The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY SALAZAR, DOCKET NUMBER
Appellant, SF-1221-16-0649-W-7
v.
DEPARTMENT OF VETERANS DATE: February 7, 2025
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Anthony Salazar , Pico Rivera, California, pro se.
Steven Snortland , Esquire, Los Angeles, California, for the agency.
Timothy D. Cheng , Esquire, Washington, D.C., for amicus curiae, the
Office of Special Counsel.
BEFORE
Cathy A. Harris, Chairman*
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member**
*The Board members voted on this decision before January 20, 2025.
**Member Kerner recused himself and
did not participate in the adjudication of this appeal.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in this individual right of action (IRA)
appeal. 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.
BACKGROUND
Effective February 4, 2015, the agency removed the appellant from his
Motor Vehicle Operations Supervisor position based on a charge of unacceptable
performance. Salazar v. Department of Veterans Affairs, MSPB Docket No.
SF-1221-15-0660-W-1, Initial Appeal File (0660 IAF), Tab 1 at 9-23. On or
about February 13, 2015, the appellant filed a complaint with the Office of
Special Counsel (OSC) alleging that the removal and other personnel actions
predating the removal, including his placement on a performance improvement
plan (PIP), were based on reprisal for making protected disclosures. Id. at 5, 24;
0660 IAF, Tab 3 at 4-12. On April 27, 2015, OSC informed the agency that it
had reasonable grounds to believe that the agency removed the appellant because
he made protected disclosures and requested that the agency stay the removal
pending its investigation of his complaint. 0660 IAF, Tab 5 at 11. The agency
complied with OSC’s request by cancelling the appellant’s removal and placing
him on the rolls. Salazar v. Department of Veterans Affairs, MSPB Docket
No. SF-1221-16-0649-W-1, Initial Appeal File (IAF), Tab 9 at 79; Salazar v.
Department of Veterans Affairs, MSPB Docket No. SF-1221-16-0649-W-7 (W-7
AF), Tab 15 at 48. OSC ended its inquiry into the appellant’s complaint on
June 23, 2015, and informed him of his right to seek corrective action from the
Board. 0660 IAF, Tab 1 at 24, Tab 5 at 10.
The appellant filed a June 29, 2015 Board appeal challenging his removal,
which the agency appears to have reimposed on July 26, 2015, and other
3
personnel actions predating the removal (the 0660 appeal). 0660 IAF, Tab 1
at 1, 4, 6, Tab 5 at 10, Tab 17 at 5-6. The appellant alleged that a denial of
training, a change to his performance standards, his receipt of a notice of
unacceptable conduct and placement on a PIP, and his removal were based on two
disclosures he made in October 2013 involving claims of misuse or
mismanagement of Government fleet credit cards and vehicles. 0660 IAF, Tab 17
at 3-4, 5-6.
After a hearing, the administrative judge issued a May 4, 2016 initial
decision denying the appellant’s request for corrective action. 0660 IAF, Tab 28,
Initial Decision at 2. He found that the appellant’s burden included proving that
his October 2013 disclosures were protected under the heightened standards of
5 U.S.C. § 2302(f)(2), rather than the generally applicable standard set forth at
5 U.S.C. § 2302(b)(8), but he did not meet that burden. Id. at 16-52.
The appellant filed a June 6, 2016 petition for review of that initial
decision. Salazar v. Department of Veterans Affairs, MSPB Docket No. SF-1221-
15-0660-W-1, Petition for Review File, Tab 1. The Board issued an Opinion and
Order granting the petition for review, vacating portions of the initial decision
and affirming others, while remanding the appeal for further adjudication.
Salazar v. Department of Veterans Affairs, 2022 MSPB 42. Contrary to the
administrative judge’s finding, the Board held that section 2302(f)(2) did not
apply to the circumstances at hand because the appellant’s principal job function
was not to regularly investigate and disclose wrongdoing. Id., ¶¶ 9-22. Instead,
the Board found that the appellant’s disclosures fell under the generally
applicable section 2302(b)(8). The Board further found that the appellant proved
that he made October 2013 disclosures about disarray and lax security involving
dozens of vehicles and credit cards and that these disclosures were protected by
section 2302(b)(8). Id., ¶¶ 24-26. The Board also found that the appellant proved
that the agency took a number of personnel actions against him, id., ¶¶ 27-31, and
proved that his protected disclosures were a contributing factor to the same, id.,
4
¶¶ 32-33. Consequently, the Board remanded the appeal for the administrative
judge to determine whether the agency could meet its burden of proving that it
would have taken the same personnel actions in the absence of the protected
disclosures. Id., ¶¶ 34-36.
