finding that the denial of a predecisional hearing did not implicate the constitutional issue in Loudermill
How later courts described this case
- finding that the denial of a predecisional hearing did not implicate the constitutional issue in Loudermill
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FRANK L. FORD, DOCKET NUMBER
Appellant, SF-0752-18-0703-I-2
v.
DEPARTMENT OF COMMERCE, DATE: September 19, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Frank L. Ford , Army Post Office/Fleet Post Office, Europe, pro se.
Ashley Geisendorfer , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s removal action. For the reasons discussed below, we
GRANT the appellant’s petition for review, VACATE the initial decision, and
REMAND the case to the Western Regional Office for further adjudication in
accordance with this Remand Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
The appellant was the Chief Steward onboard the ship “Fairweather” with
the agency’s National Oceanic and Atmospheric Administration (NOAA). Initial
Appeal File (IAF), Tab 9 at 4-5. Following complaints made against the
appellant by current and former subordinates, an outside organization conducted
an investigation into the appellant’s alleged misconduct. Id. at 41. At the
conclusion of the investigation, which included interviewing numerous
individuals and reviewing documentation, the investigator found evidence
supporting several complaints against the appellant. Id. at 41-57. Thus, on
June 23, 2017, the Commanding Officer of the Fairweather proposed to remove
the appellant based on one charge of conduct unbecoming. Id. at 36. The charge
contained six specifications, setting out various incidents wherein the appellant
allegedly exhibited disregard for the ship’s crew members and mistreated his
staff. Id. at 36-37. For example, according to two specifications, the appellant
instructed subordinates to bleach off expiration dates and serve expired food, and
made comments such as “the crew didn’t deserve any snacks.” Id. at 36. Other
specifications additionally set out that the appellant instructed the General Vessel
Assistant (GVA) to be available to work on a day she was on leave, physically
moved her out of the way on one occasion, and deliberately assigned her more
work than she could complete while instructing other staff not to assist her. Id.
at 37. The appellant provided both a written and oral reply to the charge. IAF,
Tab 8 at 90-94, Tab 9 at 5, 11-33.
Following the appellant’s reply, the Commanding Officer of NOAA’s
Center-Pacific Marine Operations issued a decision affirming the charge and
removing the appellant, effective July 25, 2017. IAF, Tab 9 at 5-10. The
appellant challenged this action before the Board, alleging discrimination based
on age and race, whistleblower retaliation, and a due process violation. IAF,
Tab 2 at 2. The administrative judge dismissed the appeal in October 2018,
without prejudice to refiling, at the appellant’s request. IAF, Tab 26, 29, Initial
3
Decision. After automatically refiling the appeal in December 2018, the
administrative judge canceled the hearing as a sanction for the appellant’s failure
to file timely prehearing submissions. Refiled Appeal File (RAF), Tab 5 at 2,
Tabs 6-7, Tab 19, Initial Decision (ID) at 1, 3-4. The administrative judge issued
an initial decision on the written record affirming the agency’s removal action.
ID at 1.
The administrative judge sustained all six of the agency’s specifications,
crediting several individuals’ sworn statements over the appellant’s statements.
ID at 7-19. The administrative judge found that the appellant had not proved his
allegations of due process violations or discrimination based on race or age. ID
at 20-27. Additionally, the administrative judge held that the appellant failed to
establish his claim of whistleblower retaliation, finding that the appellant failed
to prove he made a protected disclosure that was a contributing factor in a
personnel action. ID at 27-31. The administrative judge further found a nexus
between misconduct and the efficiency of the service. ID at 19-20. Finally, the
administrative judge determined that the penalty of removal was within the
tolerable bounds of reasonableness. ID at 31-34.
