoggins v. Department of the Army,

123 M.S.P.R. 592, ¶ 9 (2016) (stating, in a pre-WPEA IRA appeal, that the Board

may only consider those disclosures of information and personnel actions raised

before OSC). The exhaustion requirements are met when an appellant has

provided OSC with a sufficient basis to pursue an investigation. Chambers v.

Department of Homeland Security, 2022 MSPB 8, ¶ 10.

Here, although the appellant exhausted her claim that the agency

terminated her in retaliation for making the four disclosures identified in OSC’s

closure letter, there is no evidence, and she has not alleged, that she informed

OSC that the agency retaliated against her for filing a prior Board appeal. 8 IAF,

Tab 1 at 13-14, Tab 11 at 17, Tab 33 at 18. Thus, she failed to exhaust a claim of

reprisal for prior protected activity before OSC, and the Board lacks jurisdiction

to consider it in this IRA appeal. 9 See Willis v. Department of Agriculture,

A nonfrivolous allegation is an assertion that, if proven, could establish the matter at

issue. 5 C.F.R. § 1201.4(s).

We note that the appellant has not submitted a copy of her OSC complaint or any

correspondence with OSC.

In the initial decision, the administrative judge observed that the appellant “most

certainly would have included” a claim for reprisal for prior protected activity if the

agency had been forthcoming with certain evidence regarding its knowledge of her prior

Board appeal. ID at 5 n.4. Specifically, he pointed to evidence produced by the agency

several days before the hearing showing that, on April 4, 2016, an agency employee

forwarded to the deciding official a copy of the U.S. Court of Appeals for the Federal

Circuit decision affirming the final decision of the Board in the appellant’s prior

removal appeal, Considine v. National Credit Union Administration, 366 F. App’x 157

(Fed. Cir. 2010). ID at 10-11; IAF, Tab 33 at 77-86. Because the exhaustion

requirement is jurisdictional, however, we are precluded from considering unexhausted

claims even when, as here, there may be reasons the appellant could not have previously

raised such claim before OSC. See Yunus v. Department of Veterans Affairs, 242 F.3d

1367, 1371 (Fed. Cir. 2001); Scoggins, 123 M.S.P.R. 592, ¶ 9.

141 F.3d 1139, 1144 (Fed. Cir. 1998) (finding that the Board correctly declined to

consider allegations of disclosures not clearly raised before OSC), superseded by

statute on other grounds as stated in Day v. Department of Homeland Security ,

119 M.S.P.R. 589, ¶¶ 14-15, 18 (2013).

The administrative judge correctly found that only the appellant’s third disclosure

was protected.

Although the Board lacks jurisdiction over the appellant’s claim of reprisal

for filing a prior Board appeal, we do not disturb the administrative judge’s

determination that the appellant established jurisdiction over her claim that the

agency terminated her in reprisal for at least one protected disclosure exhausted

before OSC. IAF, Tab 18. When, as here, an appellant has established

jurisdiction over her IRA appeal, she then must establish a prima facie case of

whistleblower retaliation by proving by preponderant evidence that she made a

protected disclosure or engaged in protected activity that was a contributing

factor in a personnel action taken against her. 10 Lu v. Department of Homeland

Security, 122 M.S.P.R. 335, ¶ 7 (2015); see 5 U.S.C. § 1221(e)(1).

Under the WPEA, a protected disclosure is “any disclosure of information”

that an 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. 11 5 U.S.C.

§ 2302(b)(8)(A); Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 5,

n.3 (2013). A reasonable belief exists if a disinterested observer with knowledge

of the essential facts known to and readily ascertainable by the appellant could

reasonably conclude that the actions of the Government evidence one of the

categories of wrongdoing listed in section 2302(b)(8)(A). Chavez v. Department

A preponderance of the evidence is the degree of relevant evidence that a reasonable

person, considering the record as a whole, would accept as sufficient to find that a

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

The relevant events occurred after the December 27, 2012 effective date of the

WPEA. Pub. L. No. 122-199, § 202, 126 Stat. 1465, 1476. Therefore, we have applied

the WPEA to this appeal.

of Veterans Affairs, 120 M.S.P.R. 285, ¶ 18 (2013). The appellant need not

prove, however, that the matter disclosed actually established one of the covered

types of wrongdoing. Id.