In the meantime, the appellant filed a second OSC complaint, on
February 3, 2016. Then, on July 23, 2016, the appellant filed this second IRA
appeal alleging that the agency caused him to be liable for a debt relating to his
Federal Employee Health Benefits (FEHB) and withheld pay for annual leave to
which he was entitled after his removal. The appellant alleged that these actions
were reprisal for (1) his October 2013 disclosures, (2) his first OSC complaint,
filed in February 2015, and (3) his first Board appeal, i.e., the 0660 appeal, filed
in June 2015. IAF, Tab 1 at 3, 5.
The administrative judge ordered the appellant to prove that the Board had
jurisdiction over this, his second IRA appeal. IAF, Tab 3. After the appellant
filed a response to the order, the agency moved to dismiss the appeal for lack of
jurisdiction. IAF, Tabs 8-9. Because the appellant’s petition for review in the
0660 case was pending before the Board, the administrative judge dismissed this
appeal without prejudice subject to automatic refiling. IAF, Tab 11. The
administrative judge noted that some of the same alleged whistleblowing that the
appellant raised in this appeal was also at issue in his prior appeal pending before
the full Board. Id. at 5. Several times thereafter, the administrative judge
automatically refiled and dismissed this appeal without prejudice to refiling.
Salazar v. Department of Veterans Affairs, MSPB Docket Nos. SF-1221-16-0649-
W-2, SF-1221-16-0649-W-3, SF-1221-16-0649-W-4, SF-1221-16-0649-W-5,
SF-1221-16-0649-W-6, SF-1221-16-0649-W-7. In the most recent refiling, the
appellant informed the administrative judge that he wished to proceed with
adjudication of the case. W-7 AF, Tab 4 at 4.
The administrative judge found that the appellant exhausted his OSC
remedy and that the Board has jurisdiction over the appeal. W-7 AF, Tab 8,
5
Tab 24, Initial Decision (ID) at 8-9 & n.6; IAF, Tab 8 at 57-73. However, after a
hearing, the administrative judge denied the appellant’s request for corrective
action in this case. ID at 1, 16.
The administrative judge found that the appellant proved by preponderant
evidence that he made protected disclosures, namely, the same two October 2013
disclosures raised in the 0660 appeal, and that he engaged in protected activity by
filing a whistleblower reprisal complaint with OSC followed by the 0660 appeal. 2
ID at 10-12. The administrative judge also determined that the appellant proved
he was subjected to a personnel action when the agency reenrolled him in the
FEHB program following receipt of the April 27, 2015 letter from OSC
requesting that the agency stay its removal action for 90 days, and “then imposed
a collection for those benefits, [and] . . . negatively impacted his pay and benefits
by imposing a deduction for a benefit he did not know he had and did not use.”
ID at 14; IAF, Tab 9 at 79; 0660 AF, Tab 5 at 11. But she concluded that the
agency’s refusal to allow the appellant to use his annual leave or receive a payout
of that leave as part of his final lump sum payment, between August 2015 and
January 2016, was not a personnel action. ID at 6-7, 9 & n.6, 13-14.
Finally, the administrative judge found that the appellant did not prove by
preponderant evidence that his disclosures and protected activity were
contributing factors in his FEHB debt because he did not show that the officials
who were aware of those activities had any role in the actions taken by the
Defense Finance and Accounting Service (DFAS) to reenroll the appellant in the
FEHB program and create a debt for that benefit. ID at 14-15. The
administrative judge also found that there was no evidence that anyone in DFAS
knew of the appellant’s protected activities. ID at 16.
The appellant has filed a petition for review, the agency has filed a
response to the petition for review, the appellant has filed a reply to the response,
2
Consistent with the Board’s decision in the 0660 appeal, the administrative judge
found that the disclosures were protected under section 2302(b)(8). ID at 10-12.
6
and OSC has filed an amicus curiae brief. 3 Petition for Review (PFR) File,
Tabs 1, 3-5.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant proved that he made protected disclosures and engaged in protected
activity.
As set forth above, the appellant made disclosures in October 2013 about
disarray and lax security involving dozens of vehicles and credit cards. The
administrative judge correctly found that these were the same disclosures
underlying the 0660 appeal and correctly found that they were protected. ID
at 10-12; see 5 U.S.C. § 2302(b)(8); Salazar, 2022 MSPB 42, ¶¶ 24-26.
