explaining that the Board lacks jurisdiction in an IRA appeal over a claim of reprisal for filing an EEO complaint
How later courts described this case
- explaining that the Board lacks jurisdiction in an IRA appeal over a claim of reprisal for filing an EEO complaint
- finding that, given the contextual clues in the record, the petitioner made a nonfrivolous allegation of contributing factor even though he did not specifically identify the agency officials who heard his disclosures
- holding that a nonselection for a position is a failure to take a personnel action under 5 U.S.C. § 2302(b)(8) within the scope of the Board’s IRA jurisdiction
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SARAH K. FOX, DOCKET NUMBER
Appellant, DC-1221-23-0122-W-1
v.
DEPARTMENT OF COMMERCE, DATE: November 20, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Sarah K. Fox , Stoughton, Massachusetts, pro se.
Kirsten Z. Kuitu , Washington, D.C., 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
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review,
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
VACATE the initial decision, and REMAND the case to the Washington Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 During the period at issue in this appeal, the appellant was employed in
various positions as a Foreign Service Officer within the U.S. and Foreign
Commercial Service (Commercial Service) branch of the International Trade
Administration (ITA). Initial Appeal File (IAF), Tab 1 at 1, Tab 5 at 4-5. In
July 2019, she was assigned as the Principal Commercial Officer, FS-02, at the
U.S. Consulate General in Calgary, Canada. IAF, Tab 1 at 1, 9. In August 2019,
the appellant discovered that the agency’s computer server and server backup
tapes were being housed in an unsecured kitchen area and reported the discovery
to her supervisory chain. IAF, Tab 5 at 18-30. After further discussion with her
supervisory chain and agency information technology (IT) officials, arrangements
were made for the backup tapes to be sent to an agency office in Washington,
D.C., for processing and for the server to be relocated to a secure area. Id.
However, although 35 server tapes were originally sent to Washington D.C., only
27 of the tapes were ever actually received. Id. at 40-65.
¶3 On November 30, 2022, the appellant filed the instant IRA appeal alleging
that the agency curtailed her overseas tour of duty, denied her a detail
opportunity, and harassed her in retaliation for her protected disclosures
regarding IT security concerns. IAF, Tab 1 at 4, 6. She requested a hearing on
her appeal. Id. at 2. With her appeal, the appellant provided a copy of a
close-out letter from the Office of Special Counsel (OSC) dated September 26,
2022. Id. at 9.
¶4 The administrative judge issued a jurisdictional order apprising the
appellant of the applicable law and burden of proof requirements for an IRA
appeal and instructing her to submit evidence and argument establishing Board
jurisdiction over her appeal. IAF, Tab 3. The administrative judge directed the
3
appellant to file a statement that detailed each of her alleged protected disclosures
or activities and retaliatory personnel actions, identified the dates on which she
made the disclosures or engaged in the activities and to whom she made her
disclosures, and provided an explanation for how she exhausted each specific
claim with OSC. Id. at 7.
¶5 After the parties submitted their jurisdictional pleadings, IAF, Tabs 5-6, the
administrative judge issued an initial decision dismissing the appeal for lack of
jurisdiction, IAF, Tab 8, Initial Decision (ID) at 1, 17. She determined that the
only disclosures that the appellant exhausted were her disclosures of retaliation,
sexism, and racism to OSC and the Equal Employment Opportunity Commission
(EEOC) in December 2019. ID at 6-12. Alternatively, the administrative judge
concluded that even if the appellant exhausted her administrative remedies as to
her remaining alleged protected disclosures with OSC, she failed to
nonfrivolously allege that her disclosures concerned the type of wrongdoing
described under 5 U.S.C. § 2302(b)(8). ID at 13-17. As to the appellant’s
December 2019 OSC and EEOC disclosures, the administrative judge considered
whether these disclosures were protected activities within the scope of 5 U.S.C.
§ 2302(b)(9)(A)(i). ID at 12-13. She concluded that these disclosures were not
protected activities because the appellant did not raise a claim of reprisal for
whistleblowing to OSC or the EEOC. ID at 13.
¶6 The appellant has timely filed a petition for review of the initial decision
and a supplement to her petition for review. Petition for Review (PFR) File,
Tabs 1-2. The agency has filed a response in opposition to the petition for
review. PFR File, Tab 6.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 On review, the appellant argues that she contacted OSC regarding her
alleged whistleblowing activity in 2019 and exhausted her complaints with OSC
“multiple times at multiple levels,” and that the administrative judge erred by
4
finding that she failed to exhaust her administrative remedies. PFR File, Tab 1
at 4-6. The appellant also alleges that the initial decision inaccurately recounted
the timeline of events and requests a “full review” of her claims alleging
retaliation for her disclosures of fraud, waste, abuse, and IT security issues. Id. at
6-7. Finally, the appellant alleges that new and material evidence exists
regarding her claims, and she provides copies of two documents with her petition
for review. Id. at 5, 8-29. She also attaches additional documents with her first
supplemental petition for review pleading and submits a second and third
supplemental petition for review, as well as a motion for leave to file an
additional pleading. PFR File, Tabs 2, 5, 10, 12.
We grant the agency’s motion to strike the appellant’s second supplement to her
petition for review and deny the appellant’s motion for leave to file an
additional pleading.
