The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TONYA RICE, DOCKET NUMBER
Appellant, AT-1221-23-0154-W-1
v.
DEPARTMENT OF THE NAVY, DATE: August 28, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Shaun C. Southworth , Esquire, Atlanta, Georgia, for the appellant.
Steven P. Hester , Esquire, and Jessica Dawn Vazquez , North Charleston,
South Carolina, 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
¶1 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. We
REVERSE the administrative judge’s finding that the appellant failed to make a
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
nonfrivolous allegation that her Office of Inspector General (OIG) complaint was
a contributing factor in the agency’s decision to maintain a hostile work
environment, AFFIRM the remainder of the initial decision, and REMAND the
appeal to the Atlanta Regional Office for further adjudication in accordance with
this Remand Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 To establish jurisdiction in an IRA appeal, an appellant must show by
preponderant evidence that she exhausted her remedies before the Office of
Special Counsel (OSC), and make nonfrivolous allegations 2 that: (1) she made a
disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity
described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the
disclosure or protected activity was a contributing factor in the agency’s decision
to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a).
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; see Yunus v. Department of Veterans Affairs, 242 F.3d 1367,
1371 (Fed. Cir. 2001).
¶3 The appellant does not challenge, and we discern no error with, the
administrative judge’s following findings: (1) she exhausted her administrative
remedy with OSC; (2) she did not nonfrivolously allege that her equal
employment opportunity complaint and grievance constituted activity protected
by 5 U.S.C. § 2302(b)(9); (3) she nonfrivolously alleged that her OIG complaint
was protected by 5 U.S.C. § 2302(b)(9); and (4) the only personnel action that
occurred after the OIG complaint was the agency allegedly maintaining a hostile
work environment. Initial Appeal File (IAF), Tab 15, Initial Decision (ID)
at 5-10. We therefore affirm the initial decision in these regards.
2
A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).
3
¶4 We have considered the appellant’s claim on review that she disclosed an
abuse of authority in her August 2019 and December 2019 disclosures. Petition
for Review (PFR) File, Tab 1 at 5-8. Although the appellant asserts that there
was no legitimate reason for the communications restrictions and that these
restrictions harmed her and made it more difficult for her to do her job, IAF,
Tab 13 at 5-6, her own pleadings reflect that the communications restrictions
were imposed, at least in part, due to interpersonal conflicts between her and
other agency employees and were temporary measures. IAF, Tab 1 at 32, 107-09,
111, 118. A disinterested observer could not reasonably conclude that the
described events—involving an agency’s temporary use of communications
restrictions to address interpersonal conflicts—evidenced an abuse of authority.
See Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 15 (2014); Shannon
v. Department of Veterans Affairs, 121 M.S.P.R. 221, ¶¶ 22, 28 (2014); Wheeler
v. Department of Veterans Affairs, 88 M.S.P.R. 236, 241, ¶ 13 (2001) (stating that
an abuse of authority occurs when there is an arbitrary or capricious exercise of
power by a Federal official or employee that adversely affects the rights of any
person or that results in personal gain or advantage to himself or to preferred
other persons). Therefore, we affirm the administrative judge’s finding that the
appellant failed to nonfrivolously allege that she disclosed an abuse of authority
in her August 2019 and December 2019 disclosures.
¶5 We have also considered the appellant’s argument that the administrative
judge erred when he found that she did not nonfrivolously allege that her OIG
complaint was a contributing factor in the agency’s decision to maintain the
hostile work environment. PFR File, Tab 1 at 8-9; ID at 9-11. In her response to
the order to show cause, the appellant made the following allegations regarding
contributing factor:
Because I reached out to [the OIG investigator] when the [letter of
reprimand] appeal decision was due and after contacting [the OIG
investigator], I received the decision from [the Competency Director
on the grievance] with [a Labor and Employee Relations (LER)
4
supervisor] on copy on/around early April 2020. Timing of actions.
In my appeal to employee relations, I notified them I had went [sic]
to IG. See Tab 5 at p. 18. “IG meeting 1/2/20. On my appeal to
[L]ER, I sent follow on email to notify them I had inquired with the
IG. HR Leadership is aware.” See Tab 1 at p. 111.
IAF, Tab 13 at 7.
