The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES A. HEALY, DOCKET NUMBER
Appellant, DE-1221-18-0037-W-2
v.
DEPARTMENT OF HOMELAND DATE: June 28, 2024
SECURITY,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
James A. Healy , Wickenburg, Arizona, pro se.
Beverlei E. Colston , Esquire, Irving, Texas, for the agency.
Sung Lee , Houston, Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the Denver Field Office
for further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant was employed as a Supervisory Criminal Investigator with
the agency’s Immigration and Customs Enforcement (ICE) department at the
Homeland Security Investigations (HSI) office in Deming, New Mexico
(HSI Deming). Healy v. Department of Homeland Security, MSPB Docket No.
DE-1221-18-0037-W-1, Initial Appeal File (W-1 IAF), Tab 1 at 1; Healy
v. Department of Homeland Security, MSPB Docket No. DE-1221-18-0037-W-2
Appeal File (W-2 AF), Tab 21 at 150. HSI Deming is under the supervision of
the Special Agent in Charge (SAC) of HSI El Paso, Texas. W-2 AF, Tab 22
at 22.
According to the appellant, on April 21, 2015, he attended a meeting with
management officials, including the HSI El Paso SAC, the Deputy Special Agent
in Charge (DSAC), and the Assistant Special Agent in Charge (ASAC). W -1
IAF, Tab 7 at 4. During the meeting, those officials advised, among other things,
that there would be personnel restructuring at HSI Deming that would reduce the
manpower stationed there and reallocate it to nearby offices. Id. The appellant
expressed his concern that, if the restructuring were effected, ICE would have
wasted nearly $3 million to expand HSI Deming just 2 years earlier. W-1 IAF,
Tab 1 at 5, Tab 7 at 4. The appellant reiterated these concerns the next day,
April 22, 2015, with his supervisor, the ASAC. W-1 IAF, Tab 1 at 5, Tab 7 at 4.
On May 13, 2015, the appellant reported these same concerns to the
agency’s Office of Inspector General (OIG). W-1 IAF, Tab 7 at 4, 12, 15.
According to the appellant, the ASAC served him the following day with a letter
of counseling for his behavior during four prior incidents. W-2 AF, Tab 22
at 34-35. On May 19, 2015, the appellant proposed to the ASAC, DSAC, and
SAC that the agency could save expenses by closing HSI Deming entirely. W-1
3
IAF, Tab 7 at 4, 29-33. The appellant alleges that he subsequently received a
lower performance rating for Fiscal Year (FY) 2015, was demoted to a “fictitious
administrative liaison” position, was denied a reassignment and the possibility for
a promotion, was threatened with disciplinary action, was involuntarily
reassigned to another location, and was subjected to a hostile work environment. 2
W-1 IAF, Tab 1 at 5, Tab 7 at 9; W-2 AF, Tab 22 at 11-17.
On May 31, 2016, the appellant filed a complaint with the Office of Special
Counsel (OSC) claiming that the agency took the above-referenced actions in
retaliation for his reporting on the waste and abuse. W-1 IAF, Tab 1 at 13, 18.
On October 6, 2017, OSC informed the appellant that it was closing its inquiry
into his complaint and of his right to seek corrective action from the Board. W -2
AF, Tab 22 at 29. Shortly thereafter, the appellant filed the instant IRA appeal.
W-1 IAF, Tab 1.
After informing the appellant of his jurisdictional burden, the
administrative judge issued an initial decision dismissing the appeal for lack of
jurisdiction. W-2 AF, Tab 26, Initial Decision (ID) at 3-7. Specifically, he found
that the appellant’s proposal to close HSI Deming did not constitute a
nonfrivolous allegation of a protected disclosure under 5 U.S.C. § 2302(b)(8)(A). 3
ID at 4-5. He did not address the appellant’s alleged disclosures on April 21 and
22, 2015. Nor did he address the appellant’s OIG complaint. ID at 4-6.
The appellant has filed a petition for review, arguing that the administrative
judge failed to address his OIG complaint, and that his April 21 and 22, 2015
disclosures were protected because they contained allegations that the agency
violated several statutes and policies, and otherwise constituted allegations of a
2
Although the appellant uses the term “transfer,” the intra-agency position changes that
he describes would more properly be termed “reassignments.” See 5 C.F.R.