¶8 The agency has filed a motion to strike the appellant’s second supplement to
her petition for review, observing that although the petition for review
acknowledgment letter granted the appellant’s request for an extension of time to
file a second supplement to her petition for review on or before September 1,
2023, the appellant did not do so until September 6, 2023, and did not provide an
explanation for her untimeliness or seek leave from the Clerk of the Board to file
the untimely pleading. PFR File, Tab 3 at 1, Tab 6 at 5. A late filed pleading
must be accompanied by a motion that shows good cause for the untimely filing
unless the Board has specifically granted an extension of time or a motion for an
extension is pending. 5 C.F.R. § 1201.114(g). The party filing the motion must
provide an explanation of the reasons for failing to request an extension,
accompanied by supporting documentation or other evidence. Id. The appellant
has failed to explain why she was unable to timely file or request a further
extension of time to file her second supplement to her petition for review.
Accordingly, we grant the agency’s motion and strike the untimely second
5
supplement to the appellant’s petition for review and have not considered it in
reaching our decision in this matter.
¶9 Additionally, on April 3, 2024, after the record closed on review, the
appellant filed a request for leave to file an additional pleading alleging that she
had new evidence regarding “adverse actions of intimidation, coercion, and
harassment” by her agency. PFR File, Tab 10 at 3. She alleged that the new
pleading was necessary to “underscore[] and demonstrate[] the unfettered
retaliation of whistleblowers” at the agency and asserted that the evidence was
not available before the record closed in her appeal. Id. Based on the appellant’s
representations in her pleading, it appears that the purportedly new evidence
relates to actions taken by the agency that postdate the filing of her Board appeal
and thus could not have been exhausted in her complaint to OSC at issue in this
IRA appeal. Id. As such, the appellant has not explained how this purportedly
new evidence is relevant to the issue of Board jurisdiction over her IRA appeal.
See Cleaton v. Department of Justice, 122 M.S.P.R. 296, ¶ 7 (2015) (explaining
that the Board will not consider evidence submitted for the first time on review
absent a showing that the evidence is of sufficient weight to warrant an outcome
different from that of the initial decision), aff’d, 839 F.3d (Fed. Cir. 2016).
Consequently, we conclude that she has not demonstrated that any such evidence
is material to her appeal, and we DENY her request for leave to file an additional
pleading. See 5 C.F.R. § 1201.114(a)(5), (k).
The appellant exhausted her remedy with OSC regarding all of her disclosures
and activities and one personnel action.
¶10 To establish Board jurisdiction over an IRA appeal, an appellant must
exhaust her administrative remedies before OSC and make nonfrivolous
allegations that (1) she 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
6
action as defined by 5 U.S.C. § 2302(a)(2)(A). See Chambers v. Department of
Homeland Security, 2022 MSPB 8, ¶¶ 5, 10, 14. An appellant in an IRA appeal
must prove by preponderant evidence that she exhausted her administrative
remedies by seeking corrective action from OSC before seeking corrective action
from the Board. 5 U.S.C. § 1214(a)(3); Chambers, 2022 MSPB 8, ¶¶ 10-11; 115
C.F.R. § 1201.57(c)(1). “[T]he Board’s jurisdiction . . . is limited . . . to those
issues that were previously raised with OSC.” Chambers, 2022 MSPB, ¶ 10
(quoting Miller v. Merit Systems Protection Board, 626 F. App’x 261, 267 (Fed.
Cir. 2015)).
¶11 The substantive requirements of exhaustion are met when an appellant
provides OSC with a sufficient basis to pursue an investigation; however, an
appellant may give a more detailed account of her whistleblowing activity before
the Board than she did to OSC. Chambers, 2022 MSPB 8, ¶ 10 (citing Briley v.
National Archives and Records Administration, 236 F.3d 1373, 1378 (Fed. Cir.
2001)). An appellant may demonstrate exhaustion through her initial OSC
complaint, correspondence with OSC, or other sufficiently reliable evidence, such
as an affidavit or declaration attesting that she raised with OSC the substance of
the facts in the MSPB appeal. Id., ¶ 11. An appellant’s unrebutted attestation on
her Appeal Form that she raised with OSC the substance of the facts in her appeal
is sufficient to prove exhaustion. See id., 2022 MSPB 8, ¶ 11 n.7.
¶12 In the initial decision, the administrative judge summarized the appellant’s
appeal as alleging that she was subjected to retaliatory personnel actions in
reprisal for the following protected disclosures or activities: her disclosure of
possible violations of IT security policies to her supervisory chain starting around
August 7, 2019 (disclosure 1); her disclosure of the same possible IT security
issues to the agency’s Office of the Inspector General (OIG) in May 2020
(disclosure 2); her disclosure of the potential theft of the server backup tapes to
her supervisory chain on or around January 23, 2020 (disclosure 3); and her
7
complaints to OSC, through the equal employment opportunity (EEO) process,
and to the OIG starting in late 2019 (disclosure/protected activity 4). ID at 5.
Disclosures 1 and 3
¶13 For disclosure 1, the administrative judge determined that although the
appellant described the nature of this disclosure in her IRA appeal as alleging
“possible violations of IT security policies . . . to her supervisory chain,” OSC’s
close-out letter identified only OSC, the EEOC, the agency’s EEO office, and the
OIG as the parties to whom she made that disclosure. ID at 6. For disclosure 3,
the appellant’s claim that she disclosed the potential theft of the server backup
tapes to her supervisory chain on or around January 23, 2020, the administrative
judge determined that, as with disclosure 1, the appellant’s OSC complaint did
not include any allegation that she raised this disclosure with her supervisors. As
to both disclosures 1 and 3, the administrative judge also found that the appellant
did not provide evidence demonstrating that she amended her OSC complaint to
include her alleged supervisory disclosures, and OSC’s close-out letter did not
identify them. ID at 6-7, 9-10. As a result, the administrative judge concluded
that the appellant also failed to exhaust these disclosures with OSC. ID at 7, 10.
