Opinion

James M DeNofrio v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Sep 19, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JAMES MICHAEL DENOFRIO, DOCKET NUMBER

Appellant, PH-1221-19-0038-W-1

DEPARTMENT OF VETERANS DATE: September 19, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Stephen D. Wicks , Esquire, Altoona, Pennsylvania, for the appellant.

Marcus S. Graham , Esquire, Pittsburgh, Pennsylvania, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner recused himself and did not participate in the adjudication

of this appeal.

FINAL ORDER

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

denied his request for corrective action in this individual right of action (IRA)

appeal. Generally, we grant petitions such as this one only in the following

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

circumstances: the initial decision contains erroneous findings of material fact;

the initial decision is based on an erroneous interpretation of statute or regulation

or the erroneous application of the law to the facts of the case; the administrative

judge’s rulings during either the course of the appeal or the initial decision

were not consistent with required procedures or involved an abuse of discretion,

and the resulting error affected the outcome of the case; or new and material

evidence or legal argument is available that, despite the petitioner’s due

diligence, was not available when the record closed. Title 5 of the Code of

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully

considering the filings in this appeal, we conclude that the petitioner has not

established any basis under section 1201.115 for granting the petition for review.

Therefore, we DENY the petition for review. Except as expressly MODIFIED to

supplement the administrative judge’s findings of fact and apply the appropriate

analytical framework, we AFFIRM the initial decision.

BACKGROUND

At the time relevant to this appeal, the appellant held the position of

Administrative Officer for an agency facility in Altoona, Pennsylvania. Initial

Appeal File (IAF), Tab 1 at 1. He has filed multiple complaints with the Office

of Special Counsel (OSC), alleging that he was subject to whistleblower reprisal.

Id. at 8. In a letter dated September 2018, OSC closed one of those complaints

and advised the appellant of his Board appeal rights. Id. at 34-37. This timely

IRA appeal followed. Id. at 1-6. After developing the record and holding a 3-day

hearing, the administrative judge issued an initial decision. IAF, Tab 53, Initial

Decision (ID).

The administrative judge first found that the appellant met his burden of

proving that he made protected disclosures and engaged in protected activities.

ID at 4-5, 23-24. As further detailed in the initial decision, this included (1) prior

OSC complaints, (2) prior Board appeals, (3) an email to Congress about the

Altoona Director instructing staff to not provide testimony or respond to

subpoenas, (4) emails to Congressional staff about health and safety concerns at

the Altoona facility, and (5) a complaint with the agency’s Office of Inspector

General (OIG) alleging a violation of policy regarding the timely discharge of

patients. ID at 4-5.

The administrative judge next found that the appellant proved the

contributing factor criterion for two nonselections and an alleged hostile work

environment. ID at 24-25. Nevertheless, he found that the appellant was not

entitled to corrective action.

Regarding the nonselections, the administrative judge found that the agency

rebutted the appellant’s prima facie case of reprisal. ID at 25-30. Regarding the

hostile work environment claim, the administrative judge found that most of the

alleged harassment was not attributable to the appellant’s protected disclosures or

activities, ID at 30-35, and the only exception did not rise to the level of

actionable harassment, ID at 35-37.

The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. In this petition, the appellant challenges the administrative judge’s

findings regarding one of the two nonselections adjudicated in this appeal—his

nonselection to the Program Specialist position. 2 Id. at 4-8, 17-18. He also

challenges the administrative judge’s finding regarding his claim of a retaliatory

hostile work environment. Id. at 8-19. Finally, the appellant submits new

evidence, id. at 25-68, along with arguments that we should consider this new

evidence for the first time on review, id. at 19-24. The agency has filed a

response to the appellant’s petition. PFR File, Tab 3.

Because the appellant has not presented any arguments regarding his nonselection for

the Program Analyst position and the administrative judge’s findings about the same,

we will not revisit that matter.

DISCUSSION OF ARGUMENTS ON REVIEW

After establishing jurisdiction in an IRA appeal, an appellant has the

burden of proving by preponderant evidence 3 that (1) he made a protected

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).

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

appellant meets this burden, the agency is given an opportunity to prove, by clear

and convincing evidence, 4 that it would have taken the same personnel action in

the absence of the protected disclosure or activity. Id.

