The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PAULA KOHLHAPP, DOCKET NUMBER
Appellant, DE-0752-19-0202-I-2
v.
DEPARTMENT OF HOMELAND DATE: October 11, 2024
SECURITY,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Georgia A. Lawrence , Esquire, and Shaun C. Southworth , Esquire,
Atlanta, Georgia, for the appellant.
Michael L. Gurnee , Esquire, Centennial, Colorado, 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.
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her removal appeal as moot and found that she was not entitled to
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
compensatory damages. For the reasons discussed below, we GRANT the
appellant’s petition for review, VACATE the initial decision, and REMAND the
case to the Denver Field Office for further adjudication in accordance with this
Remand Order.
BACKGROUND
The appellant was a Supervisory Immigration Services Officer with the
agency’s U.S. Citizenship and Immigration Services department at its Nebraska
Service Center. Kohlhapp v. Department of Homeland Security , MSPB Docket
No. DE-0752-19-0202-I-1, Initial Appeal File (IAF), Tab 7 at 12. On January 15,
2019, the agency proposed to remove her based on one charge of failure to follow
instructions and one charge of lack of candor. Id. at 35-36. After the appellant
submitted a written response, the deciding official sustained the charged
misconduct and affirmed the penalty of removal. Id. at 13-15.
The appellant filed a Board appeal challenging her removal and alleging
whistleblower retaliation and reprisal based on prior equal employment
opportunity (EEO) activity. IAF, Tab 1, Tab 18 at 4-6. The administrative judge
subsequently held a hearing. IAF, Tab 28, Tab 30. After the hearing, the agency
informed the Board that it intended to rescind the removal action, expunge the
associated documents from the appellant’s record, and return her to work, thus
rendering the appeal moot. IAF, Tab 33 at 4. The agency informed the Board
that this process would take between 90 and 120 days to complete. Id. The
administrative judge then dismissed the appeal without prejudice to refile pending
the agency’s restoration of the appellant to the status quo ante. IAF, Tab 38
at 1-4.
The appellant subsequently refiled her appeal alleging that she had not been
restored to the status quo ante. Kohlhapp v. Department of Homeland Security,
MSPB Docket No. DE-0752-19-0202-I-2, Appeal File (I-2 AF), Tab 1 at 3. The
administrative judge ordered the appellant to show cause as to why the appeal
3
should not be dismissed as moot, and, after the parties responded, the
administrative judge issued an initial decision dismissing the appeal as moot.
I-2 AF, Tabs 4-6, Tab 9, Initial Decision (ID) at 1. Therein, the administrative
judge found that the agency presented compelling reasons for not returning the
appellant to an on-duty paid status, but rather placing her on administrative leave
in a non-duty paid status pending a second removal action. 2 ID at 6-8.
Accordingly, the administrative judge found that the agency otherwise returned
the appellant to the status quo ante. ID at 8. The administrative judge then
addressed the appellant’s outstanding claims for damages based on whistleblower
retaliation and reprisal for prior EEO activity, but found that the appellant failed
to meet her burden as to both affirmative defenses. ID at 9-23.
The appellant has filed a petition for review, arguing that her appeal is not
moot because the agency has failed to return her to the status quo ante. 3 Petition
for Review (PFR) File, Tab 1 at 15. She further challenges the administrative
judge’s analysis regarding her affirmative defenses of whistleblower retaliation
and reprisal for prior EEO activity. Id. at 15-16. The agency has responded to
her petition for review. PFR File, Tab 3.
2
The agency subsequently took a second removal action against the appellant, which
she similarly appealed to the Board. Kohlhapp v. Department of Homeland Security,
MSPB Docket No. DE-0752-20-0252-I-1. The administrative judge therein issued an
initial decision affirming the agency’s removal action. Kohlhapp, MSPB Docket
No. DE-0752-20-0252-I-1, Initial Decision at 1 (Feb. 18, 2021). The second removal
appeal is being addressed by the Board separately, and its outcome has no effect on the
instant appeal.