In determining whether the appellant’s disclosures were protected, the

administrative judge applied Aviles, 799 F.3d at 464-66, in which the U.S. Court

of Appeals for the Fifth Circuit found that the WPEA had not expanded the scope

of the Whistleblower Protection Act (WPA) to cover allegations of wrongdoing

by non-Governmental entities and that disclosures of private wrongdoing could

only be protected if there were allegations of Government complicity in the

alleged private wrongdoing. ID at 7-9. Pursuant to Aviles, he found that

disclosure 3 regarding the FEIC informing the bank that the agency consented to

its backdating proposal was protected because, although it involved private

wrongdoing, the FEIC was complicit in the wrongdoing. ID at 9-10; IAF, Tab 1

at 13. On the other hand, also relying on Aviles, he found that disclosure 4

regarding commercial real estate loans that were financed without evidence that

the environmental hazards on the collateralized property had been remedied, as

well as disclosure 1 pertaining to a bank’s violation of the Volcker Rule, were not

protected because they concerned purely private misconduct. ID at 8-9. He also

found that disclosure 2 regarding the loud and disruptive workplace and

disclosure 4 were not protected because a reasonable person could not believe

that these situations evidenced one of the categories of wrongdoing specified in

the WPEA. ID at 8-9.

On review, the parties have not challenged the administrative judge’s

determination that the appellant’s second disclosure regarding the disruptive

workplace was not protected, and we discern no basis to disturb this finding. PFR

File, Tabs 1, 5, 7-8. The appellant argues, however, that the administrative judge

erred in relying on Aviles to find that the first and fourth disclosures were not

protected. PFR File, Tab 5 at 31-36, Tab 15 at 8-10. She argues that Aviles was

wrongly decided and that neither the WPA nor the WPEA exclude disclosures

regarding violations of law, rule, or regulation by non -Governmental entities from

coverage. PFR File, Tab 5 at 31-37. Likewise, in its amicus brief, OSC asserts

that, pursuant to the plain language of the statute, legislative history, and a

“commonsense understanding of the WPA’s purpose and effect,” the Board

should find that Federal employee disclosures of wrongdoing by

non-Governmental entities are not excluded from protection. PFR File, Tab 12

at 4-10. In response, the agency argues that the court in Aviles thoroughly

addressed and rejected the arguments raised in OSC’s amicus brief and correctly

concluded that the WPEA does not apply to disclosures that do not involve

Government misconduct. PFR File, Tab 14 at 6-8.

As set forth above, an agency may not take a personnel action against an

employee because of “any disclosure of information” by the employee that she

reasonably believes evidences one of the categories of wrongdoing specified in

5 U.S.C. § 2302(b)(8). Despite the statute’s reference to “any disclosure of

information,” the Board has held that, under the WPA, a disclosure of

wrongdoing committed by a non-Federal Government entity may be protected

only 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. Miller v. Department

of Homeland Security, 99 M.S.P.R. 175, ¶ 12 (2005); Arauz v. Department of

Justice, 89 M.S.P.R. 529, ¶ 7 (2001); see Lachance v. White, 174 F.3d 1378,

1381 (Fed. Cir. 1999) (finding a disclosure protected if a disinterested observer

could reasonably conclude that the “actions of the [G]overnment” evidence a kind

of wrongdoing covered under 5 U.S.C. § 2302(b)(8)); see also Willis, 141 F.3d

at 1143 (finding that the purpose of the WPA is to encourage “[G]overnment

personnel to disclose [G]overnment wrongdoing”). Recently, the Board found

that the WPEA did not affect the Board’s holding in Arauz and agreed with the

analysis set forth in Aviles, 799 F.3d at 464-66, that the WPEA did not extend

coverage to disclosures of purely private wrongdoing. Covington v. Department

of the Interior, 2023 MSPB 5, ¶¶ 16-19. For the reasons set forth in Covington,

we find that the administrative judge properly relied on Aviles to find that the

WPEA did not extend coverage to disclosures of purely private conduct. In

addition, we decline OSC’s invitation to hold that disclosures of purely private

wrongdoing are broadly protected under the WPEA.