In determining whether the agency has met its burden of proving that it

would have taken the same personnel action in the absence of an appellant’s

protected disclosures or activities, the Board will consider the following factors:

(1) the strength of the agency’s evidence in support of its action; (2) the existence

and strength of any motive to retaliate on the part of the agency officials involved

in the decision; and (3) any evidence that the agency takes similar actions against

employees who are not whistleblowers, but who are otherwise similarly situated.

Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999).

The Board does not view these factors as discrete elements, each of which the

agency must prove by clear and convincing evidence, but rather, the Board will

weigh the factors together to determine whether the evidence is clear and

convincing as a whole. Phillips v. Department of Transportation,

113 M.S.P.R. 73, ¶ 11 (2010). In addition, the Board is mindful that “[e]vidence

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).

Clear and convincing evidence is that measure or degree of proof that produces in the

mind of the trier of fact a firm belief as to the allegations sought to be established; it is

a higher standard than preponderant evidence. 5 C.F.R. § 1209.4(e).

only clearly and convincingly supports a conclusion when it does so in the

aggregate considering all the pertinent evidence in the record, and despite the

evidence that fairly detracts from that conclusion.” Whitmore v. Department of

Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012).

Once more, the administrative judge found that the appellant proved that he

made protected disclosures and engaged in protected activities. ID at 4-5, 23-24.

The administrative judge also found that the knowledge/timing test was satisfied

for the alleged personnel actions at issue in this appeal—two nonselections and a

hostile work environment. ID at 24-25; see Ayers v. Department of the Army,

123 M.S.P.R. 11, ¶ 25 (2015) (explaining that an appellant can prove the

contributing factor element by showing that the official taking the personnel

action knew of the protected disclosure or activity within a period of time such

that a reasonable person could conclude that the protected disclosure or activity

was a contributing factor in the personnel action). These findings are not

disputed on review.

The arguments on review are limited to the following: First, did the agency

prove by clear and convincing evidence that its nonselection of the appellant for

the Program Specialist position would have occurred in the absence of the

appellant’s protected disclosures and activities? Second, did the appellant prove

that he was subject to harassment or any other change that rose to the level of an

actionable “personnel action” and, if so, did the agency prove that the same

personnel action would have occurred in the absence of the appellant’s protected

disclosures and activities?

The agency rebutted the appellant’s prima facie case of reprisal regarding his

nonselection to the Program Specialist position.

The administrative judge found that the appellant met his burden of

establishing a prima facie case of reprisal regarding his nonselection to the

Program Specialist position. ID at 23-25; see King v. Department of the Army ,

116 M.S.P.R. 689, ¶ 10 (2011) (recognizing that a nonselection constitutes a

personnel action under the whistleblower statute). This finding is not disputed on

review. Therefore, it became the agency’s burden to prove by clear and

convincing evidence that the same nonselection would have occurred in the

absence of the appellant’s protected disclosures and activities.

The following facts about this nonselection, as explained by the

administrative judge and documented throughout the record, appear to be

undisputed: The appellant was among the 13 candidates who received an initial

interview for the Program Specialist vacancy. ID at 6. A three-member panel

conducted those initial interviews, asking each candidate the same questions, as

each panel member separately rated their answers. ID at 6-7; IAF, Tab 11

at 56-79. Of the initial interviewees, two panel members gave the appellant the

third-highest score, and one panel member gave the appellant the fourth-highest

score. ID at 7; IAF, Tab 11 at 53. With the scores across panel members

combined, the appellant had the third-highest score of those interviewed for the

Program Specialist position. ID at 7; IAF, Tab 11 at 53. At the next step in the

selection process, the initial interview panel members forwarded only the two

highest scoring candidates—which did not include the appellant—to the selecting

official for a second interview. ID at 8. The selecting official conducted those

two interviews and made a selection. Id.

In analyzing whether the agency met its burden of proving that this

nonselection would have occurred in the absence of the appellant’s protected

disclosures and activities, the administrative judge considered each member of

the initial interview panel and the selecting official. ID at 26-29. Of the initial

interview panel members, she found that one had no knowledge of the appellant’s

whistleblowing and there was no indication that he was influenced by someone

who did. ID at 27.