§ 210.102(b)(10), (12), (18).
3
The initial decision appears to contain a typographical error in referencing the correct
statutory provision. ID at 5. While the administrative judge referenced “5 U.S.C.
§ 2302(a)(2)(6D),” it appears that he intended to reference 5 U.S.C. § 2302(a)(2)(D),
which defines “disclosure” as contemplated by 5 U.S.C. § 2302(b)(8)(A).
4
gross waste of funds beyond a general policy dispute. Petition for Review (PFR)
File, Tab 1 at 6-11. The agency has responded, and the appellant has filed a reply
to the agency’s response. PFR File, Tabs 5, 6.
DISCUSSION OF ARGUMENTS ON REVIEW
An appellant may establish jurisdiction over his IRA appeal if he proves by
preponderant evidence that he exhausted his administrative remedy before OSC
and makes nonfrivolous allegations of the following: (1) he made a protected
whistleblowing disclosure under 5 U.S.C. § 2302(b)(8) or engaged in protected
activity under 5 U.S.C. §2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure
or activity was a contributing factor in the agency’s decision to take or fail to
take, or threaten to take or fail to take, a personnel action as defined by 5 U.S.C.
§ 2302(a)(2)(A). 5 U.S.C. §§ 1214(a)(3), 1221(e)(1); Salerno v. Department of
the Interior, 123 M.S.P.R. 230, ¶ 5 (2016); see Yunus v. Department of Veterans
Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001); 5 C.F.R. § 1201.57(a)(1), (b), (c)
(1). 4
The appellant exhausted his administrative remedy regarding his alleged
protected disclosures.
To satisfy the exhaustion requirement of 5 U.S.C. § 1214(a)(3), an
appellant must provide to OSC a sufficient basis to pursue an investigation that
might lead to corrective action. Chambers v. Department of Homeland Security,
2022 MSPB 8, ¶ 10. In order to properly exhaust his administrative remedies
before OSC, the appellant must show either: (1) OSC notified him that an
investigation concerning him has been terminated and no more than 60 days have
4
During the pendency of this appeal, the National Defense Authorization Act for Fiscal
Year 2018 (NDAA), Pub. L. No. 115-91, 131 Stat. 1283, was signed into law on
December 12, 2017. Section 1097 of the NDAA amended various provisions of Title 5
of the United States Code. Our decision to remand this appeal would be the same under
both pre- and post-NDAA law.
5
elapsed since notification was provided to him; or (2) 120 days have elapsed
since the appellant sought corrective action from OSC and he has not been
notified by OSC that it shall seek corrective action on his behalf. 5 U.S.C.
§ 1214(a)(3); Edwards v. Department of the Air Force, 120 M.S.P.R. 307, ¶ 15
(2013).
The administrative judge found that the appellant exhausted his
administrative remedy with OSC regarding the written proposal to close HSI
Deming and the April 21 and 22, 2015 disclosures regarding the alleged gross
waste of funds. ID at 4-5. The record confirms that the appellant’s OSC
complaint includes several references to the written proposal and the April 21 and
22, 2015 disclosures. W-2 AF, Tab 22 at 20-26, 29-30. Accordingly, we agree
with the administrative judge that the appellant exhausted his administrative
remedy in this regard.
The appellant nonfrivolously alleged that he made protected disclosures and
engaged in protected activity.
The appellant alleged that the written proposal to close HSI Deming and his
discussions with management on April 21 and 22, 2015, constituted protected
disclosures. W-1 IAF, Tab 7 at 4; PFR File, Tab 1 at 5-6. A protected disclosure
is a disclosure that an appellant reasonably believes evidences a 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)(A); Chambers v. Department of the Interior, 515 F.3d
1362, 1367 (Fed. Cir. 2008); Chavez v. Department of Veterans Affairs,
120 M.S.P.R. 285, ¶ 18 (2013). A nonfrivolous allegation of a protected
whistleblowing disclosure is an allegation of facts that, if proven, could show that
the appellant disclosed a matter that a reasonable person in his position would
believe evidenced wrongdoing under 5 U.S.C. § 2302(b)(8)(A). Salerno,
123 M.S.P.R. 230, ¶ 6. The appellant also argues that his OIG complaint was a
protected activity under 5 U.S.C. § 2302(b)(9)(C). PFR File, Tab 1 at 9.