¶14 We disagree with these findings. As the administrative judge observed, the
section of the appellant’s OSC complaint addressing the nature of her disclosures
discuss her allegations of retaliation, sexism, and racism, and wrongdoing in
connection with a monitoring investigation within the agency’s Investigations and
Threat Management Service during the period from May through June 2022. IAF,
Tab 5 at 130-31. However, the appellant also identified that the wrongdoing she
disclosed while serving in her position in Canada concerned “serious IT security
issues and theft (at the very least).” Id. at 132. She also identified several
officials in her supervisory chain as retaliating officials and noted that all of those
officials were accused in, and aware of, her disclosures. Id. at 131-32. Later in
her complaint, she again identified that she disclosed “multiple fraudulent
activities, security issues, and theft at the U.S. Consulate Calgary.” Id. at 135.
8
¶15 With her Board appeal, the appellant gave additional context to these claims
by providing emails demonstrating that she had disclosed the unsecured server
and the lost backup tapes to numerous officials in her supervisory chain; and she
reiterated in her jurisdictional response, submitted under penalty of perjury, that
her complaint to OSC concerned these allegations and that agency officials
retaliated against her because of her disclosure of violations of IT regulations and
policies. IAF, Tab 5 at 10, 18-30, 40-65; Chambers, 2022 MSPB 8, ¶¶ 10-11 &
n.7. Finally, as indicated in its notice to the appellant that it was terminating her
inquiry, OSC recognized as one of the core issues of her complaint that she had
alleged retaliation by agency officials for her disclosure of “information
technology concerns at the Consulate General Calgary in 2019.” IAF, Tab 1 at 9.
Based on the foregoing, we find that the appellant proved that she provided OSC
with a sufficient basis to pursue an investigation into her claim that she disclosed
the IT security issues and the lost server backup tapes to her supervisory chain.
We conclude that the appellant exhausted alleged disclosures 1 and 3.
Disclosure 2 and disclosure/protected activity 4
¶16 For disclosure/protected activity 4, which concerns the appellant’s
complaints to OSC, the OIG, and the agency’s EEO office and/or the EEOC,
starting in late 2019, the administrative judge determined that the appellant
exhausted her administrative remedies regarding her complaints to OSC and
through the EEO process starting in late 2019. ID at 10-12. We agree. As the
administrative judge correctly noted, the appellant identified in her OSC
complaint that she had made “multiple disclosures to OSC since 2019,” and
identified OSC, the EEOC, and the agency’s EEO office, the Office of Civil
Rights, as parties to whom she made her disclosures “since 2019 when [she]
arrived at U.S. Consulate Calgary.” IAF, Tab 5 at 130-31, 134. OSC also
identified the appellant’s “series of complaints with OSC and [the agency’s]
equal employment opportunity office” beginning in 2019 as matters it
investigated in its September 26, 2022 close-out letter. Id. at 172. Accordingly,
9
the administrative judge correctly concluded that the appellant exhausted her
administrative remedies regarding her claim that she engaged in protected activity
under 5 U.S.C. § 2302(b)(9) in connection with these complaints.
¶17 Conversely, the administrative judge concluded that the appellant failed to
exhaust her claim that she made a protected disclosure or engaged in a protected
activity in connection with her complaint to the agency’s OIG because she failed
to identify whether she provided a copy of her May 29, 2020 OIG complaint to
OSC or to explain the nature of the information she provided about her OIG
complaint to OSC, and so OSC could not have had a sufficient basis upon which
to pursue an investigation leading to corrective action. ID at 10-11. We disagree
and instead conclude that the evidence the appellant has provided is sufficient for
the purpose of proving that she exhausted this claim with OSC.
¶18 In her OSC complaint, the appellant identified the OIG as one of several
entities to whom she made her protected disclosures. IAF, Tab 5 at 131.
Although the appellant did not specify the dates on which she disclosed
information to the OIG in her OSC complaint, she generally identified that she
had been making disclosures to the various entities “since 2019.” Id. at 131, 134.
With her jurisdictional response, the appellant provided a June 2, 2020 email
from the agency’s OIG acknowledging receipt of her OIG hotline complaint on
May 29, 2020, as well as a copy of the interview questions and her responses
pertaining to her complaint. Id. at 66-78. She also clarified in her jurisdictional
response, filed under penalty of perjury, that her complaint to the OIG concerned
possible violations of IT security policies. Id. at 3, 9, 13, 130-36. Although the
administrative judge identified a single reference in the appellant’s jurisdictional
response to an OIG complaint dated May 20, 2020, there is no other indication in
the record that the appellant filed any other complaint with the OIG that was
exhausted by OSC’s September 26, 2022 close-out letter. 2 IAF, Tab 5 at 13, 172.
2
Given the closeness in time between the May 20, 2020 and May 29, 2020 dates, as
well as the fact that the disclosures the appellant alleged she raised in relation to the
purported May 20, 2020 complaint concern the exact same IT security failures as were
10
Accordingly, we conclude that she exhausted with OSC her protected activity of
filing a complaint with the OIG on or about May 29, 2020.
¶19 The administrative judge separately considered the appellant’s claim that
she disclosed the IT security issues to the agency’s OIG as a potential protected
disclosure under 5 U.S.C. § 2302(b)(8) (disclosure 2) and as a protected activity
under 5 U.S.C. § 2302(b)(9)(C) but concluded that the appellant failed to exhaust
both claims. ID at 7-12. Disclosing information to an agency’s OIG is protected
activity under 5 U.S.C. § 2302(b)(9)(C) regardless of its content. Pridgen v.