The appellant has filed a petition for review, arguing that the agency failed
to prove its charge and specifications. Petition for Review (PFR) File, Tab 11
at 12-14. In doing so, he cites the testimony of some of his listed witnesses, who
he argues would have rebutted the charge. Id. at 12-13; RAF, Tab 6 at 6-7. He
additionally repeats his arguments of a due process violation and whistleblower
retaliation and attaches numerous documents to his petition. PFR File, Tab 11
at 4-61. The agency has responded to the appellant’s petition for review. PFR
File, Tab 14.
4
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge abused her discretion in canceling the appellant’s
requested hearing.
The administrative judge here canceled the hearing and issued a decision
on the written record. RAF, Tab 5 at 2. The appellant asserts on review that
several of his witnesses did not testify. PFR File, Tab 11 at 12-13. For example,
he argues that he listed as witnesses two Chief Cooks who were present during
his discussion with the GVA, in which the agency alleged he improperly
instructed her to be available to work on her days off. PFR File, Tab 11 at 12-13;
IAF, Tab 9 at 37; RAF, Tab 6 at 6-7. According to the appellant, the Chief Cooks
would have testified that the GVA “agreed to the deal” that she be available to
work if needed, but “no one ever called them to get their side of the story.” PFR
File, Tab 11 at 12.
As another example, the appellant asserts that he listed the Executive
Officer of the Fairweather as a witness to “attest to the fact that [he] created [the
GVA’s] work load and not [the appellant].” 2 Id. at 13; RAF, Tab 6 at 6-7, Tab 16
at 5, 7-8, 10-13. His argument is in response to the administrative judge’s finding
that the agency proved its specification that he assigned an unreasonable amount
of work to the GVA, and that the appellant failed to prove that the Executive
Officer was responsible for the GVA’s workload. ID at 18-19; IAF, Tab 9 at 37.
We interpret the appellant’s arguments regarding these witnesses liberally,
particularly in light of his pro se status. See Melnick v. Department of Housing &
Urban Development, 42 M.S.P.R. 93, 97-98 (1989) (explaining that an
2
Contrary to the appellant’s claim on review, it does not appear that he listed the
Commanding Officer of the Fairweather as a witness to attest to these same alleged
facts. PFR File, Tab 11 at 13; RAF, Tab 6 at 6-7, Tab 16 at 5, 7-8, 10-13. He identified
as witnesses the current Executive Officer as well as someone he indicated previously
holding the position. IAF, Tab 9 at 53; RAF, Tab 6 at 6-7, Tab 16 at 7. On remand, the
administrative judge should get clarification from the parties as necessary and make
determinations as to whether to grant each party’s request for any particular witness.
See 5 C.F.R. § 1201.41(b)(8), (10) (reflecting the authority of the administrative judge
to rule on witness lists and order the production of witnesses whose testimony would be
relevant, material, and nonrepetitious).
5
administrative judge is expected to interpret pleadings liberally, and that parties
without the benefits of legal counsel are not required to plead the issues with the
precision of an attorney), aff’d, 899 F.2d 1228 (Fed. Cir. 1990) (Table). Thus,
although not framed as a denial of his right to a hearing, we view his arguments
regarding the lack of witness testimony as raising this issue on review. See Siman
v. Department of the Air Force, 80 M.S.P.R. 306, ¶¶ 6-7 (1998) (remanding an
appeal for a hearing if requested because the administrative judge did not fully
advise the appellant of his options of a hearing by telephone or video, even
though the appellant did not specifically raise hearing-related issues on review).
Under the facts of this case, we find that the administrative judge abused her
discretion by canceling the hearing, and we thus vacate the initial decision.
An administrative judge has the authority to sanction a party when
necessary to serve the ends of justice. Heckman v. Department of the Interior,
106 M.S.P.R. 210, ¶ 8 (2007), overruled on other grounds by Garcia v.
Department of Agriculture, 110 M.S.P.R. 371, ¶¶ 8-12 (2009); 5 C.F.R.