The administrative judge next found that the other two initial interview

panel members admitted that they had knowledge of the appellant’s

whistleblowing, but credibly testified that they did not discuss his whistleblowing

or otherwise let it influence the selection process. ID at 9, 27-28. The

administrative judge further found that the scores among panel members did not

suggest retaliation, since those with and without knowledge of the appellant’s

whistleblowing scored him similarly and all gave him high marks; none gave him

lower marks that might indicate an attempt to sabotage the appellant. ID at 28.

Lastly, the administrative judge found that these panel members did not have any

discernable motive to retaliate because they were not implicated by the

appellant’s whistleblowing activity and they did not work at the Altoona facility

at the time of the selection process. ID at 27-28.

Regarding the selecting official—the Director of the Altoona facility—the

administrative judge made several findings. Most notably, he found that there

was no indication that the selecting official had any input on the narrowing of

candidates to exclude the appellant from further consideration. ID at 26-27. The

administrative judge also indicated that, although the selecting official was

implicated by some of the appellant’s whistleblowing activity, that

whistleblowing occurred after the nonselection. ID at 26.

On review, the appellant argues that the administrative judge made several

errors or omissions of fact, PFR File, Tab 1 at 4-8, and therefore failed to comply

with the requirements of Carr and Whitmore, id. at 17-18. As further described

below, we modify the initial decision to supplement the administrative judge’s

findings while agreeing with his conclusion that the agency met its burden.

The appellant first argues that one of the panel members with knowledge of

his status as a whistleblower worked at the Altoona facility during the relevant

period, despite the administrative judge indicating otherwise. Id. at 4-5

(referencing ID at 27). In particular, the official had left his permanent position

at a Pittsburgh facility for a detail assignment as the Executive Assistant to the

Altoona Director at the time of the appellant’s interview. Id. On this point, the

evidence supports the appellant’s assertion. According to deposition testimony

from this official, he served as the Executive Assistant from January through

March 2018, and the appellant’s interview occurred in the intervening month of

February. IAF, Tab 11 at 51-52, Tab 41 at 62, 82-83.

Next, the appellant argues that the administrative judge was correct to note

that this member of the initial interview panel—the Executive Assistant—made

the decision to forward only the top two scoring interviewees to the Director for a

final selection before any interview had occurred, but the administrative judge

failed to note that he did so in concert with the Director, and that the Executive

Assistant would ultimately reveal all the initial interview scores to the Director

while forwarding only the top two for selection. PFR File, Tab 1 at 5-6

(referencing IAF, Tab 11 at 44-45, Tab 41 at 107-08). On these points, the

evidence again supports the appellant’s assertion. When asked why he forwarded

only the top two candidates from the initial interviews for further consideration,

the Executive Assistant indicated that this process had been made in consultation

with the Director. IAF, Tab 41 at 107-08. But he also said this process was

consistent with past practice at both the Altoona facility and the Pittsburg facility,

where he had been working previously. Id. As for the appellant’s latter point, an

email from the Executive Assistant to the Director contains text that recommends

the top two candidates receive a second interview, along with an attachment that

seems to include all interview scores. IAF, Tab 11 at 44.

The appellant also argues that the Director had knowledge of the

appellant’s whistleblowing and a motive to retaliate prior to the nonselection,

despite the administrative judge indicating otherwise. PFR File, Tab 1 at 6-7

(referencing ID at 26). Once again, the appellant’s assertion has merit. Among

other things, the record includes a news article dated months before the

appellant’s nonselection that describes the appellant’s whistleblowing, along with

the Director’s involvement in the matters underlying his whistleblowing. IAF,

Tab 27 at 83. It also includes an email chain in which the Director discusses this

new article. IAF, Tab 38 at 13-14.

The agency has not disputed these facts, as described in this portion of the

appellant’s petition. PFR File, Tab 3 at 6-7. Instead, the agency argues that these

matters to which the appellant has pointed do not warrant a different result. Id.

We agree.

Of the three members of the initial interview panel, which would ultimately

exclude the appellant from further consideration, two had some knowledge of the

appellant’s status as a whistleblower. It is possible these officials could have

held some institutional motive to retaliate. See Whitmore, 680 F.3d at 1370

(recognizing that “[t]hose responsible for the agency’s performance overall may

well be motivated to retaliate even if they are not directly implicated by the

disclosures, and even if they do not know the whistleblower personally, as the

criticism reflects on them in their capacities as managers and employees”). But

we are aware of nothing that would support a conclusion that they had a personal

motive to retaliate, or that any institutional motive was significant. One panel

member worked at a different facility and, as the appellant has noted, the other

panel member had only recently joined the Altoona facility for a detail

assignment. E.g., IAF, Tab 41 at 62, 82-83.