Office of Management and Budget, 2022 MSPB 31, ¶ 62. Therefore, we need not
separately consider whether the appellant exhausted the disclosures she made to
the OIG in her May 2020 complaint.
Retaliatory personnel actions
¶20 Because the administrative judge determined that the appellant failed to
exhaust her claimed disclosures and activity, she did not address whether the
appellant exhausted any alleged personnel actions. The Board has jurisdiction
when the appellant exhausts her administrative remedies before OSC and makes a
nonfrivolous allegation that at least one alleged personnel action was taken in
reprisal for at least one alleged protected disclosure. Skarada v. Department of
Veterans Affairs, 2022 MSPB 17, ¶ 13. Although the appellant raised a number
of alleged personnel actions to OSC, the only personnel action she has raised
during the course of this appeal is the September 2022 denial of a detail
opportunity by the Acting Director of the U.S. Export Assistance Center (her
then-first-line supervisor), with the input of the Chief of Workforce Relations and
Planning (her former second-line supervisor) and the Mid-Atlantic Regional
Director of ITA (her subsequent second-line supervisor). IAF, Tab 5 at 14-15,
130-36, 172. Therefore, we focus on that alleged personnel action. The appellant
provided copies of emails between herself and OSC dated September 22, 2022,
identified in the copy of the May 29, 2020 OIG complaint the appellant provided with
her jurisdictional response, the reference to May 20, 2020 date is more likely than not
an inadvertent typographical error. IAF, Tab 5 at 9, 13, 68-78.
11
identifying that these officials denied her the requested detail opportunity. Id. at
153-56, 164-70. Further, OSC referenced the detail denial in its close-out letter.
Id. at 172. Accordingly, we conclude that the appellant exhausted her
administrative remedy with respect to the denial of a detail. 3
¶21 In summary, we agree with the administrative judge that the appellant
exhausted her administrative remedies with OSC regarding her claims that she
filed a prior OSC complaint and an EEO complaint. However, we disagree with
the administrative judge’s finding that the appellant failed to exhaust her claim
that she disclosed possible violations of IT security policies to her supervisory
chain in 2019, and the potential theft of the server backup tapes to her
supervisory chain on or around January 23, 2020. We also disagree with her
finding that the appellant failed to exhaust her claim that she made a protected
disclosure or engaged in protected activity in connection with her May 2020 OIG
complaint and instead conclude that she exhausted that claim. Finally, we
conclude that the appellant exhausted her claim that she was subjected to a
personnel action in connection with her nonselection for a detail opportunity in
September 2022.
The appellant nonfrivolously alleged that she was subjected to a personnel action.
¶22 Nonselections and decisions on details constitute personnel actions for the
purpose of an IRA appeal. 5 U.S.C. § 2302(a)(2)(A)(i), (iv); see Ruggieri v.
Merit Systems Protection Board, 454 F.3d 1323, 1325-27 (Fed. Cir. 2006)
(holding that a nonselection for a position is a failure to take a personnel action
under 5 U.S.C. § 2302(b)(8) within the scope of the Board’s IRA jurisdiction).
Accordingly, we conclude that the appellant nonfrivolously alleged that she was
3
The issue of jurisdiction is always before the Board and may be raised by either party
or sua sponte by the Board at any time during a Board proceeding. Moncada v.
Executive Office of the President, Office of Administration , 2022 MSPB 25, ¶ 12.
Therefore, the appellant may raise additional alleged personnel actions on remand,
consistent with the administrative judge’s orders. We make no findings here as to the
Board’s jurisdiction over any additional such alleged personnel actions.
12
subjected to a retaliatory personnel action when her then-first-line and
second-line supervisors denied her a detail opportunity in September 2022. 4
The appellant nonfrivolously alleged that she made protected disclosures and
engaged in protected activity.
The appellant nonfrivolously alleged that her disclosures concerning
IT security failures were protected under 5 U.S.C. § 2302(b)(8)
¶23 The administrative judge alternatively found that, even if the appellant
exhausted disclosures 1 and 3 with OSC, she nevertheless failed to nonfrivolously
allege that a reasonable person in her position would have believed her
disclosures evidence any category of wrongdoing described in 5 U.S.C. § 2302(b)
(8). ID at 13-17. Specifically, the administrative judge determined that the
appellant’s alleged disclosures of “violations of IT security policies” to various
agency officials were unprotected for the following reasons: (1) her claims were
broad and generalized and did not clearly implicate an identifiable violation of
law, rule, or regulation, (2) the appellant raised merely hypothetical risks to the
agency, she expressed her concerns equivocally, and her concerns did not rise to
the level of gross mismanagement, (3) the appellant contemplated potential
alternative explanations for the apparent theft of the server backup tapes, and so
her “vague accusation” did not constitute a nonfrivolous allegation of a violation
of a law, rule, or regulation, and (4) the appellant was unable to identify any
agency policy, directive, or regulation that she believed may have been violated
by the IT security issues she identified. ID at 14-17.
4
In framing the allegations in her jurisdictional response, the appellant alleged both
that she was subjected to a personnel action when she was “denied the opportunity to
apply for a detail,” and that her supervisor was personally responsible for the decision
“to deny her the detail. . . .” IAF, Tab 5 at 14-15. It is unclear from the record whether
the appellant actually applied for and was denied this detail opportunity, and whether
her supervisor’s support was required in order for her to apply for the detail. IAF,
Tab 5 at 157-70. This distinction is not dispositive at the jurisdictional stage, but it
may become important in determining whether the appellant proves on the merits that
she suffered a personnel action.