§ 1201.43. That authority includes the right to sanction a party for failure to
comply with an order. Heckman, 106 M.S.P.R. 210, ¶ 8. An appellant’s right to
a hearing, however, should not be denied as a sanction absent extraordinary
circumstances. Id.; 5 C.F.R. § 1201.43(e) (reflecting that an administrative judge
may cancel a hearing for contumacious conduct or conduct prejudicial to the
administration of justice). Indeed, there is a strong policy consideration that an
appellant receive a hearing on the merits of a case. Siman, 80 M.S.P.R. 306, ¶ 6.
A single failure to comply with an order is not sufficient to show a lack of due
diligence, negligence, or bad faith in the appellant’s compliance with an
administrative judge’s orders, so as to justify a drastic sanction such as
precluding the presentation of evidence at a hearing. Sims v. U.S. Postal Service,
88 M.S.P.R. 101, ¶ 7 (2001); see Hart v. Department of Agriculture, 81 M.S.P.R.
329, ¶ 7 (1999) (explaining that an appellant’s inadvertent failure to comply with
6
an administrative judge’s order is not an extraordinary circumstance that warrants
the extreme sanction of the denial of a hearing).
The administrative judge originally set a deadline in October 2018 for the
parties to submit prehearing submissions. IAF, Tab 22 at 2-3. However, she later
acknowledged the appellant’s request for an “extension on [his] case” because he
was working in Iraq without reliable mail service or internet until December 21,
2018. IAF, Tabs 26, 28. She issued an initial decision dismissing the appeal
without prejudice, with an automatic refiling date of December 14, 2018. IAF,
Tab 29. On the same day, she issued an order that, after the automatic refiling of
the appeal, the parties were to file prehearing submissions by December 17, 2018.
IAF, Tabs 28-29. She did not explain why she set the prehearing submission
deadline 4 days before the appellant was due to return from Iraq and neither the
initial decision dismissing the appeal without prejudice, nor the order of the same
date stated that the parties could object to the December 17, 2018 deadline. 3
After the appeal was automatically refiled, the agency timely submitted
prehearing submissions on December 17, 2018. RAF, Tab 3. The appellant,
however, did not. On December 21, 2018, the same day the appellant returned
from Iraq, the administrative judge issued an order to the parties advising them
that, in the event of a Government shutdown, the prehearing conference date was
rescheduled for early January, and the hearing would “be deemed postponed.”
RAF, Tab 4. She did not set a new date for the hearing. Id. Many Government
operations were, in fact, shutdown from December 22, 2018, to January 26, 2019,
including the Board’s adjudicatory function. RAF, Tab 7 at 2.
On May 3, 2019, the administrative judge issued an order setting a date for
the record to close. RAF, Tab 5 at 2-3. She stated that because the appellant did
not file prehearing submissions or request witnesses, “there is no justification for
a hearing to be rescheduled.” Id. at 2. Three weeks later, the appellant filed a
3
The administrative judge made general statements regarding the parties’ ability to
object in other orders, but did not specifically advise them in the orders at issue here.
IAF, Tab 3 at 3; RAF, Tab 2 at 1.
7
motion to extend his time to file his prehearing submissions. RAF, Tab 6. He
stated under penalty of perjury that he missed the December 17, 2018 deadline
because he was in Iraq until December 21, 2018. RAF, Tab 6 at 4-5; Edwards v.
Department of Veterans Affairs, 111 M.S.P.R. 297, ¶¶ 4, 6 (2009) (stating that if
unrebutted, an affidavit or a declaration made under penalty of perjury proves the
facts asserted therein). With his motion, he requested exhibits and provided a
witness list. 4 Id. at 6-7. The administrative judge subsequently found no good
cause for the appellant’s untimely filing and declined to reschedule the hearing.
RAF, Tab 7 a 2.
We disagree that the appellant failed to show good cause for his delay.