The administrative judge found that the initial interview panel members

credibly testified that they did not discuss the appellant’s status as a

whistleblower and that they did not allow his whistleblower status to influence

their decisions. ID at 27-28. We discern no basis for disturbing that credibility

determination. See Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed.

Cir. 2002). The documentary record also demonstrates that panel members with

and without knowledge of the appellant’s whistleblowing treated the appellant

and all other candidates similarly, both in terms of the interview process and their

scoring. IAF, Tab 11 at 56-79. Each rated the appellant highly, just not quite

high enough for him to be among the top two forwarded on for further

consideration. Id. at 53.

As for the Director, who was the selecting official for the Program

Specialist vacancy, the record reflects a significant motive to retaliate because

some of the appellant’s protected disclosures and activities alleged that she had

engaged in wrongdoing. E.g., IAF, Tab 27 at 83. However, the Director

essentially lacked any opportunity to retaliate against the appellant with respect

to the Program Specialist vacancy because the initial interview panel acted alone

in eliminating the appellant from further consideration. IAF, Tab 11 at 44, 53.

It seems as if the appellant’s theory is that the Director may have conspired

with or otherwise influenced one or more of the initial interview panel members

to ensure his nonselection. We have carefully considered this possibility because

of the Director’s significant motive to retaliate. However, clear and convincing

evidence supports a different conclusion. The record supports a finding that these

individuals acted independently, without any meaningful input or influence from

the Director. It further supports a finding that they had little to no motive to

retaliate, and those with and without knowledge of the appellant’s whistleblowing

rated him similarly—better than most candidates but just outside of the top two

who would be further considered for the Program Specialist position.

Accordingly, as modified by our analysis above, we agree with the administrative

judge’s conclusion. Although the appellant presented a prima facie case of

reprisal regarding this nonselection, the agency has met its burden of proving by

clear and convincing evidence that the appellant’s nonselection for the Program

Specialist position would have occurred in the absence of his protected

disclosures and activities.

The appellant failed to prove that he was subject to a significant change in duties,

responsibilities, or working conditions.

The other alleged personnel action adjudicated below and raised again on

review was a hostile work environment. E.g., IAF, Tab 46 at 5-6; ID at 3. For

this claim, the administrative judge first described the facts surrounding four

categories of harassment or improprieties the appellant alleged: (a) the agency

stripped the appellant’s Administrative Officer duties for a period of time,

(b) agency employees professionally and personally shunned him,

(d) the agency placed the appellant under a formal investigation. ID at 3, 11-22.

Next, the administrative judge found that the knowledge/timing test was satisfied

for these instances of alleged harassment, ID at 25, but that only the management

encouragement of complaints against the appellant was retaliatory, and that it did

not rise to the level of an actionable personnel action, ID at 30-37.

As further explained below, we find that the administrative judge erred in

how he addressed this claim. Using the proper analytical framework, we find that

the appellant failed to prove that he was subject to a personnel action, as that term

is defined in the whistleblower statute. Therefore, the appellant failed to meet his

burden for this claim, and we need not shift the burden to the agency for the

matter. See Clarke v. Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19

n.10 (2014) (recognizing that the Board may not proceed to the clear and

convincing evidence test unless it has first determined that the appellant

established his prima facie case), aff’d, 623 F. App’x 1016 (Fed. Cir. 2015).

The administrative judge correctly noted that the whistleblower statute’s

definition of a personnel action includes, inter alia, a “significant change in

duties, responsibilities, or working conditions” and that phrase must be

interpreted broadly. 5 U.S.C. § 2302(a)(2)(A)(xii); ID at 30 (citing Savage v.