13
¶24 We disagree and instead conclude that the appellant’s disclosures of the
improperly secured server and lost server backup tapes identified in disclosures 1
and 3 would be, if proven, protected under 5 U.S.C. § 2302(b)(8). See 5 C.F.R.
§ 1201.4(s) (defining a nonfrivolous allegation as an assertion that, if proven,
could establish the matter at issue). A protected disclosure is a disclosure of
information that an 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.
Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 12 (2014). A reasonable
belief exists if a disinterested observer with knowledge of the essential facts
known to and readily ascertainable by the appellant could reasonably conclude
that the actions of the Government evidence one of the categories of wrongdoing
listed in section 2302(b)(8)(A). Scoggins v. Department of the Army,
123 M.S.P.R. 592, ¶ 11 (2016).
¶25 The appellant alleged in disclosures 1 and 3 that the agency endangered the
security and integrity of its IT systems by maintaining its computer server in an
unsecured location that was accessible to non-citizens employed by the agency
abroad and by handling the server backup tapes in a manner that made them
susceptible to theft, resulting in several tapes being lost while in transit to
Washington, D.C. IAF, Tab 5 at 5-6, 8-9, 18-30, 40-65, 123-46. The appellant
broadly identified these concerns as “serious IT security issues” in her OSC
complaint and provided emails with her jurisdictional response showing that she
expressed similar concerns to her supervisory chain. Id. at 18, 132. The agency
subsequently addressed her concerns by purchasing additional equipment to
properly store and secure the servers and by arranging for transportation of the
server backup tapes to storage for safekeeping. Id. at 20-30.
¶26 Although an individual must ordinarily identify the specific law, rule, or
regulation that was violated in order to make a protected disclosure, the Board
has nevertheless held that an individual need not identify a statutory or regulatory
14
provision by a particular title or number “when the employee’s statements and the
circumstances surrounding the making of those statements clearly implicate an
identifiable violation of law, rule, or regulation.” Ayers v. Department of the
Army, 123 M.S.P.R. 11, ¶ 24 (2015) (quoting, as corrected here, Langer v.
Department of the Treasury, 265 F.3d 1259, 1266 (Fed. Cir. 2001)). The Board
has held that disclosures of similar allegations of wrongdoing so obviously
implicated a violation of law, rule, or regulation that the appellant was not
required to identify any specific law, rule, or regulation that was violated. See
Daniels v. Department of Veterans Affairs, 105 M.S.P.R. 248, ¶¶ 10, 12 (2007)
(concluding that an appellant’s disclosures outlining a number of IT security
problems in her office, including password sharing, unauthorized use of data and
information systems, access to the computer room by unauthorized persons, and
falsification of security reports “so obviously implicate[d] a violation of law,
rule, or regulation” that the appellant did not have to identify any specific law,
rule, or regulation that was violated to meet her jurisdictional burden in an IRA
appeal), disagreed with on other grounds by Delgado v. Merit Systems Protection
Board, 880 F.3d 913, 923 (7th Cir.), as amended on denial of reh’g and reh’g en
banc (7th Cir. 2018); DiGiorgio v. Department of the Navy, 84 M.S.P.R. 6, ¶ 14
(1999) (acknowledging that some allegations of wrongdoing, such as theft of
Government property, so obviously implicated a violation of law, rule, or
regulation, that an appellant need not identify any particular law, rule, or
regulation). Accordingly, we conclude that the appellant could have reasonably
believed that her disclosures concerning the improper storage and transportation
of the agency’s IT systems described in disclosures 1 and 3 evidenced potential
violations of laws, rules, or regulations, and so she nonfrivolously alleged that
she made protected disclosures under 5 U.S.C. § 2302(b)(8) in connection with
these claims.
15
The appellant nonfrivolously alleged that her December 2019 OSC
complaint and her May 2020 OIG complaint constituted protected
activity under 5 U.S.C. § 2302(b)(9)(C)
¶27 In concluding that the appellant failed to meet her jurisdictional burden
regarding her claim that the agency retaliated against her because of her OIG and
OSC complaints, the administrative judge considered the content of those
disclosures. ID at 10-13. We reach a different conclusion. It is a prohibited
personnel practice under 5 U.S.C. § 2302(b)(9)(C) to take a personnel action
against an employee because that employee engaged in the protected activity of
“cooperating with or disclosing information to the [OIG] . . . of an agency, or
[OSC], in accordance with applicable provisions of law.” As noted above, the
Board has concluded that disclosures under section 2302(b)(9)(C) are protected
regardless of their content. Pridgen, 2022 MSPB 31, ¶ 62. Therefore, the
appellant nonfrivolously alleged that she engaged in protected activity under
5 U.S.C. § 2302(b)(9)(C) by filing complaints with OSC in December 2019 and
the OIG in May 2020.
The appellant failed to nonfrivolously allege that she engaged in
protected activity in connection with her December 2019
EEO complaint
¶28 The administrative judge determined that, as with the appellant’s
December 2019 OSC complaint, she exhausted her administrative remedies
regarding her complaint to the agency’s EEO office in December 2019, but the
complaint was not protected because it concerned allegations of discrimination
and did not seek to remedy a violation of 5 U.S.C. § 2302(b)(8). ID at 10-11.