While we acknowledge his 5-month delay was lengthy, the circumstances as a
whole reflect that it was due to his confusion. Specifically, as to his failure to
submit his prehearing submissions by December 17, 2018, the appellant was out
of the country until December 21, 2018, and his pleadings reflect his mistaken
belief that his prehearing submissions were due on that later date. RAF, Tab 6
at 3, 5. This confusion was caused, in part, by the administrative judge’s order
scheduling the December 17, 2018 deadline because, in the same order, she
acknowledged that the appellant was “overseas and without reliable
communication until December 21, 2018.” IAF, Tab 28 at 2. Further, the
administrative judge’s order on December 21, 2018, regarding a potential
Government shutdown led the appellant to believe, according to his sworn
statement, that “[his] case was closed.” RAF, Tab 6 at 3.
The circumstances here are similar to those in Hart, 81 M.S.P.R. 329,
¶¶ 2-3, 5-7, in which the Board found that an administrative judge abused her
discretion when she canceled an appellant’s requested hearing due to the
appellant’s failure to make herself available for a scheduled prehearing
4
The appellant subsequently filed a second submission titled Prehearing Submissions.
RAF, Tab 16 at 4. Although not entirely clear, based on the timing, it appears that he
intended this document and its attachments to be his close-of-record submission. RAF,
Tab 14 at 1, Tab 16.
8
conference. The Board reasoned the appellant mistakenly but inadvertently relied
on statements by the agency representative that the administrative judge would
likely dismiss the case without prejudice, thus presenting good cause for her
failure to comply with administrative judge’s order. Id., ¶¶ 6-7. For the same
reasons, we find that the appellant’s misunderstandings of the process, created in
part by the administrative judge’s orders, are good cause for his failure to submit
prehearing submissions by December 17, 2018, and thereafter.
Further, following the administrative judge’s December 21, 2018 order
advising of a potential Government shutdown, no activity took place on the case
until she issued the May 3, 2019 order that canceled the hearing. RAF, Tab 5.
The administrative judge did not provide the appellant with either a show cause
order or some other opportunity to explain his failure to meet the prehearing
submission deadline. Id. Therefore, we cannot agree with the administrative
judge that the appellant’s failure to follow a single order, i.e., his delay in filing
prehearing submissions until May 24, 2019, justified the extraordinary sanction of
canceling the hearing. RAF, Tab 6; see Sims, 88 M.S.P.R. 101, ¶ 8 (citing the
lack of a show cause order as further support for the determination that an
appellant’s failure to participate in a single prehearing conference was
insufficient to justify the sanction of cancelation of the hearing).
The appellant on review attached numerous documents, including the
results of two polygraph examinations, a statement from a prior member of the
Fairweather refuting the agency’s charges, performance reviews, a letter of
reprimand against the GVA who made allegations against the appellant, and
various email threads. PFR File, Tab 11 at 16-61. On remand, the administrative
judge may allow the parties an opportunity to supplement the record with this and
other evidence if she determines doing so is appropriate.
9
After the record closes in the remanded appeal, the administrative judge should
issue a new initial decision.
The appellant on review denies each of the specifications and argues that
his conduct was not unbecoming. PFR File, Tab 11 at 12-14. The administrative
judge held that the agency proved each of the specifications by preponderant
evidence. ID at 7-19. Because we are vacating the initial decision and remanding
this appeal for a hearing, we need not reach the question of whether the agency
sufficiently met its burden.
On remand, the administrative judge should make new findings regarding the
appellant’s affirmative defenses.
Due process and harmful error
The appellant on review repeats his argument from below that, because his
ship’s crew was instructed not to contact him, he was denied due process in
obtaining statements that could aid his defense. PFR File, Tab 11 at 14; RAF,
Tab 18 at 5. The administrative judge held that the appellant failed to meet his
burden of proving a due process violation; he was, rather, provided the requisite
notice and opportunity to respond to the proposed removal. ID at 20-23. Taking
as true the facts alleged by the appellant, we agree with the administrative judge.