Department of the Army, 122 M.S.P.R. 612, ¶ 23 (2015), overruled in part by

Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 23-25). During

the period that followed the administrative judge’s initial decision, we issued a

decision that further clarified the matter, particularly as it relates to allegations of

a hostile work environment. See Skarada v. Department of Veterans Affairs ,

2022 MSPB 17.

In Skarada, we explained that although the term “hostile work

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

hostile work environment may only establish a personnel action under the

whistleblower statute if they meet the statutory criteria, i.e., a significant change

in duties, responsibilities, or working conditions. Id., ¶ 16. And while the

“significant change” personnel action should be interpreted broadly to include

harassment and discrimination that could have a chilling effect on whistleblowing

or otherwise undermine the merit system, only agency actions that, individually

or collectively, have practical and significant effects on the overall nature and

quality of an employee’s working conditions, duties, or responsibilities will be

found to constitute a personnel action covered by section 2302(a)(2)(A)(xii). Id.

The circumstances of Skarada are worth summarizing for the sake of

comparison with the facts of the instant appeal. In Skarada, the appellant alleged

that his chain of command directed him to stop attending leadership meetings and

performing extra duties, and excluded him from the hiring process for two of his

new subordinates. Id., ¶ 17. However, we found that these appeared to be

collateral duties and the appellant failed to prove that these changes were

significant, as required to constitute a personnel action under the whistleblower

statute. Id., ¶¶ 24-25.

The appellant in Skarada also alleged that the agency excluded him from

meetings and conversations, subjected him to multiple investigations, accused

him of improprieties, refused his request for review of his position for a possible

upgrade, yelled at him on multiple occasions, and failed to provide him with

adequate support. Id., ¶ 18. For those matters, the Board similarly found that the

appellant failed to prove that he was subject to a personnel action. Id., ¶¶ 26-29.

We explained that, although he presented evidence in support of many of his

allegations, the appellant in Skarada failed to prove by preponderant evidence

that the agency’s actions constituted harassment to such a degree that his working

conditions were significantly and practically impacted. Id., ¶ 29. Put another

way, the appellant may have established an unpleasant or unsupportive work

environment, but he did not prove that he suffered a significant change in

working conditions. Id.

Turning back to the circumstances at issue in the instant appeal, the

administrative judge erred by considering whether the alleged harassment was

retaliatory before deciding whether the alleged harassment constituted a

personnel action. Nevertheless, we agree with his findings of fact, and we

conclude that the appellant failed to establish agency actions that, individually or

collectively, amounted to a personnel action.

Stripping the appellant of duties.

Regarding the alleged changes in his duties in or around April 2018, the

administrative judge recounted how the appellant claimed that numerous tasks

were stripped from him, resulting in his workload going from approximately

8 hours per day, to about 1 hour per day. ID at 11-12. In contrast, the individual

responsible for changes in his duties at that time—the Acting Chief of Physical

Medicine and Rehabilitation Service—provided a different description of the

circumstances. ID at 13-14. Broadly speaking, the Acting Chief testified that she

had never served as an Acting Chief before, she took over that role while still

responsible for her regular position as Supervisor of Care, she had a limited

understanding of the appellant’s role, she did not fully understand how to utilize

him, and she did not intentionally strip him of any duty. ID at 13.

The Acting Chief went on to contest the appellant’s more specific

allegations. For example, although the appellant claimed that the Acting Chief

stripped him of his role in the budget process, the Acting Chief indicated that she

was not asked to submit a budget during her tenure and she knew nothing about

one being required, which would explain why she never gave the appellant any

associated tasks. Id. In another example, the Acting Chief acknowledged that the

appellant was not included in certain action item requests from the front office,

but she explained that this was a lapse caused by the action item emails from the

front office not being sent to her team, which the Acting Chief remedied once she

learned of the problem. ID at 13-14. As for the appellant’s allegations that he

had been appointed to certain building and expansion projects but was then

excluded from them by the Acting Chief, the Acting Chief disagreed. ID at 14.

The Acting Chief indicated that while she did not ask the appellant to attend all

meetings associated with these projects, she kept him apprised of the same. Id.

Finally, the Acting Chief denied the appellant’s claim that he was excluded from

participating in Medical Center Memorandums. According to the Acting Chief,

there was only one Medical Center Memorandum that the appellant was not

initially involved in, and that was simply because another individual—a Physical

Therapist—had volunteered for the Memorandum involving a new wellness

project. Id.