The appellant also filed a February 2015 OSC complaint and the June 2015
Board appeal, i.e., the 0660 appeal. The administrative judge correctly found
these to be protected activities. ID at 12; see 5 U.S.C. § 2302(b)(9)(A)(i);
Elder v. Department of the Air Force, 124 M.S.P.R. 12, ¶ 40 (2016). Because
these findings of protected disclosures and activities are not disputed on review,
we can turn our attention to the alleged personnel actions.
The appellant proved that the agency took personnel actions against him.
In the instant IRA appeal, the appellant alleges that the agency took two
retaliatory personnel actions. Put most simply, he argues that the agency caused
him to be liable for a debt for FEHB premiums and withheld pay for annual leave
to which the appellant was entitled after his removal. We find that the appellant
proved that both are covered personnel actions by the agency.
FEHB debt
The appellant challenged the agency’s action of withholding funds from his
final payout to account for a debt incurred due to healthcare insurance coverage
that terminated after his removal but had been reinstated by the agency without
3
The parties have not disputed the administrative judge’s well-reasoned jurisdictional
findings on review, and we discern no basis to revisit them here.
7
his knowledge as part of its compliance with OSC’s stay request. IAF, Tab 1
at 5; W-7 AF, Tab 14 at 5-7, 9, Tab 17 at 3. The administrative judge found that
this constituted an appealable personnel action because it negatively impacted the
appellant’s pay and benefits. ID at 14. The agency does not dispute this finding,
and we agree with this determination by the administrative judge.
Annual leave
The administrative judge determined, however, that the appellant did not
suffer a personnel action when the agency refused his request to take annual leave
or receive a payout for that leave. ID at 12-13. She reasoned that as of February
2016, when the appellant was separated from the agency’s rolls and received his
final leave and earnings statement, the value of his accrued leave was withheld to
pay for various overpayments he had received. ID at 7, 12-13; IAF, Tab 8 at 55;
W-7 AF, Tab 15 at 48, 52, Tab 22, Hearing Recording (testimony of an agency
Payroll Supervisor), Tab 20 at 4, 10. The appellant challenges on review the
administrative judge’s determination that the agency’s denial of his request for
annual leave was not a personnel action because he was not entitled to such leave
given the debts he had accrued. PFR File, Tab 1 at 12-13. We agree with the
appellant and find that the agency’s denial of his request to use annual leave or
receive a payment for that annual leave is a personnel action.
For purposes of this appeal, a personnel action means “a decision
concerning pay . . . [or] benefits.” 5 U.S.C. § 2302(a)(2)(A)(ix). The Board has
found that an agency’s denial of a request for annual leave constitutes the taking
of a personnel action under 5 U.S.C. § 2302(a)(2)(A)(ix). Brown v. Department
of the Navy, 102 M.S.P.R. 377, ¶ 15 (2006); see Mc Corcle v. Department of
Agriculture, 98 M.S.P.R. 363, ¶ 16 (2005) (finding the denial of sick leave was a
personnel action), overruled on other grounds by Collier v. Small Business
Administration, 2024 MSPB 13, ¶¶ 1, 7. In determining that the agency’s denial
of the appellant’s requests regarding his annual leave was not a personnel action,
the administrative judge cited to Marren v. Department of Justice, 50 M.S.P.R.
8
369, 372-73 (1991), and Arauz v. Department of Justice, 89 M.S.P.R. 529,
¶¶ 17-19 (2001), in which the Board found that the denial of official time and
administrative leave generally were not personnel actions. However, the Board
distinguished the denial of these categories of leave from the denial of annual and
sick leave on the basis that these latter benefits accrue automatically. Arauz,
89 M.S.P.R. 529, ¶ 20 & n.6; Marren, 50 M.S.P.R. at 373; see 5 U.S.C.
§ 6303(a), (f) (setting forth the rates of accrual of annual leave). Here, the
appellant’s leave and earnings statement as of the cancellation of his removal in
May 2015, and his final leave and earnings statement in February 2016, show an
annual leave balance of 131.5 hours. IAF, Tab 8 at 55; W-7 AF, Tab 15 at 52.
Therefore, we find that the agency’s denial of the use of this annual leave was a
personnel action.