¶6 A whistleblowing disclosure or protected activity is a contributing factor if
it in any way affects an agency’s decision to take a personnel action. Dorney v.
Department of the Army, 117 M.S.P.R. 480, ¶ 14 (2012). One way to establish
contributing factor is the knowledge/timing test. Wadhwa v. Department of
Veterans Affairs, 110 M.S.P.R. 615, ¶ 12, aff’d per curiam, 353 F. App’x 435
(Fed. Cir. 2009). Under that test, an appellant can prove the contributing factor
element through evidence showing that the official taking the personnel action
knew of the disclosure and that the personnel action occurred within a period of
time such that a reasonable person could conclude that the disclosure was a
contributing factor in the personnel action. Id. An appellant also may satisfy the
knowledge prong of the knowledge/timing test by proving that the official taking
the action had constructive knowledge of the protected disclosure, even if the
official lacked actual knowledge. Nasuti v. Department of State, 120 M.S.P.R.
588, ¶ 7 (2014). An appellant may establish constructive knowledge by showing
that an individual with actual knowledge of the disclosure influenced the official
accused of taking the retaliatory action. Id. Importantly, the respondent in a
corrective action appeal is the agency, not its individual officials; therefore, a
lack of actual knowledge by a single official is not dispositive to the issue of
contributing factor. Id.; Dorney, 117 M.S.P.R. 480, ¶ 12.
¶7 We are not persuaded that the “[t]iming of actions” or temporal proximity
satisfies the appellant’s burden to prove knowledge under the knowledge/timing
test. IAF, Tab 13 at 7; PFR File, Tab 1 at 9. However, the appellant asserted that
she advised LER that she went to the OIG, she spoke to LER about several
workplace issues (including a hostile work environment, a letter of reprimand,
5
and a grievance), and LER “work[s] for management.” IAF, Tab 1 at 20, 112-13,
Tab 5 at 16-18, Tab 13 at 7. Reading her pleadings together, the appellant
essentially alleged that an LER employee with whom she had spoken about her
OIG complaint would have spoken with her supervisors or managers about the
fact that she went to OIG or advised them on workplace issues in which she was
involved, and at least some of these supervisors or managers were responsible for
maintaining a hostile work environment. The burden to make a nonfrivolous
allegation is a low one, and the Board has held that it must resolve any doubt or
ambiguity in the appellant’s allegations in favor of finding jurisdiction.
Usharauli v. Department of Health and Human Services, 116 M.S.P.R. 383, ¶ 19
(2011); Jessup v. Department of Homeland Security, 107 M.S.P.R. 1, ¶ 10 (2007).
Given this precedent, we conclude that the appellant satisfied her burden to make
nonfrivolous allegations of contributing factor under the knowledge/timing test. 3
See Jessup, 107 M.S.P.R. 1, ¶ 10 (finding that the appellant made a nonfrivolous
allegation that the agency decisionmakers knew of the disclosure via the Chief of
Staff or were influenced by the Chief of Staff, who knew of the disclosure).
¶8 Based on the foregoing, we find that the appellant nonfrivolously alleged
that her OIG complaint was a contributing factor in the maintenance of the hostile
work environment, and thus, the Board has jurisdiction over her IRA appeal.
Accordingly, we remand the appeal to the Atlanta Regional Office, where the
appellant is entitled to a hearing on the merits, which she must prove by
preponderant evidence. See 5 U.S.C. § 1221(e)(1); Lu v. Department of
Homeland Security, 122 M.S.P.R. 335, ¶ 7 (2015). If the appellant meets her
burden of proving by preponderant evidence that her OIG complaint was a
contributing factor in the agency’s maintenance of a hostile work environment,
the agency shall have the opportunity to prove, by clear and convincing evidence,
that it would have taken the same personnel action in the absence of the
3
The appellant’s allegation that the hostile work environment started in August 2019,
and continued following her OIG complaint, IAF, Tab 13 at 5-7, satisfies her burden to
prove the timing prong of the knowledge/timing test at the jurisdictional stage.
6
appellant’s OIG complaint. See 5 U.S.C. § 1221(e)(2); Carr v. Social Security
Administration, 185 F.3d 1318, 1322-23 (Fed. Cir. 1999); Lu, 122 M.S.P.R. 335,
¶ 7.
ORDER
¶9 For the reasons discussed above, we remand this case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.