The administrative judge did not explicitly find that the appellant’s

testimony was not credible. However, he did find the Acting Chief’s contrary

explanation of the circumstances credible and valid for several reasons. ID

at 31-32. The administrative judge also noted that other testimony contradicted

some of the appellant’s testimony about these matters. In particular, the appellant

testified that the Acting Chief’s eventual replacement restored his stripped duties

and revealed to the appellant that the Director had given instructions for the

appellant to be targeted. ID at 12. However, the Acting Chief’s replacement

testified that he received no such instruction and relayed nothing of the sort to the

appellant. Id.

On review, the appellant argues that when the administrative judge credited

the Acting Chief’s explanations of her lacking familiarity with the appellant’s

role, the administrative judge failed to consider inconsistencies between her

hearing testimony and deposition testimony. PFR File, Tab 1 at 8-10

(referencing, e.g., IAF, Tab 42 at 56, Tab 47, Hearing Recording, Day 2 (HR2)

(testimony of Acting Chief). We are not persuaded.

The evidence the appellant relies on does suggest that the Acting Chief had

some understanding of the appellant’s position when she took over as Acting

Chief. E.g., IAF, Tab 42 at 56; HR2 at 4:08 (testimony of Acting Chief). But it

also supports a conclusion that she lacked a detailed understanding of his position

and his involvement in certain projects, and she also lacked a prior working

relationship with the appellant, all of which contributed to the temporary changes

or lapses that did occur. E.g., IAF, Tab 42 at 58-64; HR2 at 4:09-4:11 (testimony

of Acting Chief).

We supplement the administrative judge’s findings to conclude that,

although the appellant generally described an extreme change in his duties or

working conditions—from 8 hours of work per day to 1 hour of work per day—

documentary evidence is more consistent with the type of minor changes a

subordinate might encounter as they begin working for a new supervisor,

particularly when that new supervisor is taking on a new and unfamiliar

workload. For example, documents the appellant describes as evidence that he

was removed from a particular building project merely consist of a couple cursory

emails about the project in which the appellant is not copied. IAF, Tab 26 at 21,

Tab 40 at 4-7. Other documentary evidence he submitted about other changes to

his duties similarly supports the Acting Chief’s explanation and gives no

indication that the appellant suffered the extreme change in duties he alleges.

E.g., IAF, Tab 26 at 21-22, Tab 40 at 8-11, Tab 41 at 13-21. Given the record

before us, the appellant has not proven by preponderant evidence that changes to

his duties and working conditions during the Acting Chief’s tenure were

significant.

Professional and personal shunning.

The next category of alleged harassment was the appellant’s report of being

professionally and personally shunned. For this, the administrative judge simply

indicated that the record suggested many employees disliked the appellant, but

the appellant did not offer any documentation or testimony to show that

management sought to actively harass him by encouraging staff to avoid him. ID

at 14.

On review, the appellant presents 15 points in support of his claim of being

professionally and personally shunned. PFR File, Tab 1 at 10-13. Many mirror

those addressed in one of the other categories of alleged harassment, such as the

allegation that the Acting Chief stripped him of duties, so we will not address

them again. Many more concern matters occurring after OSC closed its

complaint and are, therefore, outside the purview of this appeal. See Mason v.

Department of Homeland Security, 116 M.S.P.R. 135, ¶¶ 8-9 (2011) (explaining

the exhaustion requirement for IRA appeals, which prevents the Board from

considering alleged personnel actions that were not raised before OSC); compare

IAF, Tab 1 at 34-37 (OSC’s September 2018 closeout letter), with PFR File,

Tab 1 at 12-13 (appellant describing numerous complaints he reported to

management between October 2018 and January 2019, including one about his

November 2018 performance appraisal), and IAF, Tab 46 at 5 (prehearing order

finding that the appellant’s November 2018 performance appraisal was outside

the purview of this appeal).

For the few points that remain regarding the allegation that he was

professionally and personally shunned, the appellant’s arguments on review

provide no basis for reaching a conclusion different from that of the

administrative judge. To illustrate, the appellant has directed us to his own

deposition testimony, where he described one coworker walking away from him,

another giving him the middle finger, and his supervisor deleting some of his

emails without reading them. PFR File, Tab 1 at 11 (referencing IAF, Tab 24

at 15). He also asserts that agency officials encouraged an agency employee to

harass him on private social media accounts. PFR File, Tab 1 at 13 (referencing

IAF, Tab 24 at 15). However, he has not directed us to preponderant evidence

that these instances of alleged harassment both occurred and rose to the level of a

personnel action.