In its amicus brief, OSC also argues that, even if the Board declines to find

that the WPEA broadly protects disclosures of private wrongdoing, the

administrative judge erred in applying the standard articulated in Aviles—i.e., that

disclosures of private misconduct are protected if there are allegations of

Government complicity in the private wrongdoing—rather than the standard

previously applied by the Board—i.e., that disclosures of private wrongdoing are

protected if the private wrongdoing implicates the Government’s good name and

interests. PFR File, Tab 12 at 10-12. OSC argues that the Government

complicity standard is more restrictive than the Government good name and

interests standard enunciated in Arauz and Miller and that it is “without any basis

in the whistleblower protection statutes, legislative history, or [Board]

precedent.” Id. For the reasons discussed below, however, we find that the result

in this appeal would be the same regardless of which standard is applied, and we

therefore need not resolve whether the administrative judge erred by applying the

Government complicity standard.

The appellant’s first disclosure that a particular bank may have violated the

Volcker Rule pertains only to misconduct by the private bank and does not

implicate the Government’s good name and interests or involve Government

complicity in the alleged private wrongdoing. IAF, Tab 33 at 11-12; Hearing

Transcript (HT) at 45-48, 134-37 (testimony of the appellant). We note that the

appellant’s allegation below that agency employees discouraged her from

pursuing her concerns regarding the bank’s potential Volcker violation possibly

implicates the Government’s good name and interests or suggests agency

complicity in the private wrongdoing. Id. However, there is no indication that

she disclosed this potential implication or Government complicity to anyone

before raising it in this appeal. 12 See Aviles, 799 F.3d at 466 (stating that

disclosures may be protected if the “disclosure includes allegations of

government complicity in the private wrongdoing”); see also Voorhis v.

Department of Homeland Security, 116 M.S.P.R. 538, ¶ 30 (2011) (stating that

disclosures may be protected if they “implicate the reputation and good name of

the federal government”), aff’d, 474 F. App’x 778 (Fed. Cir. 2012). Accordingly,

the appellant has not shown that her first disclosure was protected.

The appellant’s fourth disclosure that a commercial real estate loan was

improperly collateralized because the borrower withheld information regarding an

environmental hazard on the property used as collateral from the appraiser,

resulting in a higher appraised value, also pertains to purely private misconduct.

IAF, Tab 33 at 17-18, 121, 124; HT at 64, 90, 143 (testimony of the appellant).

The appellant has not shown or alleged that any wrongdoing by the lender,

borrower, or appraiser implicates the Government’s good name or interests or that

any Government official was complicit in the alleged misconduct. Moreover, as

noted above, the administrative judge found, and we agree, that the appellant has

not shown that a reasonable person would believe that an incorrect appraisal of

real property evidences one of the categories of wrongdoing specified in section

2302(b)(8). ID at 9. Thus, the appellant has not shown that her fourth disclosure

was protected.

Finally, as noted above, the administrative judge found that the appellant’s

third disclosure that the FEIC provided false information to a bank official when

he stated that the agency consented to a proposal to backdate a legal document

was protected. ID at 5, 8-9. In so finding, he determined that the appellant

credibly testified that she raised this issue with her supervisor and gave specific

Even if the appellant disclosed the agency employees’ conduct in response to her

concerns about the bank’s potential Volcker Rule violation, she has not provided any

evidence reflecting that she exhausted such a disclosure before OSC. IAF, Tab 1

at 13-14; see Willis, 141 F.3d at 1144.

and detailed information that she reasonably believed this conduct evidenced a

violation of law, rule, or regulation. ID at 8-9. The agency appears to challenge

this finding on review, arguing that the appellant’s disagreement with the bank’s

proposed solution to its documentation error amounted to a policy disagreement,

rather than a disclosure of illegal bank activity. PFR File, Tab 1 at 23.

General philosophical or policy disagreements with agency decisions are

not protected unless the appellant has a reasonable belief that the disclosed

information separately evidences one of the covered categories of wrongdoing.

Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶¶ 8-9, 12 n.6 (2015); see

5 U.S.C. § 2302(a)(2)(D). Here, even if the appellant’s disclosure amounted to a

policy disagreement, we discern no basis to disturb the administrative judge’s

credibility-based determination that the appellant had a reasonable belief that

backdating a legal banking document evidenced a violation of law, rule, or

regulation. See Webb, 122 M.S.P.R. 248, ¶¶ 8-9; Purifoy v. Department of

Veterans Affairs, 838 F.3d 1367, 1373 (Fed. Cir. 2016) (finding that the Board

must defer to an administrative judge’s demeanor-based credibility

determinations “[e]ven if demeanor is not explicitly discussed”); see also Little v.