We agree.
¶29 In Edwards v. Department of Labor, the Board reaffirmed the longstanding
principle that disclosures protected under Title VII are not protected under
5 U.S.C. § 2302(b)(8) because employees seeking to remedy reprisal for such
disclosures have the right to seek redress through the EEO process. See Edwards,
2022 MSPB 9, ¶¶ 10-23, aff’d, No. 22-1967 (Fed. Cir. July 7, 2023); see also
16
Young v. Merit Systems Protection Board, 961 F.3d 1323, 1329 (Fed. Cir. 2020)
(explaining that the Board lacks jurisdiction in an IRA appeal over a claim of
reprisal for filing an EEO complaint). Further, the Board found that an EEO
complaint that does not seek to remedy a violation of 5 U.S.C. § 2302(b)(9)(8) is
not protected activity under 5 U.S.C. § 2302(b)(9)(A)(i) and thus is not within the
Board’s jurisdiction over activities falling within the scope of that provision.
Edwards, 2022 MSPB 9, ¶¶ 24-25. In describing the nature of the claims in her
December 2019 EEO complaint, the appellant alleged that she raised claims of
“retaliation . . . that was blatantly interwoven with sexism and racism.” IAF,
Tab 5 at 8, 130, 135. We agree with the administrative judge that because the
appellant did not allege that she sought to remedy whistleblower reprisal in her
EEO complaint, it was not within the scope of the Board’s IRA jurisdiction.
The appellant nonfrivolously alleged that disclosure 1 was a contributing factor in
the denied detail opportunity, and she is entitled to a hearing on the merits of
that claim.
Disclosure 1
¶30 We now turn to the question of whether the appellant nonfrivolously alleged
that a disclosure or activity was a contributing factor in the agency’s decision not
to select her for a detail. See Skarada, 2022 MSPB 17, ¶ 19. To satisfy the
contributing factor criterion, an appellant need only raise a nonfrivolous
allegation that the fact of, or content of, the disclosure or activity was one factor
that tended to affect the personnel action in any way. Id. Whether the appellant’s
allegations can be proven on the merits is not part of the jurisdictional inquiry.
Lane v. Department of Homeland Security, 115 M.S.P.R. 342, ¶ 12 (2010).
Generally, the Board will consider an allegation nonfrivolous when, under oath or
penalty of perjury, an individual makes an allegation that is more than
conclusory, plausible on its face, and material to the legal issues in the appeal.
5 C.F.R. § 1201.4(s).
17
¶31 One way to establish the contributing factor criterion is the
knowledge/timing test, under which an appellant may nonfrivolously allege that
the disclosure or activity was a contributing factor in the personnel action through
circumstantial evidence, such as evidence that the official taking the personnel
action knew of the disclosure or activity, and that the personnel action occurred
within a period of time such that a reasonable person could conclude that the
disclosure or activity was a contributing factor in the personnel action. 5 U.S.C.
§ 1221(e)(1); see Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 13
(2016). Regarding the knowledge prong of the test, an appellant may establish,
for jurisdictional purposes, that a disclosure or activity was a contributing factor
in a personnel action by nonfrivolously alleging that the official taking the
personnel action had actual or constructive knowledge of the disclosure or
activity. See Wells v. Department of Homeland Security, 102 M.S.P.R. 36, ¶ 8
(2006). An appellant may establish an official’s constructive knowledge of a
protected activity by demonstrating that an individual with actual knowledge of
the disclosure or activity influenced the official accused of taking the retaliatory
action. Id. Also, at the jurisdictional stage, the appellant may be able to establish
the knowledge prong even if she did not specifically identify the agency official
responsible for a personnel action. See Cahill v. Merit Systems Protection Board,
821 F.3d 1370, 1373-76 (Fed. Cir. 2016) (finding that, given the contextual clues
in the record, the petitioner made a nonfrivolous allegation of contributing factor
even though he did not specifically identify the agency officials who heard his
disclosures); see also Bradley v. Department of Homeland Security, 123 M.S.P.R.
547, ¶¶ 15-16 (2016) (finding that when the action at issue is a nonselection, an
appellant can satisfy her jurisdictional burden regarding contributing factor
without specifically identifying which management officials were responsible for
the decision).
¶32 Concerning the knowledge prong of the test as applied to disclosure 1, the
appellant alleged in her jurisdictional response that she personally informed her
18
former second-line supervisor about the unsecured server and server backup tapes
during the supervisor’s in-person visit to the U.S. Consulate in Calgary in
December 2019, and that this supervisor was involved in the decision to deny her
the detail opportunity. IAF, Tab 5 at 8, 14-15. Accordingly, she has met the
knowledge prong of the test.
¶33 Regarding the timing prong of the test, personnel actions that occurred more
than 2 years after the alleged disclosure or activity are too remote in time to
satisfy the timing prong of the test. Pridgen, 2022 MSPB 31, ¶ 63. Accordingly,
the appellant has not satisfied the knowledge/timing test as to disclosure 1, which
occurred in August 2019, because it was too remote in time to the decision to
deny her the detail opportunity over 3 years later, in September 2022.
¶34 However, the knowledge/timing test is not the only way to prove
contributing factor. Dorney v. Department of the Army, 117 M.S.P.R. 480, ¶ 14
(2012). If an appellant fails to satisfy the knowledge/timing test, the Board must
consider other evidence, 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.
Chambers, 2022 MSPB 8, ¶ 15; Dorney, 117 M.S.P.R. 480, ¶ 15.