3
The appellant’s petition for review here challenges both the instant mootness appeal
and the second removal appeal. PFR File, Tab 1 at 4, 14. As the second removal
appeal is being addressed separately, we only address the arguments concerning the
mootness of her original appeal.
4
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge erroneously determined that the first removal appeal
was moot.
The Board’s jurisdiction is determined by the nature of an agency’s action
at the time an appeal is filed with the Board. Sredzinski v. U.S. Postal Service,
105 M.S.P.R. 571, ¶ 4 (2007). An agency’s unilateral modification of its adverse
action after an appeal has been filed cannot divest the Board of jurisdiction unless
the appellant consents to such divesture or unless the agency completely rescinds
the action being appealed. Id. Thus, the Board may dismiss an appeal as moot if
the appealable action is canceled or rescinded by the agency. Id. For an appeal
to be deemed moot, the agency’s rescission must be complete, i.e., the appellant
must be returned to the status quo ante and not left in a worse position as a result
of the cancellation than she would have been in if the matter had been adjudicated
and she had prevailed. Price v. U.S. Postal Service, 118 M.S.P.R. 222, ¶ 8
(2012). If an appeal is not truly moot despite cancellation of the action under
appeal, the proper remedy is for the Board to retain jurisdiction and to adjudicate
the appeal on the merits. Id.
An agency does not return an employee to the status quo ante when it
rescinds the appealed action and then, instead of returning the appellant to duty,
places her on administrative leave pending a second proposed removal action.
See Sredzinski, 105 M.S.P.R. 571, ¶ 8; Hudson v. Department of Housing and
Urban Development, 54 M.S.P.R. 139, 142 (1992). However, an appeal may be
considered moot notwithstanding the agency’s refusal to return the appellant to
duty status if the agency’s refusal to do so is supported by a strong overriding
interest. See Sredzinski, 105 M.S.P.R. 571, ¶ 8; see also Shelton v. U.S. Postal
Service, 53 M.S.P.R. 483, 485 (1992) (finding that an agency’s failure to restore
an appellant to his former position must be supported by a strong overriding
interest).
5
The administrative judge found that the agency demonstrated a compelling
reason for not returning the appellant to her position of record based upon the
agency’s concerns about the appellant’s conduct in that position and because of
the pending second removal action. ID at 8. At the outset, we note that the
agency did not affirmatively make this argument; rather, the agency merely
submitted highlighted portions of its administrative leave policies. I -2 AF, Tab 6
at 94. Per the policies, the agency may place an employee in an administrative
leave status when there is reasonable cause to believe the employee has
committed a criminal offense, or “where there is a threat to employees or property
(or information/databases).” Id. The agency has not shown that any of these
situations are present here. Furthermore, the existence of a second pending
removal, on its own, is not sufficient to establish a strong overriding interest. See
Sredzinski, 105 M.S.P.R. 571, ¶ 8 (finding that an agency’s placement of an
appellant on administrative leave pending the resolution of a subsequent proposed
removal, standing alone, was not sufficient to establish a strong overriding
interest); see also Noble v. Department of Justice, 68 M.S.P.R. 524, 527 (1995)
(determining that the appellant was not returned to the status quo ante when the
agency placed him on administrative leave pending the outcome of a proposed
removal action); Hudson, 54 M.S.P.R. at 139, 142; Cf. Dalton v. Department of
Justice, 66 M.S.P.R. 429, 434 (1995) (finding compelling reasons for not
returning an employee to duty status based on the agency’s proffered concerns, in
the form of an affidavit, about the appellant’s possible sexual contacts with
inmates and the agency’s ongoing investigation). Further still, the agency did not
place the appellant in an administrative leave status pending the outcome of the
first proposed removal, which cuts against any argument regarding concerns
about the appellant’s conduct in her position. IAF, Tab 7 at 39; see Rickels v.