An agency’s failure to provide a tenured public employee with an
opportunity to present a response, either in person or in writing, to an appealable
agency action that deprives him of his property right in his employment
constitutes an abridgement of his constitutional right to minimum due process of
law, i.e., prior notice and an opportunity to respond. Cleveland Board of
Education v. Loudermill, 470 U.S. 532, 546 (1985). However, at the
predecisional stage, an employee does not have a due process right to a hearing or
a formal investigation. See Mercer v. Department of Health & Human Services ,
772 F.2d 856, 859 (Fed. Cir. 1985) (finding that the denial of a predecisional
hearing did not implicate the constitutional issue in Loudermill); Alsedek v.
Department of the Army, 58 M.S.P.R. 229, 240-41 (1993) (determining that an
10
agency did not violate an appellant’s due process rights when it elected to
conduct an informal, rather than a formal, investigation). By analogy, we find
that there is no due process right to interview witnesses before responding to a
proposed adverse action.
Instead, minimum due process generally requires prior notice and an
opportunity to respond to an appealable agency action. Ronso v. Department of
the Navy, 122 M.S.P.R. 391, ¶¶ 12-13 (2015) (declining to find a due process
violation when a deciding official delegated the task of receiving oral replies to a
designated official). The appellant here made both written and oral replies to the
proposed removal. IAF, Tab 9 at 5, 15-17. Moreover, the notice of proposed
removal here specifically set out the charge and specifications used in
disciplining the appellant. Id. at 36-40. Accordingly, we find that, as a matter of
law, the agency provided the appellant the requisite minimum due process. When
there is no dispute of material fact and the outcome of the appeal is a matter of
law, the hearing may be limited to an opportunity to present oral argument on the
dispositive legal issue. Wible v. Department of the Army, 120 M.S.P.R. 333, ¶ 8
(2013). Therefore, on remand, unless the appellant raises new factual allegations
that present a due process concern, the administrative judge may limit him at the
hearing to presenting only oral argument on this issue.
The administrative judge also found that the appellant failed to prove
harmful error regarding the agency’s alleged instructions to the crew not to
communicate with him because he did not identify any law, rule, or regulation the
agency violated, or explain how any error was harmful. ID at 23 n.4. Although
not entirely clear, we interpret the appellant’s arguments on review as re-raising
this harmful error claim. PFR File, Tab 11 at 14. It does not appear that the
administrative judge gave notice of how to prove harmful error below. RAF,
Tab 5 at 3-13. The Board has consistently required administrative judges to
apprise an appellant of the applicable burdens of going forward with the evidence
and of proving a particular affirmative defense, as well as the kind of evidence
11
the appellant is required to produce to meet his burden. 5 Erkins v. U.S. Postal
Service, 108 M.S.P.R. 367, ¶ 8 (2008). Therefore, on remand, the administrative
judge must provide the appellant with this notice so that he can attempt to meet
his burden.
Whistleblower reprisal
The appellant on review re-raises his argument that his removal was
retaliation for his disclosure regarding the disappearance of $15,000 worth of
meat. PFR File, Tab 11 at 14. The administrative judge held that the appellant
failed to establish that he made a protected disclosure that was a contributing
factor in his removal. ID at 27-30. She alternatively found that, even if the
appellant could establish his prima facie case, the agency met its burden to prove
by clear and convincing evidence that it would have removed the appellant absent
any protected disclosure. ID at 30-31. On remand, the administrative judge
should make new findings on this affirmative defense following the close of the
record, consistent with the guidance below.
In an adverse action appeal such as this one, an appellant’s claim of
whistleblower reprisal is treated as an affirmative defense. Campbell v.
Department of the Army, 123 M.S.P.R. 674, ¶ 11 (2016). In such instances, once
the agency proves its adverse action case by a preponderance of the evidence, the
appellant must show by preponderant evidence that he engaged in whistleblowing
activity by making a protected disclosure under 5 U.S.C. § 2302(b)(8) and that
the disclosure was a contributing factor in the agency’s personnel action. Id.