Management encouraged complaints.

Regarding the appellant’s allegation that management encouraged others to

file complaints against him, the administrative judge detailed the underlying

facts, which we will briefly summarize. First, the appellant was involved in an

analysis of new qualifications for the agency’s Physical Therapists, after which a

group of Physical Therapists lodged an April 2018 complaint about that analysis

and several other issues. ID at 14-18. As a result, the agency convened the fact-

finding inquiry that will be discussed below. ID at 19-20. During her interview

of several staff members, the investigator responsible for that fact-finding inquiry

—a Human Resources Specialist who normally worked at an agency facility on

the other side of the country—identified the appellant and one other individual as

whistleblowers, and she informed the interviewees that they should consider

filing complaints against the appellant and the other whistleblower. ID at 20-21.

According to the investigator, she did so for their benefit after learning that the

appellant had been naming others in social media posts. ID at 21. The appellant

asserted that this led to several additional complaints against him. Id.

The administrative judge found nothing nefarious about the initial

complaints that led to the formal fact-finding inquiry and found no indication that

the complaints were encouraged by management. ID at 33-34. Instead, he found

that the appellant provided what seemed to be correct analysis about the Physical

Therapists’ qualification standards, and the Physical Therapists responded in an

unsurprising way, as they advocated for themselves regarding qualifications to

attain the next grade level. Id.

On the other hand, the administrative judge found that the investigator

tasked with investigating the Physical Therapists’ complaints did encourage

additional complaints against the appellant and did identify him as a

whistleblower, which the administrative judge described as bizarre and highly

unprofessional. ID at 35-36. Nevertheless, the administrative judge further

found that this and any resulting investigation did not constitute a personnel

action under the whistleblower statute. ID at 36-37.

In his petition for review, the appellant reasserts that the original

complaints were also encouraged by management. PFR File, Tab 1 at 16-17

(referencing ID at 33). However, it seems as if his accompanying arguments and

references to evidence of record do not concern the original complaints. They

instead concern the resulting investigation, during which the administrative judge

found that the investigator did encourage complaints against the appellant. E.g.,

IAF, Tab 14 at 543, Tab 32 at 9. More importantly, the appellant has not

presented anything to warrant us reaching a conclusion different from that of the

administrative judge regarding the significance of management’s actions and the

encouragement of complaints.

The agency placed the appellant under a formal fact-finding inquiry.

Pertaining to the allegation that the agency placed the appellant under the

formal fact-finding inquiry mentioned above, the administrative judge provided

additional details. ID at 15-22. Among other things, he noted that the inquiry

covered 11 issues, only 1 of which involved the appellant. ID at 19. That lone

issue involving the appellant was an allegation that the appellant and another

agency official were limiting the professional development of the agency’s

Physical Therapists. Id.

On review, the appellant argues that the administrative judge’s description

of the facts surrounding this claim are mistaken in that the judge failed to

acknowledge how the Physical Therapists learned of the appellant’s analysis

regarding their qualifications. PFR File, Tab 1 at 14. While the administrative

judge indicated that it was not clear how they came to learn of the appellant’s

analysis, the appellant insists that the record shows they learned of his analysis

through a certain agency official—the Associate Director for Operations. Id.

(referencing ID at 16-17). We recognize that the appellant has pointed to at least

some evidence to support this contention. E.g., IAF, Tab 14 at 130-31. However,

the appellant has not presented any persuasive explanation for why this is

particularly relevant. The qualification standards of the agency’s Physical

Therapists were a matter of discussion among interested parties, e.g., IAF, Tab 29

at 4-10, leading to disagreement and complaints by the Physical Therapists who

were seeking advancement to the next grade level, e.g., IAF, Tab 31 at 9-11. The

inclusion of the appellant’s analysis of the matter, which the administrative judge

found to be correct, appears rather innocuous, even if that led to the Physical

Therapists including the appellant in their complaints about leadership limiting

their advancement. ID at 33.

The appellant also presents an argument about the scope of the fact-finding

inquiry and the administrative judge’s discussions about the same. PFR File,

Tab 1 at 15-16 (referencing ID at 20, 34). However, as the administrative judge

noted, the investigation resulted in a determination that the appellant had not

engaged in any wrongdoing. ID at 34; see IAF, Tab 16 at 57-60. Therefore, the

relevance of the appellant’s arguments about the scope of the investigation is not

apparent.