Department of the Treasury, 42 M.S.P.R. 596, 603-04 (1989) (finding
unpersuasive the agency’s argument that the employee could not be trusted in his
prior position when it did not place him in an administrative duty status pending
6
its removal action). Accordingly, we find that the administrative judge erred in
determining that the agency demonstrated a strong overriding interest in not
returning the appellant to a duty status.
Although the administrative judge erred in finding that the agency had a
strong overriding interest, the matter may now be moot because the agency
removed the appellant a second time. Kohlhapp v. Department of Homeland
Security, MSPB Docket No. DE-0752-20-0252-I-1, Tab 1 at 30-34; see Dellera v.
Department of Housing and Urban Development , 65 M.S.P.R. 636, 642 (1994)
(finding that an appeal could still be dismissed as moot despite the possibly
improper placement of an employee on administrative leave following rescission
of a removal action because the agency had removed the employee a second time,
precluding any effective relief), aff’d, 82 F.3d 434 (Fed. Cir. 1996) (Table) and
overruled on other grounds by Haskins v. Department of the Navy , 106 M.S.P.R.
616 (2007). However, the matter is not moot if the appellant lost overtime pay
due to her improper placement on administrative leave. See Crosby v. U.S. Postal
Service, 74 M.S.P.R. 98, 105 (1997) (finding that an employee is entitled to
recover any overtime or other lost pay she would have earned during a period of
erroneously enforced administrative leave); Rauccio v. U.S. Postal Service,
44 M.S.P.R. 243, 245 (1990) (finding an appeal was not moot when the appellant
was placed on administrative leave pending a new removal action and may not
have received night differential pay during this administrative leave period).
The appellant asserted before the administrative judge that, during the
period that she was placed on administrative leave pending the second removal,
she was not allowed to earn overtime hours. I-2 AF, Tab 5 at 16. The
administrative judge did not address this argument. Because the agency did not
refute the appellant’s claimed entitlement to overtime pay or otherwise provide a
full accounting of the appellant’s back pay award, we must remand this appeal to
address this matter.
7
Overtime back pay may be computed based on either the appellant’s own
overtime history or the average overtime hours worked by similarly situated
employees during the relevant time period. Rittgers v. Department of the Army,
123 M.S.P.R. 31, ¶ 13 (2015). Although the appellant is not entitled to receive a
windfall, she is entitled to be restored to the status quo ante, and the agency must
use the method of computation most likely to achieve this goal. Id. The
appellant additionally argued that her placement on administrative leave forced
her to incur a cost associated with Microsoft Outlook due to her loss of access to
her Government email or computer, and also that she was not allowed to receive a
yearly bonus because her performance appraisal was delayed by her placement on
administrative leave. I-2 AF, Tab 5 at 14.
On remand, the administrative judge should permit the parties to engage in
discovery, as necessary, to address any pay lost as a result of the agency placing
the appellant on administrative leave following rescission of its initial removal
action. Because there remains a factual dispute as to whether the appellant has
received all of the relief that she could have received if the matter had been
adjudicated and she had prevailed, these matters must be addressed and resolved
before the appeal can be dismissed as moot.
We remand the appellant’s affirmative defenses for further adjudication.
In addition to the aforementioned issues regarding whether the agency
returned the appellant to status quo ante sufficient to render the appeal moot,
there remains the issue of the appellant’s entitlement to damages based on both
her claim of whistleblower retaliation and reprisal for prior EEO activity. See
Jenkins v. Environmental Protection Agency, 118 M.S.P.R. 161, ¶ 13 (2012)
(finding an appeal not moot when the appellant could obtain further relief based
on her whistleblowing reprisal claim); Harris v. Department of the Air Force,
96 M.S.P.R. 193, ¶ 11 (2004) (finding rescission of an adverse action does not
render an appeal moot when the appellant may be entitled to compensatory
damages based on a claim of reprisal for prior EEO activity).
8
The administrative judge erred in his analysis of the appellant’s affirmative
defense of whistleblower retaliation.