¶35 Here, the appellant argued that in addition to her former second-line
supervisor to whom she made disclosure 1, her current first- and second-line
supervisors were also involved in the decision to deny her the detail opportunity.
IAF, Tab 5 at 14-15. She also argued that the evidence supporting her
supervisors’ stated reasons for denying her the detail opportunity were weak,
observing that her first-line supervisor offered several different explanations as to
why she was not eligible for the detail even though the external contact for the
detail position strongly encouraged her to apply for the position. Id. at 15,
158-70. The appellant also noted that her first-line supervisor involved her
former second-line supervisor (who was aware of disclosure 1) in the discussion
19
about the detail opportunity and suggests that her former second-line supervisor
may have influenced her first-level supervisor in deciding to deny the appellant
the detail opportunity. Id. at 15. These assertions challenging the justifications
given for denying her the detail opportunity and questioning her second-line
supervisor’s motives for involving herself in that decision are relevant to the
non-knowledge/timing methods for establishing contributing factor. See
Chambers, 2022 MSPB 8, ¶ 15; Dorney, 117 M.S.P.R. 480, ¶ 15.
¶36 Although the agency disputes the appellant’s characterization of the
importance of the inclusion of her second-line supervisor on these emails and
suggests that the appellant’s claims amount to “unsubstantiated speculation,”
IAF, Tab 6 at 10, we disagree. At the jurisdictional stage, an appellant does not
need to prove her allegations. Hessami v. Merit Systems Protection Board,
979 F.3d 1362, 1367-69 (Fed. Cir. 2020). Rather, she need only allege sufficient
facts which, taken as true, “state a claim plausible on its face.” Id. at 1369.
Taking the appellant’s allegations as true, and with the recognition that her
burden at the jurisdictional stage is a low one, we conclude that she has
nonfrivolously alleged that her disclosure of the unsecured server and server
backup tapes in disclosure 1 was a contributing factor in the decision to deny her
the detail opportunity. See Usharauli v. Department of Health and Human
Services, 116 M.S.P.R. 383, ¶ 19 (2011) (stating that any doubt or ambiguity as to
whether the appellant made a nonfrivolous jurisdictional allegation should be
resolved in favor of finding jurisdiction); Jessup v. Department of Homeland
Security, 107 M.S.P.R. 1, ¶ 10 (2007) (observing that the appellant’s burden of
making a nonfrivolous allegation is low and requires only a minimally sufficient
allegation). Accordingly, remand of this appeal for a hearing on the merits of this
claim is appropriate. Although the appellant’s allegations are sufficient to meet
her jurisdictional burden, we emphasize that, on remand, she must prove by
preponderant evidence that this disclosure was a contributing factor in the single
covered personnel action. See generally Salerno, 123 M.S.P.R. 230, ¶ 5.
20
Disclosure 3
¶37 Regarding the knowledge prong of the knowledge/timing test as it relates to
disclosure 3, which concerned the appellant’s disclosure of the potential theft of
the server backup tapes on or around January 23, 2020, the appellant has not
alleged that she informed any of the officials responsible for denying her the
detail opportunity of this disclosure, and so she cannot meet the knowledge prong
of the knowledge/timing test. 5 Additionally, the more than 2½-year period
between when the appellant disclosed the potential mishandling of the tapes in
January 2020 and when she was denied the opportunity to apply for the detail
position in September 2022 does not meet the timing prong of the test. See
Pridgen, 2022 MSPB 31, ¶ 63.
¶38 We look now for other evidence, 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.
Although we have acknowledged the appellant’s argument that the agency’s
stated reasons for denying her the detail opportunity are weak, she has not
otherwise alleged that any of the officials involved in the decision to deny her the
detail opportunity had any awareness of the fact that the tapes were mishandled at
the time they made their decision—much less that they were involved in the
mishandling of the tapes or had any other desire or motive to retaliate against her
in connection with this disclosure. Dorney, 117 M.S.P.R. 480, ¶ 15.
Accordingly, we conclude that she has failed to nonfrivolously allege that this
disclosure was a contributing factor in the detail denial decision, and so she has
failed to meet her jurisdictional burden for this claim.
May 2020 OIG complaint (disclosure 2 and disclosure/protected activity 4)
5
Additionally, the tapes were not lost or potentially stolen until January 23, 2020, after
the date of the appellant’s in-person meeting with her former second-line supervisor in
December 2019, and so the misplaced tapes could not have been the subject of that
in-person conversation. IAF, Tab 5 at 14-15, 40-43.
21
¶39 Regarding the timing prong of the test as to the appellant’s OIG complaint,
the more than 2-year gap between when the appellant contacted the OIG in
May 2020 and when she was denied the detail opportunity in September 2022 is
too remote to establish contributing factor. See Pridgen, 2022 MSPB 31, ¶ 63.
With respect to the knowledge prong of the test, the appellant broadly alleged in
her OSC complaint that agency officials “intensified retaliation” against her after
she engaged in protected activity by, among other things, filing her OIG
complaint, but she did not specifically allege that any of the agency officials
responsible for denying the detail opportunity were aware of her OIG complaint.
IAF, Tab 5 at 8, 134-36. She also does not allege or provide evidence in her
jurisdictional response that any of the officials involved in denying the detail
opportunity were aware of her OIG complaint. Id. at 4-15. Accordingly, the
appellant has failed to meet her burden of nonfrivolously alleging that her
complaint to OIG was a contributing factor in the decision to deny her the detail
opportunity based on the knowledge/timing test.