This principle applies whether the annual leave was denied in the form of a
paid absence from duty time while employed or denied as an end-of-service
payout representing the value of that annual leave. See 5 U.S.C. § 5551(a)
(providing that “[a]n employee . . . who is separated from service . . . is entitled
to receive a lump-sum payment for accumulated and current accrued annual or
vacation leave to which he is entitled by statute”); see 5 C.F.R. §§ 550.1201,
550.1203(a) (stating in the Office of Personnel Management’s regulations
implementing 5 U.S.C. § 5551(a), that “[a]n agency must make a lump-sum
payment for accumulated and accrued annual leave when an employee . . .
[s]eparates.”). In the latter case, the denial of such a payout may also be
considered a personnel action as a denial of pay. See Roach v. Department of the
Army, 82 M.S.P.R. 464, ¶¶ 4, 13-14 (1999) (finding that an agency’s garnishment
of an appellant’s salary for recovery of an erroneous award was a personnel
action because it concerned both pay and an award).
The agency contends that it properly denied the appellant the use or payout
of his leave because it was offsetting a corresponding debt. PFR File, Tab 3 at 6.
This argument improperly conflates the appellant’s burden to prove his prima
9
facie case with the agency’s burden to prove its affirmative defense, which is
discussed below. The Board may not proceed to this defense unless it has first
determined that an appellant established his prima facie case. 5 U.S.C. § 1221(e)
(2); see 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). 4 The reasons for
the agency’s actions are relevant to the issue of whether it proved by clear and
convincing evidence that it would have taken the same action absent the
appellant’s protected activity, and not whether the appellant suffered a personnel
action. See Scoggins v. Department of the Army, 123 M.S.P.R. 592, ¶¶ 27-28
(2016) (concluding that it was improper in an IRA appeal for an administrative
judge to consider whether the agency proved its affirmative defense despite
determining that an alleged action was not a personnel action).
In sum, the appellant’s proven and protected whistleblowing for purposes
of this appeal includes (1) his October 2013 disclosures, (2) his first OSC
complaint, filed in February 2015, and (3) his first Board appeal, filed in June
2015. The appellant’s proven personnel actions for the purposes of this appeal
include the agency (1) causing him to be liable for FEHB debt, and
(2) withholding pay for annual leave to which the appellant was entitled after his
removal.
The appellant has shown that his protected disclosures and activities were a
contributing factor in the contested personnel actions.
An appellant may be entitled to corrective action in an IRA appeal if he
shows that a protected disclosure or activity was a contributing factor in a
personnel action. 5 U.S.C. § 1221(e)(1)-(2). An employee may meet this burden
through circumstantial evidence, such as evidence that the official taking the
4
Although the U.S. Court of Appeals for the Seventh Circuit has disagreed with the
Board’s decision in Clarke, it has done so on different grounds. Delgado v. Merit
Systems Protection Board, 880 F.3d 913, 923-25 (7th Cir. 2018), as amended on denial
of rehearing and rehearing en banc (June 19, 2018). Thus, its disagreement does not
implicate the basis for which we cite Clarke here.
10
personnel action knew of the protected disclosure or activity and the personnel
action occurred within a period of time such that a reasonable person could
conclude that the protected disclosure or activity was a contributing factor in the
personnel action. 5 U.S.C. § 1221(e)(1). The Board has found that personnel
actions alleged to have begun within 1 to 2 years of the appellant’s protected
whistleblowing disclosure or activity satisfies the timing prong of this
knowledge/timing test. Cooper v. Department of Veterans Affairs, 2023 MSPB
24, ¶ 20. Relevant to the circumstances of this appeal, the Board has also
recognized that an appellant can satisfy the timing prong by showing that a
personnel action was part of a continuum of related personnel actions, the first of
which occurred within 2 years of the appellant’s protected disclosure or activity.
Id., ¶ 21; Agoranos v. Department of Justice, 119 M.S.P.R. 498, ¶¶ 22-23 (2013).
FEHB debt
The administrative judge found that, although relevant officials were
clearly aware of the appellant’s protected actions before the agency implemented
the OSC stay request, which in turn led to the appellant owing a debt for health
insurance benefits that he had not requested, the appellant did not prove that his
protected disclosures and activities were a contributing factor in the FEHB
reenrollment and resulting debt. ID at 15. The administrative judge reached this
conclusion on finding that the appellant did not prove that these officials “had
any role in DFAS’[s] actions to re-enroll [him] in FEHB and to create debts for
that benefit,” and that there was no evidence that anyone in DFAS knew of the
appellant’s protected disclosures and activities. ID at 15-16. We disagree with
this analysis.