6
The written proposal to close HSI Deming
The administrative judge found that the appellant’s proposal to close HSI
Deming did not constitute a nonfrivolous allegation of a protected disclosure
because the appellant could not reasonably believe that his assertions evidenced
any of the situations specified in 5 U.S.C. § 2302(b)(8), specifically, an abuse of
authority, gross mismanagement, or a gross waste of funds. 5 ID at 5-6. He
further found that the alleged disclosures were a general philosophical or policy
disagreement with agency decisions or actions, which are not protected. Id.;
5 U.S.C. § 2302(a)(2)(D).
We agree with the administrative judge that the agency’s decision to
restructure HSI Deming was the sort of classic discretionary management
judgment over which there might be subjective differences of opinion. See
Downing v. Department of Labor, 98 M.S.P.R. 64, ¶ 14 (2004)
(considering whether an agency’s decision to close a specific regional office
constituted a policy decision). Further, the administrative judge is correct that
the Board generally will not treat a policy disagreement as a protected disclosure.
See id. The Board has reasoned, however, that such a disclosure can still be
protected if it also constitutes an allegation of wrongdoing listed in section
2302(b)(8)(A). Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶ 8
(2015).
The appellant argues that he “termed his disclosures as a proposal because
the underlying matter of what [he] was reporting . . . potentially implicated
[agency] management for a violation of a Federal policy or law.” PFR File, Tab 1
at 6. However, nowhere in the proposal does he allege that the decisions
regarding HSI Deming’s operating status or staffing level violated any law, rule,
or regulation. W-1 IAF, Tab 7 at 29-33; 5 U.S.C. § 2302(b)(8). Nor did he allege
5
It appears that the administrative judge conflated all of the appellant’s claims
regarding disclosures of waste and instead focused exclusively on their content.
ID at 4-6. Based on our review of the initial decision, it seems that his findings relate
mostly to the written proposal to close HSI Deming. Id.
7
in the proposal that those agency decisions evidenced gross mismanagement, a
gross waste of funds, an abuse of authority, or a substantial and specific danger to
public health or safety. W-1 IAF, Tab 7 at 29-33. Rather, the proposal stated
that closing HSI Deming “would result in significant cost savings and a logistical
benefit to the agency.” Id. at 29. The proposal explains how the agency’s
proposed personnel changes would impact the efficiency of operations if HSI
Deming were to remain open, lists the benefits of closing it, and answers potential
questions regarding personnel, general operations, and the ability to carry out the
agency’s mission if HSI Deming were to close. Id. at 29-33. Therefore, we find
that the proposal does not contain any disclosures; the appellant was simply
proposing a solution to what he believed were problems caused by management’s
decisions. Id. Accordingly, we agree with the administrative judge that the
appellant failed to make a nonfrivolous allegation of a protected disclosure
concerning the proposal.
The April 21 and 22, 2015 disclosures
The appellant has alleged that on April 21, 2015, he disclosed that, by
implementing the staffing changes at HSI Deming as proposed by agency
management, the agency would have wasted almost $3 million in expanding HSI
Deming only 2 years earlier. W-1 IAF, Tab 1 at 5, Tab 7 at 4. He also alleges
that he made the same disclosure to the ASAC the following day. W -1 IAF,
Tab 7 at 4. The administrative judge did not address these disclosures, so we will
address them here.
The appellant’s disclosures can be categorized as an alleged gross waste of
funds. 6 5 U.S.C. § 2302(b)(8)(A)(ii). A gross waste of funds constitutes a more
than debatable expenditure that is significantly out of proportion to the benefit
6
In his petition for review, the appellant lists several statutes that he believes agency
officials also violated by its actions. PFR File, Tab 1 at 6-9. However, he has not
alleged that his disclosures to management on April 21 and 22, 2015, included
allegations that they violated the law; his alleged disclosures regarding those meetings
appear to be solely allegations of a gross waste of funds. W-1 IAF, Tab 7 at 4.
8
reasonably expected to accrue to the Government. Van Ee v. Environmental
Protection Agency, 64 M.S.P.R. 693, 698 (1994). The appellant need not prove
that the condition disclosed actually established a gross waste of funds.
Peterson v. Department of Veterans Affairs, 116 M.S.P.R. 113, ¶ 11 (2011).
