cautioning that the Board many not deny the appellant a right to a hearing by “crediting the agency’s interpretation of the evidence as to . . . whether the disclosures were a contributing factor to an adverse personnel action”
How later courts described this case
- cautioning that the Board many not deny the appellant a right to a hearing by “crediting the agency’s interpretation of the evidence as to . . . whether the disclosures were a contributing factor to an adverse personnel action”
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WENDY ALGUARD, DOCKET NUMBER
Appellant, SF-1221-20-0275-W-1
v.
DEPARTMENT OF AGRICULTURE, DATE: July 18, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Wendy Alguard , Yakima, Washington, pro se.
Lori A. Ittner , Washington, D.C., for the agency.
Sandy S. Francois , Kenner, Louisiana, 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 her individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review,
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
REVERSE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
DISCUSSION OF ARGUMENTS ON REVIEW
On February 21, 2020, the appellant filed three separate appeals with the
Board, including the instant appeal. Initial Appeal File (IAF), Tab 1; Alguard v.
Department of Agriculture, MSPB Docket No. SF-20-0752-0274-I-1, Initial
Appeal File (0274 IAF), Tab 1; Alguard v. Department of Agriculture, MSPB
Docket No. SF-20-1221-0270-W-1, Initial Appeal File (0270 IAF), Tab 1. 2 Here,
the appellant alleged that, in 2016, the agency failed to select her for a position
for which she had applied because she had filed a “complaint regarding
reprocessing of moldy applesauce at a company where [she] was assigned.” IAF,
Tab 9 at 5. With her initial appeal form, the appellant provided two letters from
the Office of Special Counsel (OSC) dated December 19, 2019, and February 20,
2020. IAF, Tab 1 at 7-9. The letters indicated that, in 2016, the appellant had
filed an OSC complaint involving, among other things, her disclosure of
“potentially deadly (moldy) applesauce” and her 2016 nonselection. Id. at 7.
OSC indicated that it was closing its investigation into her allegations, and it
provided the appellant with her Board appeal rights. Id. at 8-9.
To establish jurisdiction in a typical IRA appeal under the Whistleblower
Protection Enhancement Act of 2012 (WPEA), 3 an appellant must show by
2
In her other Board appeals, the appellant (1) challenged her 2011 removal from the
agency, 0274 IAF, Tab 1 at 3, 5, 7, Tab 7 at 5, and (2) alleged that the agency had
retaliated against her for filing complaints with the agency’s Office of the Inspector
General, 0270 IAF, Tab 1 at 3, 5. The former appeal was dismissed on the basis of res
judicata, 0274 IAF, Tab 21, Initial Decision at 1-2, 4 (Apr. 13, 2020), and the latter
appeal is currently pending in the Western Regional Office.
3
Pursuant to the WPEA, effective December 27, 2012, Congress expanded the grounds
on which an appellant may file an IRA appeal with the Board. Rebstock Consolidation
v. Department of Homeland Security, 122 M.S.P.R. 661, ¶ 5 (2015). Under the WPEA,
the date of the purported retaliation, and not the disclosure, is dispositive in
determining whether pre-WPEA or post-WPEA standards apply. See Hooker v.
Department of Veterans Affairs, 120 M.S.P.R. 629, ¶¶ 13, 15 (2014). Here, because the
alleged retaliation occurred in 2016, after the effective date of the WPEA, the WPEA
3
preponderant evidence 4 that she exhausted her remedies before OSC and make
nonfrivolous allegations of the following: (1) she made a disclosure described
under 5 U.S.C. § 2302(b)(8) or engaged in a 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). Corthell v. Department of
Homeland Security, 123 M.S.P.R. 417, ¶ 8 (2016), overruled on other grounds by
Requena v. Department of Homeland Security , 2022 MSPB 39. A nonfrivolous
allegation is an assertion that, if proven, could establish the matter at issue.
5 C.F.R. § 1201.4(s). The U.S. Court of Appeals for the Federal Circuit has
found that, in the context of an IRA appeal, a nonfrivolous allegation is an
allegation of “sufficient factual matter, accepted as true, to state a claim that is
plausible on its face.” Hessami v. Merit Systems Protection Board, 979 F.3d
1362, 1364, 1367 (Fed. Cir. 2020). Any doubt or ambiguity as to whether the
appellant made nonfrivolous jurisdictional allegations should be resolved in favor
of affording the appellant a hearing. Drake v. Agency for International
Development, 103 M.S.P.R. 524, ¶ 11 (2006).
Here, in the initial decision, the administrative judge found that the
appellant had made a nonfrivolous allegation that, in 2011, she made a protected
disclosure described under 5 U.S.C. § 2302(b)(8)(A). IAF, Tab 16, Initial
Decision (ID) at 5. She also found that the appellant had made a nonfrivolous
allegation of a personnel action under 5 U.S.C. § 2302(a), i.e., that, in 2016, the
agency had failed to select her for a position for which she had applied. ID
at 5-6. The administrative judge also concluded that the appellant had exhausted
her administrative remedies before OSC regarding these claims. Id. She found,
applies to this appeal. The relevant holdings of the pre-WPEA case law that we have
cited herein have not been affected by the WPEA.
4
Preponderant 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).