A protected disclosure is a disclosure of information that the 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). The
5
In Thurman v. U.S. Postal Service, 2022 MSPB 21, ¶ 17, we held that remand is not
always necessary when an administrative judge fails to provide such notice. Because
we are remanding here, in any event, for the administrative judge to hold the appellant’s
requested hearing, this finding in Thurman does not impact our remand determination.
12
record below contains a copy of emails the appellant sent the then-Executive
Officer of the Fairweather, and also forwarded to another agency official, in
February 2015, in which he reported that a Chief Cook had a homeless shelter
pick up approximately four to five pallets of meat because the Chief Cook did not
believe the ship needed it. 6 IAF, Tab 7 at 64-65. The appellant stated that he
valued the meat “conservative[ly] . . . in excess of Five thousand dollars,” and
referred to documentation “of the shelf life of many of the meats that were in the
freezer.” Id. at 65. During the proceedings below, the appellant alleged that the
value of the lost meat was actually at or above $15,000. RAF, Tab 18 at 4.
According to the appellant, the Chief Cook stated that he donated the meat
because it was not fit for human consumption. RAF, Tab 18 at 4. The appellant
alleged below that the Chief Cook’s claim that the meat was unfit was incorrect.
Instead, “the meat was less than 90dyas old at the oldest. cryo-vaced and in the
freezer the whole time.” Id. (spelling and punctuation as in original). He also
questioned the Chief Cook’s claim that the meat was, in fact, donated. Id. at 4.
In March 2017, the appellant forwarded his original emails to the individual in
charge of the outside investigation that led to his removal, as well as to an agency
employee assigned to assist in that investigation. IAF, Tab 7 at 62-64, 113.
The administrative judge analyzed the appellant’s emails as a potential
disclosure of a violation of law, rule, or regulation, but was unpersuaded. She
found that the appellant failed to identify any law, rule, or regulation he
reasonably believed was violated. ID at 29-30. To the extent that the
administrative judge determined that the appellant was required to identify by
citation the provision that he believed the agency violated, that was incorrect.
Langer v. Department of the Treasury, 265 F.3d 1259, 1266 (Fed. Cir. 2001).
Rather, it is sufficient if his “statements and the circumstances surrounding the
making of those statements clearly implicate an identifiable violation of law, rule,
6
The Executive Officer at the time was not the same Executive Officer who was in
charge of the Fairweather at the time of the appellant’s removal. IAF, Tab 7 at 64.
13
or regulation.” Id. On remand, the administrative judge should consider whether
the appellant met his burden under this standard.
The administrative judge also held that the appellant failed to prove that
giving away the meat in question was a gross waste of funds. ID at 29-30. She
reasoned that the appellant’s disclosure did not evidence an expenditure by the
Government. Id. To the extent she imposed a requirement that a disclosure of a
gross waste of funds must reflect a cost—versus a loss—to the Government, her
reasoning was incorrect. This requirement is not imposed either by statute or
case law. 5 U.S.C. § 2302(b)(8)(A); see MacGowan v. Environmental Protection
Agency, 119 M.S.P.R. 9, ¶ 7 (2012) (finding an appellant made a nonfrivolous
allegation that he disclosed a gross waste of funds regarding the agency’s risk of
losing funds obligated to contracts without ordering work). Nonetheless, we
observe that, on remand, the appellant must prove that the $5,000 to $15,000
value of the lost meat was a more than debatable expenditure that is significantly
out of proportion to the benefit reasonably expected to accrue to the Government.
Id.
The appellant below argued that the act of donating the meat could have
affected the ship’s ability to complete its mission because the ship had “no food
at all.” RAF, Tab 18 at 4. The administrative judge determined that the
appellant’s disclosure did not evidence gross mismanagement. ID at 30. She
reasoned that the appellant needed to disclose “such serious errors by the agency
that a conclusion the agency erred is not debatable among reasonable people.” Id.
(quoting White v. Department of the Air Force, 391 F.3d 1377, 1382 (Fed. Cir.