Rather, the test for determining whether the appellant had a reasonable belief that
his disclosure was protected is whether 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 noted above. Id.
We find that the appellant has made a nonfrivolous allegation that he
reasonably believed that his disclosures of April 21 and 22, 2015, evinced a gross
waste of funds. In these disclosures, the appellant essentially stated that, in
restructuring HSI Deming, the Government was wasting the nearly $3 million that
it had just spent to expand the facility. See, e.g., Czarkowski v. Department of the
Navy, 87 M.S.P.R. 107, ¶ 11 (2000). Further, we find that a disinterested
observer with knowledge of the essential facts that the appellant knew or could
readily ascertain might reasonably conclude that the agency engaged in a gross
waste of funds. 7 We arrive at this finding by considering the appellant’s
knowledge of HSI Deming’s operations and staffing as a Supervisory Criminal
Investigator. W-1 IAF, Tab 1 at 5; W-2 AF, Tab 19 at 8-9.
Additionally, the appellant’s claim is sufficiently specific because he
alleges a relatively precise monetary amount—nearly $3 million—that he believes
to be a gross waste. W-1 IAF, Tab 1 at 5; see Linder v. Department of Justice,
122 M.S.P.R. 14, ¶ 14 (2014) (stating that disclosures must be specific and
detailed, not vague allegations of wrongdoing); cf. Frederick v. Department of
Veterans Affairs, 63 M.S.P.R. 563, 571 (1994) (finding that the appellant did not
7
In reaching this finding, we rely on the appellant’s arguments and not on the agency’s
potentially conflicting evidence in the record. See Hessami v. Merit Systems Protection
Board, 979 F.3d 1362, 1364, 1369 (Fed. Cir. 2020); Ingram v. Department of the Army,
114 M.S.P.R. 43, ¶ 10 (2010).
9
nonfrivolously allege a gross waste of funds, in part, because his disclosure
contained no indication as to the amount of funds involved). Accordingly, we
find that the appellant made a nonfrivolous allegation that he made protected
disclosures on April 21 and 22, 2015 regarding a gross waste of funds.
The OIG complaint
The appellant alleged below and again on review that he filed a complaint
with the OIG regarding what he believed constituted waste and abuse at HSI
Deming. W-2 AF, Tab 22 at 12, 58; PFR File, Tab 1 at 11. The administrative
judge did not address this complaint. Under 5 U.S.C. § 2302(b)(9)(C),
cooperating with or disclosing information to the OIG is considered protected
activity. Fisher v. Department of the Interior, 2023 MSPB 11, ¶ 8 (finding that
disclosures of information to an agency’s OIG are protected regardless of their
content, as long as such disclosures are made “in accordance with applicable
provisions of law”). Accordingly, we find that the appellant nonfrivolously
alleged that he engaged in a protected activity.
Based on the foregoing, we find that the appellant made a nonfrivolous
allegation that he made protected disclosures under 5 U.S.C. § 2302(b)(8) on
April 21 and 22, 2015, and engaged in protected activity under 5 U.S.C.
§ 2302(b)(9)(C) when he filed an OIG complaint.
The appellant nonfrivolously alleged that his protected disclosures and protected
activity were contributing factors to at least one personnel action.
The appellant nonfrivolously alleged that the agency took several
personnel actions against him.
The appellant claims that, in reprisal for making the above-referenced
protected disclosures and for engaging in protected activity, the agency took the
following actions: (1) issued him a letter of counseling; (2) gave him a lower
performance evaluation for FY 2015; (3) reassigned him to a “fictitious”
administrative liaison position that had significantly different duties than his
supervisory position; (4) denied him a self-funded reassignment; (5) denied him
10
the possibility of a promotion; (6) proposed a 3-day suspension; (7) directed his
reassignment to Washington state; and (8) created a hostile work environment.
W-1 IAF, Tab 1 at 5; W-2 AF, Tab 22 at 11-17.