To prevail on an affirmative defense of whistleblower reprisal, once the
agency proves its adverse action case by a preponderance of the evidence, the
appellant must demonstrate by preponderant evidence that she made a protected
disclosure or engaged in protected activity and that the disclosure or activity was
a contributing factor in the adverse action. Shibuya v. Department of Agriculture,
119 M.S.P.R. 537, ¶ 19 (2013). If the appellant establishes a protected disclosure
or activity and contributing factor by preponderant evidence, then the burden of
persuasion shifts to the agency to prove by clear and convincing evidence that it
would have taken the same action in the absence of the appellant’s protected
disclosure or activity. 5 U.S.C. § 1221(e)(2); Shibuya, 119 M.S.P.R. 537, ¶ 32.
The appellant here alleged that she disclosed voucher fraud to the agency’s
Office of Inspector General (OIG), disclosed to the OIG, Office of Special
Counsel (OSC), and the agency’s Office of Security and Integrity (OSI) that the
proposing official engaged in inappropriate nepotism, and disclosed wrongdoing
by her ex-husband to various OIGs. PFR File, Tab 1 at 15-16. The
administrative judge found that, as part of her prima facie burden of proof, the
appellant sufficiently demonstrated that she had made protected disclosures and
engaged in protected activity. ID at 9-13. The parties do not challenge these
findings on review, and we decline to disturb them. The administrative judge
nonetheless found that the appellant failed to establish that her whistleblowing
was a contributing factor in the agency’s removal action. ID at 14-19. The
appellant challenges this finding, arguing that the proposing and deciding
officials had both actual and constructive knowledge of her whistleblowing in
close proximity to the agency’s adverse action. PFR File, Tab 1 at 15-16.
An employee may demonstrate that a disclosure was a contributing factor
in a personnel action through circumstantial evidence, such as evidence that the
official taking the personnel action knew of the disclosure, and that the personnel
9
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.
Chambers v. Department of the Interior, 116 M.S.P.R. 17, ¶ 25 (2011).
Moreover, an appellant can show that a disclosure was a contributing factor in a
personnel action by proving that the official taking the action had constructive
knowledge of the protected disclosure. Dorney v. Department of the Army,
117 M.S.P.R. 480, ¶ 11 (2012). An appellant may establish constructive
knowledge by demonstrating that an individual with actual knowledge of the
disclosure influenced the official accused of taking the retaliatory action. Id.
The U.S. Supreme Court has adopted the term “cat’s paw” to describe a case in
which a particular management official, acting because of an improper animus,
influences an agency official who is unaware of the improper animus when
implementing a personnel action. Id.
The appellant alleged that the proposing official in the first removal action
was the cat’s paw. PFR File, Tab 1 at 15. On review, the appellant alleged that
the proposing official had actual knowledge of her whistleblowing prior to
proposing her removal, including her disclosure from 2013 or 2014 to the
agency’s OIG regarding voucher fraud by a union official, her 2018 disclosure
regarding her ex-husband to various OIGs, as well as her separate disclosures to
the OIG, OSC, and the agency’s OSI alleging that the proposing official engaged
in inappropriate nepotism. Id. at 15-16. The administrative judge did not make a
finding as to whether the proposing official had actual knowledge of these
disclosures and activities prior to the proposed removal. Rather, the
administrative judge found that the proposing official’s role was “ministerial,”
and thus she could not have influenced the deciding official. ID at 18-19. In
support of this finding, the administrative judge noted that the proposing official
played no role in initiating the OSI investigation that led to the removal action.
Id. We find that this was erroneous.
10
Regardless of whether the proposing official played a role in initiating the
investigation that led to the agency’s removal action, she nonetheless determined
both of the charges to levy against the appellant and the penalty to be proposed.
IAF, Tab 7 at 35-38. As such, the proposing official played more than a
ministerial role in the agency’s action, and her knowledge of the appellant’s
whistleblowing could have influenced the deciding official. See Chambers,
116 M.S.P.R. 17, ¶ 58 (noting that a proposing official’s strong motive to
retaliate may be imputed to a deciding official).