In sum, the record supports a conclusion that the appellant underwent some

changes in duties during the period in which he served under an Acting Chief. It

also supports a conclusion that the appellant perceives his working environment

as one in which he is not supported. Finally, the record supports a conclusion

that the appellant was one of the subjects of a fact-finding inquiry, during which

an investigator encouraged others to file complaints against the appellant, but this

did not result in the appellant being disciplined or subject to any other notable

repercussions. We have considered these matters individually and collectively.

After doing so, we find that although the appellant may have established an

unpleasant or unsupportive work environment, he did not prove that he was

subject to a significant change in duties, responsibilities, or working conditions.

Therefore, the appellant has failed to meet his prima facie burden of proof for this

claim.

The evidence submitted for the first time on review does not warrant a different

result.

As mentioned above, the appellant submitted a series of documents that he

did not present below. PFR File, Tab 1 at 25-68. He argues that the agency

should have provided each in response to his discovery requests, but the agency

failed to do so. Id. at 19-20. Instead, the agency provided the appellant with the

documents after the record closed below, in response to a Freedom of Information

Act request. Id. In its response, the agency does not directly address the

appellant’s assertion that the agency should have provided these documents in

response to his discovery requests. The agency simply argues that these

documents submitted for the first time on review have no bearing on this appeal.

PFR File, Tab 3 at 12-14.

Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence

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

unavailable before the record was closed before the administrative judge despite

the party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211,

213-14 (1980). To constitute new evidence, the information contained in the

documents, not just the documents themselves, must have been unavailable

despite due diligence when the record closed. Becker v. Department of Veterans

Affairs, 112 M.S.P.R. 507, ¶ 8 (2009); 5 C.F.R. § 1201.115(e). Moreover, the

Board will not grant a petition for review based on new evidence absent a

showing that it is of sufficient weight to warrant an outcome different from that

of the initial decision. Russo v. Veterans Administration, 3 M.S.P.R. 345, 349

(1980).

The first set of documents the appellant presents for the first time on

review is a January 2018 email, listing 28 agency whistleblowers from around the

country, providing a limited explanation of their whistleblowing, and

recommending which might be a good fit for inclusion in the agency’s peer-to-

peer whistleblower mentor program. PFR File, Tab 1 at 26-39. Although all

names are redacted from the document, the appellant argues that this was a

message to agency leadership from a Whistleblower Specialist within the

agency’s Office of Accountability and Whistleblower Protection. Id. at 19-22.

The second set of documents is a set of emails dated September 2019, a year after

OSC closed out the reprisal claim at issue in this appeal. Id. at 41-56. Although

many names throughout these documents are also redacted, the appellant asserts

that this document establishes the individuals involved in the first set of

documents. Id. at 21-22. The appellant argues that the January 2018 and

September 2019 documents, combined, show that numerous agency officials

disfavored him. Id. at 21.

The third set of documents the appellant presents for the first time on

review is a series of May 2018 emails, many of which also have names redacted.

Id. at 58-61. According to the appellant, these documents show that senior

leadership within the agency knew of the fact-finding inquiry involving the

appellant. Id. at 22.

The fourth and final set of documents the appellant attaches to his petition

consists of email exchanges between the agency’s representative in this appeal

and a hearing witness. Id. at 22, 63-68. Generally speaking, these exchanges

include the representative informing the witness that he may be called to testify,

the witness indicating that he did not want to testify and did not think he had

anything of value to add to the appeal, and then the representative eventually

indicating that this potential witness would not need to testify. Id. at 63-68.

According to the appellant, these exchanges show that the agency’s representative

had inappropriate contact with this potential witness that the representative failed

to disclose to the administrative judge. Id. at 22-24.

After reviewing all these documents, we find that the appellant has not

shown that any of the evidence presented for the first time on review is both new

and material. Even if we were to find that the information contained in these

documents was previously unavailable, the information would not alter our

conclusions regarding the agency’s burden for the nonselections or the appellant’s

burden for the alleged hostile work environment. They also do not persuade us

that the agency’s representative engaged in any improprieties.

NOTICE OF APPEAL RIGHTS 5

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).

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.

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:

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. 6 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