¶40 The appellant also has not pointed to any other evidence that would support
a finding of contributing factor. Dorney, 117 M.S.P.R. 480, ¶ 15. None of the
officials she identified in her OIG complaint were involved in the decision to
deny her the detail opportunity, and she does not allege in her jurisdictional
response that any of those officials influenced any of the supervisors responsible
for the decision to deny her the detail opportunity, or that any official involved in
the detail decision had any motive to retaliate against her because of her
disclosure to the OIG. IAF, Tab 5 at 14-15, 66-78; cf. Cassidy v. Department of
Justice, 118 M.S.P.R. 74, ¶¶ 6, 9-11, 14 (2012) (concluding that the appellant
nonfrivolously alleged contributing factor by showing that the official to whom
he allegedly made a protected disclosure influenced the officials who made the
nonselection determination at issue). Accordingly, we conclude that the appellant
has also failed to establish contributing factor based on evidence other than
22
knowledge/timing evidence, and so she failed to meet her jurisdictional burden
over this claim. See Dorney, 117 M.S.P.R. 480, ¶ 15.
December 2019 OSC complaint
¶41 As with the other alleged disclosures and activities, the nearly 3-year gap
between when the appellant filed her December 2019 OSC complaint and when
the agency officials denied her the detail opportunity in September 2022 is too
remote to satisfy the timing prong of the knowledge/timing test. See Pridgen,
2022 MSPB 31, ¶ 63. With respect to the knowledge prong of the test, as with
her OIG complaint, the appellant broadly alleged to OSC that agency officials
“intensified retaliation” against her after she filed her prior December 2019 OSC
complaint but did not specifically allege that any of the agency officials
responsible for denying the detail opportunity were aware of her prior OSC
complaint. IAF, Tab 5 at 8, 134-36. Additionally, in her jurisdictional response,
the only official that the appellant appears to allege was implicated in her prior
OSC complaint is not one of the officials she alleged denied her the detail
opportunity. Id. at 8. Accordingly, she has failed to meet the knowledge prong
of the test.
¶42 Regarding other types of evidence, the appellant has not provided a copy of
her December 2019 complaint to OSC, and the only information she has provided
about the nature of her prior OSC complaint is her assertion that it concerned
alleged harassment by the Counsel General of the Calgary Consulate, who she has
not alleged was involved in the decision to deny her the detail opportunity. Id.
at 8, 14-15. We note, however, that with her jurisdictional response, the
appellant has provided an email she sent to OSC dated September 16, 2022,
stating that her former second-line supervisor (one of the individuals she alleged
was responsible for the decision to deny her the detail opportunity) was “named
in [the appellant’s] . . . OSC matters” and was retaliating against her by asking
her to provide medical documentation for appointments. Id. at 153. The
appellant does not identify whether the former second-line supervisor was named
23
in her then-ongoing OSC complaint, or her prior December 2019 OSC complaint,
and so it is difficult to discern whether she was alleging to OSC that her former
second-line supervisor retaliated against her because of her December 2019 OSC
complaint. 6 Accordingly, the vagueness of the appellant’s allegations regarding
this alleged protected activity and her failure to provide additional context to her
claims makes this analysis of the Dorney factors difficult.
¶43 As previously noted, the appellant has the burden of establishing
jurisdiction over her IRA appeal, which includes the burden of meeting the
contributing factor requirement. Although this is a lower burden than that
required to prove the merits of her claim, we nevertheless find that she has failed
to meet her burden here. Accordingly, we conclude that the appellant has failed
to nonfrivolously allege that her December 2019 OSC complaint was a
contributing factor in the decision to deny her the detail opportunity.
¶44 In sum, we have made the following findings: the appellant exhausted her
administrative remedies regarding her disclosures about the unsecured computer
server and server backup tapes in August 2019 (disclosure 1), and the potentially
lost or stolen server backup tapes in January 2020 (disclosure 3), as well as her
protected activities of filing complaints through the EEO process in
December 2019, and with OSC in 2019 and the OIG in May 2020; and she has
also exhausted her administrative remedies regarding her claim that she was
denied a detail opportunity in September 2022. Further, she has nonfrivolously
alleged that she was subjected to a covered personnel action in connection with
her nonselection for the detail opportunity and that her disclosures about the
unsecured server and backup tapes were protected under 5 U.S.C. § 2302(b)(8),
and her complaints to OSC and the OIG were protected under 5 U.S.C. § 2302(b)
(9)(C). Additionally, the appellant nonfrivolously alleged that her disclosure of
the unsecured server and server backup tapes was a contributing factor in the
6
As we previously noted, however, the appellant did not identify her former
second-line supervisor by name in her July 2022 OSC complaint. IAF, Tab 5 at 123-46.
24
detail nonselection decision, thereby meeting her jurisdictional burden in this IRA
appeal. However, the appellant has failed to nonfrivolously allege that her
remaining disclosures and protected activities were contributing factors in the
decision to deny her the detail opportunity.
¶45 Because the appellant has met her jurisdictional burden with respect to
disclosure 1, remand is necessary to provide the appellant with her requested
hearing on the merits. On remand, the appellant must prove, by a preponderance
of the evidence, that disclosure 1 was a contributing factor in the agency’s
decision to deny her the detail opportunity. If the appellant makes such a
showing, the agency will have the opportunity to prove by clear and convincing
evidence that it would have denied her the detail opportunity even in the absence
of the appellant’s protected disclosure. 5 U.S.C. § 1221(e); Salerno,
123 M.S.P.R. 230, ¶ 5.
25
ORDER
¶46 For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order. 7
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
7
In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.