Department of Transportation, 112 M.S.P.R. 224, ¶ 4 (2009) (noting that when an

administrative judge has heard live testimony, her credibility determinations must

be deemed to be at least implicitly based upon witness demeanor). In addition,

we discern no basis to disturb the administrative judge’s determination that, by

consenting to the proposal, the FEIC was complicit in what the appellant

reasonably believed was a violation of law, rule, or regulation and further find

that this complicity implicates the Government’s interests and good name. ID

at 8; see Miller, 99 M.S.P.R. 175, ¶ 12; Arauz, 89 M.S.P.R. 529, ¶ 7; IAF, Tab 38

at 37. Accordingly, we agree with the administrative judge that the appellant’s

third disclosure was protected.

The appellant did not establish that her third disclosure was a contributing factor

in her termination.

As noted above, the appellant must next prove by preponderant evidence

that her disclosure was a contributing factor in a personnel action. Scoggins,

123 M.S.P.R. 592, ¶ 21. Personnel actions include, as relevant here, a

termination during a trial period. See 5 U.S.C. § 2302(a)(2)(A)(iii); Scalera v.

Department of the Navy, 102 M.S.P.R. 43, ¶ 15 (2006) (stating that a probationary

termination is a covered personnel action). The term “contributing factor” means

any disclosure that affects an agency’s decision to threaten, propose, take, or not

take a personnel action regarding the individual making the disclosure. Scoggins,

123 M.S.P.R. 592, ¶ 21. The most common way of proving the contributing

factor element is the “knowledge/timing test.” Id. Under that test, an appellant

can prove that her disclosure was a contributing factor in a personnel action

through evidence that the official taking the personnel action knew of the

whistleblowing disclosure and took the personnel action within a period of time

such that a reasonable person could conclude that the disclosure was a

contributing factor in the personnel action. Id. Once an appellant has satisfied

the knowledge/timing test, she has demonstrated that a protected disclosure was a

contributing factor in a personnel action. Id.

In the initial decision, the administrative judge found that the appellant

established by preponderant evidence that her third disclosure contributed to the

agency’s June 22, 2016 termination decision based on the knowledge/timing test,

explaining that the termination and disclosure were close in time and that the

supervisors were aware of the disclosure. ID at 10. The agency appears to

challenge this finding on review, arguing that the appellant’s supervisor decided

to terminate the appellant before the wrongdoing at issue in her third disclosure

even occurred. PFR File, Tab 1 at 24.

The wrongdoing at issue in the appellant’s third disclosure occurred on

June 16, 2016, when the FEIC emailed the bank official stating that the agency

did not object to the bank’s backdating proposal, and the appellant’s disclosure of

this wrongdoing therefore necessarily occurred sometime after that date. IAF,

Tab 38 at 37. However, as the agency correctly argues on review, the process to

remove the appellant began before the date of the wrongdoing—specifically, the

appellant’s supervisor requested a termination decision from human resources on

June 9, 2016, and a draft termination notice began circulating on June 14, 2016.

IAF, Tab 33 at 87-90, Tab 34 at 8. Nonetheless, the fact that the appellant’s

supervisor began the process to terminate the appellant before she made her third

disclosure does not necessarily preclude a finding of contributing factor. While

disclosures made after an action has been “initiated,” i.e., the decision to take the

action has been finalized even if not yet implemented, cannot be a contributing

factor in the action, an action that was only “contemplated and in preparation”

prior to a disclosure can serve as the predicate personnel action in an IRA appeal.

Fickie v. Department of the Army, 86 M.S.P.R. 525, ¶ 9 (2000) (citing Horton v.

Department of the Navy, 66 F.3d 279, 284 (Fed. Cir. 1995), superseded by statute

on other grounds as stated in Day, 119 M.S.P.R. 589, ¶¶ 14, 18). Here, the

agency’s decision to terminate the appellant was finalized on June 22, 2016, when

her supervisor issued her the dated and signed termination notice and, therefore,

any disclosures made before June 22, 2016, could have contributed to the

agency’s termination decision even if they were made after her supervisor

requested a termination decision from human resources. IAF, Tab 6 at 4, Tab 33

at 36, Tab 37 at 57, Tab 40 at 56.