On remand, the administrative judge must make findings regarding whether
the proposing official had actual knowledge of the appellant’s whistleblowing,
and therefore whether the deciding official had constructive knowledge of the
whistleblowing. In this regard, the appellant testified that she had discussed her
nepotism claim “for years” with numerous agency individuals, including directly
with the proposing official, as well as with the Chief of Staff who initiated the
OSI investigation that led to the agency’s removal action. IAF, Tab 7 at 54-56;
Tab 30, Hearing Compact Disc (HCD) 2, File 4 at 41:00 (testimony of the
appellant). The appellant further testified that she specifically told the proposing
official about her 2018 disclosures to various OIGs regarding her ex-husband.
HCD2, File 4 at 42:10 (testimony of the appellant). As discussed above, the
administrative judge made no findings as to whether the proposing official had
any knowledge of these disclosures prior to issuing the proposed removal.
Should the administrative judge find such constructive knowledge on remand, he
must then determine whether the agency has proven by clear and convincing
evidence that it would have taken the adverse action in the absence of the
appellant’s whistleblowing.
The administrative judge erred in his analysis of the appellant’s affirmative
defense of reprisal for prior EEO activity.
The administrative judge found that, although the deciding official was
vaguely aware of the appellant’s EEO activity, there was insufficient evidence to
11
demonstrate any animus or motive to retaliate against the appellant. ID at 22.
For the same reasons set forth in his analysis of the appellant’s whistleblower
retaliation affirmative defense, the administrative judge similarly found that the
proposing official did not influence the deciding official. ID at 22-23. The
appellant on review challenges this analysis, again arguing that the proposing
official was the cat’s paw. PFR File, Tab 1 at 12, 15-16.
Following issuance of the initial decision, the Board has clarified the
standard appropriate in cases of reprisal for protected activity based upon her
disability, which are protected under the Rehabilitation Act. Pridgen v. Office of
Management and Budget, 2022 MSPB 31, ¶¶ 44-47. The Board has recognized
that a more stringent standard applies in the context of retaliation claims arising
under the Rehabilitation Act, such that the appellant must prove that her prior
EEO activity was a “but-for” cause of the retaliation. Id.
The appellant here alleges that she filed EEO complaints in which she
complained of disability discrimination. IAF, Tab 18 at 5-6. Specifically, she
alleges that she has filed numerous EEO complaints against the proposing
official, in 2008 and 2011, in which the proposing official was involved in
mediation. IAF, Tab 23 at 17. Moreover, in October 2018, the appellant
contacted an agency EEO counselor, and on December 10, 2018, the appellant
filed a formal EEO complaint against the proposing official. Id. at 10-26. On
December 17, 2018, the appellant informed both the proposing and deciding
officials that she had filed a formal EEO complaint alleging reprisal and a hostile
work environment. IAF, Tab 24 at 46. Less than 1 month later, on January 15,
2019, the agency proposed her removal. IAF, Tab 7 at 35. The administrative
judge’s failure to consider the proposing official’s knowledge of the appellant’s
numerous EEO complaints specifically against her, and the short proximity
between the December 2018 EEO complaint and the proposed removal, was
erroneous. See Naval Station Norfolk-Hearing 2 v. Department of the Navy ,
123 M.S.P.R. 144, ¶ 30 (2016) (noting that an individual’s role in the
12
decision-making process that leads to an adverse action cannot be ignored in
considering a claim of discrimination). Accordingly, on remand the
administrative judge must consider these issues and any applicable evidence in
addressing the appellant’s affirmative defense. As set forth above, the
administrative judge must apply the “but-for” causation standard in analyzing the
appellant’s claims of retaliation for her prior protected activity under the
Rehabilitation Act.
ORDER
For the reasons discussed above, we remand this case to the Denver Field
Office for further adjudication in accordance with this Remand Order. 4
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
4
In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.