2004)). However, in Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶ 9
(2015), the Board recognized that the legislative history of the Whistleblower
Protection Enhancement Act of 2012 criticized this language from White as
potentially requiring an appellant to prove that the misconduct occurred, as
opposed to that he reasonably believed it occurred. On remand, the
administrative judge should apply the appropriate standard, i.e., whether the
14
appellant met his burden to prove that he reasonably believed the loss of the meat
evidenced the kinds of misconduct listed in section 2302(b)(8). Webb,
122 M.S.P.R. 248, ¶ 9.
Turning to the contributing factor requirement, the administrative judge
found that the appellant failed to prove that any disclosure he made was a
contributing factor in his removal. ID at 30. She reasoned that more than 2 years
had passed between the appellant’s removal and his disclosure. Id. 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 element 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.
In applying the test here, the administrative judge appears to have
considered only the appellant’s February 2015 disclosure. However, as discussed
above, the appellant re-disclosed this same information in March 2017, within
months of when the agency proposed his removal in June 2017 and issued its
removal decision in July 2017. IAF, Tab 7 at 62-64, Tab 9 at 5, 36. Thus, on
remand, if the administrative judge finds that the appellant made a protected
disclosure, she should address not only whether the appellant proved contributing
factor as to his original disclosure, but also whether he did so as to his March
2017 disclosure. If the administrative judge concludes that the appellant did not
15
prove contributing factor under the knowledge/timing test, she should consider
other evidence of contributing factor, if appropriate, such as evidence pertaining
to the strength or weakness of the agency’s reasons for taking the personnel
action, whether the whistleblowing was personally directed at the proposing or
deciding officials, and whether these individuals had a desire or motive to
retaliate against the appellant. Dorney v. Department of the Army, 117 M.S.P.R.
480, ¶ 15 (2012). .
On remand, if the administrative judge finds that the appellant failed to
prove his prima facie case of whistleblower reprisal, she should not go on to
determine whether the agency proved by clear and convincing evidence that it
would have, absent his disclosure, removed the appellant. 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 of whistleblower retaliation.
Clarke v. Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19 n.10 (2014),
aff’d per curiam, 623 F. App’x 1016 (Fed. Cir. 2015).
We make no findings here as to whether the appellant can prove his prima
facie case. We also do not determine whether, if he does, the agency can prove
its affirmative defense. Those decisions can only be made in the first instance by
the administrative judge after the hearing the appellant requested has taken place.
Discrimination based on race and age
Additionally, the appellant below alleged discrimination based on age and
race. IAF, Tab 18 at 4. Following the issuance of the initial decision in this
case, the Board issued Pridgen v. Office of Management and Budget, 2022 MSPB
31, ¶¶ 20-25, 30, which clarified the proper analytical framework to be applied to
affirmative defenses of Title VII discrimination. Under Pridgen, the appellant
bears the initial burden of proving by preponderant evidence that the prohibited
consideration was a motivating factor in the contested personnel action. Pridgen,
2022 MSPB 31, ¶ 40. An appellant may prove a claim of discrimination under
Title VII by a combination of direct or indirect evidence, including suspicious
16
timing, statements, or actions by agency officials from which an inference of
discrimination might be drawn, evidence concerning the agency's treatment of
similarly situated individuals outside the appellant's protected class, and evidence
that the agency's stated reasons for the action were pretextual. Id. ¶ 24. None of
the above types of evidence will be needed in every case. Id. On remand, the
appellant should be provided the opportunity to present additional evidence
regarding his discrimination claims at the hearing in accordance with the Board’s
decision in Pridgen.
Should the agency prove its charge and the appellant fail to establish his
affirmative defenses, the administrative judge must determine whether the agency
has met its burden of establishing a nexus between the action and the efficiency
of the service, and that the penalty imposed is within the tolerable bounds of
reasonableness. Hall v. Department of Defense, 117 M.S.P.R. 687, ¶ 6 (2012).
ORDER
For the reasons discussed above, we remand this case to the Western
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.