It is undisputed that the appellant sent a June 23, 2016 email to the OCC

ethics attorney, with copies to the appellant’s supervisor and the FEIC, clearly

stating her objection to the FEIC’s consent to the bank’s proposal to backdate a

document. IAF, Tab 38 at 36. However, her disclosure in this email cannot serve

as a contributing factor to her termination because the termination decision had

already been finalized. See Horton, 66 F.3d at 284. Although the appellant

testified that, before she was terminated, she expressed her concern about the

bank’s backdating proposal to the FEIC and her supervisor and told the FEIC that

she would not “be complicit in the backdating of a legal document,” these

concerns pertain only to purely private wrongdoing by the bank. HT at 81-83,

103-04, 114-25, 139-43, 240-45 (testimony of the appellant). There is no

evidence or testimony reflecting that the appellant made her protected disclosure

containing allegations of Government involvement in the alleged private

wrongdoing—i.e., that the FEIC falsely informed the bank that the agency agreed

to its proposal to backdate a legal document—to anyone before June 23, 2016.

Accordingly, the administrative judge erred in finding that the appellant

established contributing factor based on knowledge/timing. 13 ID at 10.

The knowledge/timing test, however, is not the only way for an appellant to

satisfy the contributing factor standard. Dorney v. Department of the Army,

117 M.S.P.R. 480, ¶ 14 (2012). Rather, if the Board determines that an appellant

has failed to meet the knowledge/timing test, it must consider other evidence,

such as evidence pertaining to the strength or weakness of the agency’s reasons

for taking the personnel action, whether the whistleblowing was personally

directed at the official who took the action, and whether the individual had a

desire or motive to retaliate against the appellant. Id., ¶ 15.

In the initial decision, the administrative judge found as part of his clear

and convincing analysis that the agency did not have strong evidence in support

of its decision to terminate the appellant, noting that one of the bank examiners

who reviewed the appellant’s work testified that she had a good work ethic and

good technical skills. ID at 13. However, as the agency notes on review, the

administrative judge appeared to misrepresent the hearing testimony. PFR File,

Tab 1 at 12-19. Although the bank examiner testified that the appellant had a

good work ethic and “some technical skills,” she further testified that the

For the reasons discussed above, the appellant’s disclosure that the bank proposed to

backdate a document, without any reference to the FEIC’s involvement in the alleged

wrongdoing, is not a protected disclosure under the WPEA because it pertains to purely

private conduct. See Miller, 99 M.S.P.R. 175, ¶ 12; Arauz, 89 M.S.P.R. 529, ¶ 7.

appellant “did not meet expectations,” her “productivity was low,” “the products

that I did get were not fully developed,” and she “struggled with some basic

credit concepts.” HT at 260-63, 299 (testimony of a national bank examiner).

Another bank examiner who reviewed the appellant’s work testified that her

“credit skills were not commensurate with the complexities of this assignment”

and that she spent “an inordinate amount of time reviewing documentation,” and

he further stated in an email that, although “she may be able to work

independently in the future, [] it is going to take some time.” HT at 315

(testimony of a national bank examiner); IAF, Tab 38 at 77-78. In addition,

Assignment Evaluation Forms in the record reflect deficiencies in the appellant’s

technical, analytical, organizational, and communication and interpersonal skills.

IAF, Tab 38 at 30-32, 79-80, Tab 39 at 37-40. Thus, we find that the agency’s

reasons for terminating the appellant for inadequate performance were

sufficiently strong. Moreover, the appellant’s third disclosure was not personally

directed at her supervisor, who took the termination action. Finally, given that

the appellant’s supervisor was unaware of the appellant’s third disclosure at the

time she asked human resources to prepare the termination decision and at the

time she issued the decision, we discern no basis to find that she had a desire or

motive to retaliate against the appellant.

In light of the foregoing, we find that the appellant failed to prove by

preponderant evidence that her third disclosure contributed to the agency’s

decision to terminate her during her trial period and therefore that she failed to

establish a prima facie case of whistleblower reprisal. Accordingly, we deny the

appellant’s request for corrective action. 14

When, as here, the appellant has not established a prima facie case of whistleblower

reprisal, the Board may not proceed to address whether the agency proved by clear and

convincing evidence that it would have taken the same personnel action in the absence

of the protected disclosure. See Clarke v. Department of Veterans Affairs,

121 M.S.P.R. 154, ¶ 19 n.10 (2014) (holding 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 case), aff’d per curiam, 623 F. App’x 1016 (Fed. Cir. 2015).

NOTICE OF APPEAL RIGHTS 15

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:

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.

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. 16 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