4
however, that the appellant had failed to establish Board jurisdiction because she
had failed to make a nonfrivolous allegation that her protected disclosure had
contributed to her nonselection. ID at 5-7. In so finding, the administrative
judge reasoned that, although the record showed that the selecting official was
aware of the appellant’s protected disclosure, because the appellant’s
nonselection had occurred 5 years after the same, the appellant had failed to
satisfy the knowledge/timing test. ID at 6-7. The administrative judge also
implicitly concluded that the appellant’s nonselection was precipitated by factors
other than her disclosure insofar as she stated that the agency’s documentary
evidence evinced that the appellant “was on the non -competitive certificate, while
the selectee was on the competitive certificate for current employees,” ID at 7,
and that the appellant had been “positively recognized for making the disclosure,”
ID at 7 n.6.
For the following reasons, we find that the administrative judge
erroneously applied the nonfrivolous allegation standard regarding the
contributing factor criterion, we find jurisdiction, and we remand the appeal for
adjudication of the merits.
To satisfy the contributing factor criterion at the jurisdictional stage of an
IRA appeal, an appellant only need raise a nonfrivolous allegation that the fact or
the content of the protected disclosure was one factor that tended to affect the
personnel action in any way. Bradley v. Department of Homeland Security ,
123 M.S.P.R. 547, ¶ 13 (2016). Although one way to satisfy this criterion is the
knowledge/timing test, see generally 5 U.S.C. § 1221(e); Mastrullo v. Department
of Labor, 123 M.S.P.R. 110, ¶¶ 18, 21 (2015), the Board has found that, if an
appellant fails to satisfy this test, it shall consider other evidence, such as the
strength or weakness of the agency’s reasons for taking the personnel action,
whether the whistleblowing was personally directed at the individuals taking the
personnel action, and whether these individuals had a desire or motive to retaliate
5
against the appellant, e.g., Dorney v. Department of the Army, 117 M.S.P.R. 480,
¶ 15 (2012).
Here, the appellant alleged that the agency failed to select her because of a
“complaint regarding reprocessing of moldy applesauce at a company where [she]
was assigned.” IAF, Tab 9 at 5. She also alleged that “[t]he [a]gency did not
follow proper procedure and report the potentially deadly applesauce to the Food
and Drug Administration.” Id. We considered these allegations in conjunction
with the appellant’s filings in her other Board appeals filed on February 21, 2020,
and, in so doing, we find that she satisfied the contributing factor jurisdictional
criterion. See Hessami, 979 F.3d at 1369 n.5 (explaining that, in determining
whether an appellant has made a nonfrivolous allegation in an IRA appeal, the
Board may consider matters incorporated by reference, matters integral to the
appellant’s claim, and matters of public record).
In a simultaneously filed Board appeal, the appellant averred that, while
working for the agency in 2011, she reported to the U.S. Food and Drug
Administration (FDA) the unsafe and unlawful actions of a private company
involving the reprocessing of moldy applesauce, which prompted the FDA to take
immediate action against the company. 0274 IAF, Tab 1 at 5. She explained that
she had previously alerted her supervisor to these safety issues “from 2009
through early 2011” but that neither he nor agency management had taken any
action to protect the safety of the public. Id. The appellant explained that her
disclosure had resulted in the cancellation of a lucrative contract for the agency.
Id. Here, the appellant alleged that her supervisor in 2011 was the same agency
official that failed to select her in 2016. IAF, Tab 1 at 5.
Thus, the appellant has made a nonfrivolous allegation that her former
supervisor, the selecting official, harbored a retaliatory motive against her
because of her disclosure. See Powers v. Department of the Navy, 69 M.S.P.R.
150, 156 (1995) (stating that, if an appellant fails to satisfy the knowledge/timing
test, the Board shall, consistent with the intent of Congress, consider evidence
6
such as whether the individuals that took the personnel action harbored retaliatory
motive). Moreover, she has made a nonfrivolous allegation that the agency may
have been motivated to retaliate against her insofar as her disclosure allegedly
resulted in a loss of agency revenue. See Dorney, 117 M.S.P.R. 480, ¶¶ 11-12
(explaining that, insofar as the party before the Board is the agency, not its
individual officials, a lack of actual knowledge by a single official is not
dispositive). To the extent the administrative judge relied on the agency’s
characterization of its documentary evidence to find that the appellant’s
nonselection was precipitated by factors other than her disclosure, ID at 7 & n.6,
her finding was erroneous, see Hessami, 979 F.3d at 1369 (cautioning that the
Board many not deny the appellant a right to a hearing by “crediting the agency’s
interpretation of the evidence as to . . . whether the disclosures were a
contributing factor to an adverse personnel action”).
Accordingly, we find that the appellant made a nonfrivolous allegation that
her protected disclosure contributed to her nonselection and, therefore, is entitled
to her requested hearing and a decision on the merits of her appeal. IAF, Tab 9
at 5; see Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016).
Prior to conducting a hearing, the administrative judge shall afford the parties a
reasonable opportunity to complete discovery and order the parties to submit any
other evidence that she deems necessary to adjudicate the merits of this appeal.
Lewis v. Department of Defense, 123 M.S.P.R. 255, ¶ 14 (2016).
7
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.