The principles of exhaustion that apply to the allegations of protected
disclosures and activities discussed previously also apply to the purportedly
retaliatory personnel actions raised by the appellant. Schmittling v. Department
of the Army, 92 M.S.P.R. 572, ¶ 26 (2002) (stating that, in general, an appellant
has not exhausted his remedy with OSC when he did not raise before OSC the
personnel action he is appealing to the Board); Roach v. Department of the Army,
82 M.S.P.R. 464, ¶ 10 (1999) (finding that the Board lacked jurisdiction over a
personnel action that the appellant did not first raise with OSC). The
performance rating, the reassignment resulting in a significant change in duties,
the denial of a reassignment, and the directed reassignment were all exhausted
before OSC, W-1 IAF, Tab 1 at 18, 21-22; W-2 AF, Tab 22 at 29, and constitute
personnel actions under 5 U.S.C. §§ 2302(a)(2)(A)(ii), (iv), (viii), (xii).
The proposed disciplinary action and the denial of the possibility of a promotion
do not appear to have been exhausted with OSC, and we will not consider them
further. W-1 IAF, Tab 1 at 18, 21-22; W-2 AF, Tab 22 at 29.
Regarding the letter of counseling, we find that the appellant exhausted this
claim with OSC. W-2 AF, Tab 22 at 23, 29. The letter of counseling described
instances during which the ASAC believed that the appellant’s behavior was
inappropriate or hostile and cautioned that “another incident of this nature may
lead to formal disciplinary action being taken against [him].” Id. at 35. Thus, the
language was conditional in nature, clearly indicating that, if the appellant
engaged in future misconduct, he could be disciplined. Such a general statement
that future misconduct might result in disciplinary action remains a truism for any
employee, at any time. See Koch v. Securities & Exchange Commission, 48 F.
11
App’x 778, 787 (Fed. Cir. 2002) (nonprecedential) 8 (“A wide range of agency
rules, directives, and counseling measures contain the message, implicit or
explicit, that failure to follow those directives or to meet expectations may have
adverse consequences . . . . [N]ot all such general statements . . . constitute
actionable ‘threats’ to take adverse action within the meaning of the
Whistleblower Protection Act.”). 9 Moreover, there is no indication that the letter
was placed in the appellant’s Official Personnel File. W-2 AF, Tab 22 at 34-35.
To prevent a supervisor from providing a general reminder to an employee
that prospective misconduct could result in disciplinary action would hamper an
agency’s ability to effectively manage its workforce. Cf. Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981) (including the clarity with which
the employee was on notice of any rules that were violated in committing an
offense, or had been warned about the conduct in question, in the nonexhaustive
list of factors relevant to the penalty determination in adverse action cases).
Accordingly, we find that the letter of counseling does not constitute a personnel
action under 5 U.S.C. § 2302(a)(2)(A).
Regarding the appellant’s claim that he was subjected to a hostile work
environment, we find that the appellant exhausted this claim with OSC. W-1
IAF, Tab 1 at 23, 25, 27. The Board has recently clarified that, while the term
“hostile work environment” has a particular meaning in other contexts,
allegations of a hostile work environment may constitute a personnel action under
the statute only if they meet the statutory criteria, i.e., constitute a significant
change in duties, responsibilities, or working conditions. 5 U.S.C. § 2302(a)(2)
8
The Board may follow a nonprecedential decision of the U.S. Court of Appeals for the
Federal Circuit when, as here, it finds its reasoning persuasive. LeMaster v.
Department of Veterans Affairs, 123 M.S.P.R. 453, ¶ 11 n. 5 (2016).
9
This appeal may be distinguished from the Board’s decision in Campo v. Department
of the Army, 93 M.S.P.R. 1, ¶¶ 7-8 (2002), because in that case the agency issued a
memorandum of warning informing an employee that she would be charged with
insubordination or creating a disturbance if she continued to make purportedly
unfounded allegations, the substance of which comprised her protected disclosures.
Such is not the case here.
12
(A)(xii); Skarada v. Department of Veterans Affairs, 2022 MSPB 17, ¶¶ 15-16.
Although a “significant change” in working conditions should be interpreted
broadly, 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.
Here, the appellant alleged that the ASAC singled him out in meetings,
publicly intimidated and threatened him, poked his finger directly into his face,
yelled at him, and called him names like “cry baby.” W-1 IAF, Tab 7 at 7, 9. He
also alleged that within weeks of being assigned as his supervisor, the ASAC
issued him the letter of counseling. W-2 AF, Tab 22 at 11. He also claimed that
the ASAC issued the FY 2015 performance evaluation and reassigned him to an
administrative liaison position with diminished duties. W-1 IAF, Tab 7 at 6. He
asserted that the environment became so “hostile, untenable, and dangerous” that
he communicated to the agency that he would accept any reassignment, even if it
was to an unrequested location. Id. at 9. Given the broad interpretation afforded
the term “significant change in duties, responsibilities, or working conditions,”
Ingram v. Department of the Army, 116 M.S.P.R. 525, ¶ 4 (2011), we find that the
appellant nonfriovlously alleged that the agency’s actions, individually and
collectively, had an impact on the quality of his working conditions, and
therefore, constituted a hostile work environment under 5 U.S.C. § 2302(a)(2)(A)
(xii).
In sum, we find that the following alleged actions constitute personnel
actions as defined by 5 U.S.C. § 2302(a)(2)(A) and were properly exhausted with
OSC: (1) the FY 2015 performance evaluation; (2) the reassignment resulting in
a significant change in duties; (3) the denial of a reassignment; (4) the directed
reassignment; and (5) the hostile work environment.
13
The appellant nonfrivolously alleged that his protected disclosures
and protected activity were contributing factors in the
above-referenced personnel actions.
We now consider whether the appellant nonfrivolously alleged that his
protected disclosures and protected activity were contributing factors to the
personnel actions discussed above. Salerno, 123 M.S.P.R. 230, ¶ 5. To satisfy
the contributing factor criterion at the jurisdictional stage, an appellant only need
raise a nonfrivolous allegation that the fact of, or the content of, the protected
disclosure or protected activity was one factor that tended to affect the personnel
action in any way. Id., ¶ 13. One way to establish this criterion is the
knowledge/timing test, under which an employee may nonfrivolously allege that
the disclosure or activity was a contributing factor in a personnel action through
circumstantial evidence, such as evidence that the official who took the personnel
action knew of the disclosure or activity and that the personnel action occurred
within a period of time such that a reasonable person could conclude that the
disclosure or activity was a contributing factor in the personnel action. Id.
Here, the appellant alleged that the ASAC was responsible for the
performance rating, the reassignment that resulted in a significant change in
duties, and the hostile work environment. W -1 IAF, Tab 7 at 6, 9. The
performance rating was issued on October 15, 2015, id. at 6, the reassignment
resulting in a significant change of duties was imposed on January 8, 2016, id.,
and the hostile work environment began in April 2015, and culminated during an
altercation between the appellant and the ASAC on May 21, 2016, id. at 9. The
ASAC was present for the April 21 and 22, 2015 disclosures, and the appellant
has alleged that his “chain of command had knowledge of his whistleblower
complaints.” W-2 AF, Tab 22 at 12, 15.
Because the appellant has alleged that the performance rating, the
reassignment resulting in a significant change in duties, and the hostile work
environment all occurred within approximately 1 year of the April 2015
14
disclosures, and that his chain of command, which included the ASAC as his
first-level supervisor, had knowledge of these disclosures, we find that he
nonfrivolously alleged that the protected disclosures were a contributing factor in
these actions. See Salerno, 123 M.S.P.R. 230, ¶ 13; Mastrullo v. Department of
Labor, 123 M.S.P.R. 110, ¶ 21 (2015) (stating that a personnel action that occurs
within 1 to 2 years of the protected disclosures satisfies the knowledge/timing
test).
The appellant also alleged that the performance rating, reassignment
resulting in a significant change in duties, and hostile work environment occurred
within 1 year of the May 13, 2015 OIG complaint and that his chain of command
had knowledge of it. W-1 IAF, Tab 7 at 6, 9; W-2 AF, Tab 22 at 11. We find
that this also constitutes a nonfrivolous allegation that the OIG complaint was a
contributing factor in the FY 2015 performance rating, the reassignment resulting
in a significant change in duties, and the hostile work environment. See Salerno,
123 M.S.P.R. 230, ¶ 13; Mastrullo, 123 M.S.P.R. 110, ¶ 21.
Regarding the denial of the reassignment, the appellant alleged that another
DSAC 10 denied the appellant a self-funded reassignment to Albuquerque, New
Mexico in February 2016. W-1 IAF, Tab 7 at 7. Thus, this personnel action
occurred within 1 year of the appellant’s alleged protected disclosures and
protected activity. Id. Concerning the knowledge prong, the appellant has not
specifically alleged that this DSAC was aware of his April 21 and 22, 2015
disclosures and OIG complaint, but he has alleged that his “chain of command”
and “agency management” were aware of them. W-2 AF, Tab 22 at 13-14. The
agency has confirmed that this DSAC was the appellant’s second-line supervisor.
W-2 AF, Tab 18 at 6. At the jurisdictional stage, we find this allegation
sufficient to meet the nonfrivolous allegation standard. See 5 C.F.R. § 1201.4(s).
Accordingly, we find that the appellant nonfrivolously alleged that his April 21
10
The DSAC whom the appellant alleges denied his reassignment is a different DSAC
than the one present at the April 21, 2015 meeting and through whom he submitted his
proposal to close HSI Deming. W-1 IAF, Tab 7 at 6, 29.
15
and 22, 2015 disclosures and OIG complaint contributed to the agency’s decision
to deny the appellant’s request for reassignment. See Salerno, 123 M.S.P.R. 230,
¶ 13; Mastrullo, 123 M.S.P.R. 110, ¶ 21.
Regarding the effectuated reassignment, the appellant alleges that the
executive associate director (EAD) directed his reassignment to Blaine,
Washington on June 13, 2016. W-1 IAF, Tab 1 at 8. Although this reassignment
occurred within 1-2 years of the alleged protected disclosures and protected
activity, it is unclear from the pleadings whether the EAD was aware of them.
Again, the appellant has alleged that his “chain of command” and “agency
management” were aware of his April 21 and 22, 2015 disclosures and OIG
complaint. W-2 AF, Tab 22 at 11, 16-17. Although it is unclear whether this
includes the EAD, we resolve the ambiguity in the appellant’s allegations in his
favor and find his allegations sufficient to establish jurisdiction over this claim.
See Ingram v. Department of the Army, 114 M.S.P.R. 43, ¶ 10 (2010) (stating that
any doubt or ambiguity as to whether the appellant made nonfrivolous
jurisdictional allegations should be resolved in favor or finding jurisdiction).
Because we find that the appellant met the knowledge/timing test at this stage of
the proceedings, we find that he nonfrivolously alleged that his April 21 and 22,
2015 disclosures and OIG complaint were contributing factors in the directed
reassignment. See Salerno, 123 M.S.P.R. 230, ¶ 13; Mastrullo, 123 M.S.P.R.
110, ¶ 21.
In sum, we find that the appellant nonfrivolously alleged that he made
protected disclosures and engaged in protected activity that were contributing
factors in the above-discussed personnel actions, thereby establishing the Board’s
jurisdiction over his IRA appeal. See Salerno, 123 M.S.P.R. 230, ¶ 5.
16
The appellant is entitled to a hearing on the merits.
Because the appellant established jurisdiction over his IRA appeal, we
remand the case for a hearing on the merits. 11 Generally, an appellant must
establish a prima facie case of whistleblower retaliation by proving by
preponderant evidence that he made a protected disclosure or engaged in a
protected activity that was a contributing factor in a personnel action taken
against him. 5 U.S.C. § 1221(e)(1); Lu v. Department of Homeland Security,
122 M.S.P.R. 335, ¶ 7 (2015). If he makes out a prima facie case, then 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. 5 U.S.C. § 1221(e)(1)-(2); Lu, 122 M.S.P.R. 335, ¶ 7.
11
In the initial decision, the administrative judge stated that “when an appellant makes
a nonfrivolous allegation of Board jurisdiction, the appellant is entitled to a hearing on
the jurisdictional question.” ID at 2. In the appellant’s petition for review, he asserts
that he is “entitled under the law to a jurisdictional hearing.” PFR File, Tab 1 at 20.
We clarify that when an appellant exhausts his administrative remedy with OSC and
makes a nonfrivolous allegation that he made a protected disclosure or engaged in a
protected activity that was a contributing factor in a personnel action, he is entitled to a
hearing on the merits. Graves v. Department of Veterans Affairs, 123 M.S.P.R. 434,
¶ 22 (2016).
17
ORDER
For the reasons discussed above, we grant the appellant’s petition for
review, vacate the initial decision, and remand this case to the Denver Field
Office for further adjudication in accordance with this Remand Order. 12
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
12
In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.