As set forth above, the agency removed the appellant effective February 4,
2015. 0660 IAF, Tab 1 at 9-23. The proposing and deciding officials to that
removal action had actual knowledge of the appellant’s October 2013 disclosures
because the proposing official was the recipient of the disclosures and the
appellant raised them in his response to the proposed removal, which the deciding
11
official considered. E.g., Salazar, 2022 MSPB 42, ¶¶ 32-33. In pursuing the
removal action, the proposing and deciding officials relied on the help of the
agency’s Chief of its Employee/Labor Relations Section (Chief). E.g., IAF,
Tab 1 at 5, 19-20, 23; ID at 2-3. While we have not found evidence directly
answering whether the Chief reviewed the appellant’s response to gain actual
knowledge of the appellant’s October 2013 disclosures at that time, she surely
had constructive knowledge of them. See Abernathy v. Department of the Army,
2022 MSPB 37, ¶ 15 (recognizing that an appellant may establish an official’s
constructive knowledge of a protected disclosure by demonstrating that an
individual with actual knowledge of the disclosure influenced the official accused
of taking the retaliatory action). She also gained actual knowledge of the
appellant’s first OSC complaint and first Board appeal in the months that
followed the appellant’s removal. 5 E.g., W-7 AF, Tab 9 at 24-26, 78-79.
On March 9, 2015, at the appellant’s request, the Chief “issued [to the
appellant] a memorandum confirming that his Federal Employee Health
Benefits . . . had been terminated effective March 4, 2015” because she believed
he had not signed up for continuation of such coverage before it lapsed. ID
at 2-3, 15; IAF, Tab 9 at 78-79. Thereafter, in an April 27, 2015 letter to the
agency, OSC summarized the appellant’s whistleblowing activity and noted that,
“[i]n order to maintain the status quo ante while OSC investigates and determines
whether further action is warranted, we request that the [agency] stay [the
appellant’s] removal, which became effective on February 4, 2015, pending
OSC’s investigation of the reprisal complaint.” IAF, Tab 8 at 76. OSC indicated
that the Board has the authority to stay a removal after its effective date. Id. at 76
n.1. Thus, OSC’s letter placed the responsibility of staying the appellant’s
5
As previously stated, the Chief had at least constructive knowledge of the appellant’s
October 2013 disclosures by virtue of her assisting the proposing and deciding officials
with the removal action. But the record suggests that her subsequent handling of OSC’s
stay gave her actual knowledge of the disclosures, as well, since OSC’s stay request
explicitly described them. E.g., IAF, Tab 8 at 76, Tab 9 at 79.
12
removal and maintaining the status quo ante on the agency, not on some other
entity such as DFAS.
The Chief indicated that, at OSC’s request, on or about May 15, 2015, the
appellant’s removal “was to be cancelled pending the outcome of his appeal.”
IAF, Tab 9 at 79. She stated that, following OSC’s instructions, the appellant’s
“record was restored,” and he was placed on leave without pay (LWOP) from
February 15 until April 26, 2015, and then paid for a 90-day period from April 27
through July 25, 2015. Id. She further averred that she prepared the paperwork
to cancel the appellant’s removal, and the paper timecards required to pay him for
the periods in question, as well as a “Remedy Request” to submit with the
appellant’s timecards. Id. The Chief explained as follows:
Because of my belief his FEHB coverage lapsed, I was not aware a
Standard Form 2810 would be required to “cancel” benefits that
would have otherwise lapsed because I believed there should have
been nothing to cancel. However, [the appellant’s] FEHB deductions
were automatically restored by DFAS apparently through the OSC
restoration actions and not as a result of [the appellant] enrolling in
health coverage.
Id. She asserted that, when the appellant’s record was restored, DFAS, which
handles the agency’s pay, “automatically restored his FEHB and deductions for
this were apparently taken from his pay.” Id. at 80. She noted that the appellant
had acquired non-FEHB health insurance coverage during the time he was no
longer employed by the agency. Id. The Chief reiterated that she was “initially
unaware that a Standard Form 2810 (SF-2810) was required to prevent the health
benefit deductions” and that she was attempting to have those FEHB deductions
restored, but there was no documentation of a cancellation of the health benefits,
which was required to allow the system to provide a refund to the appellant. Id.
She indicated that, on August 2, 2016, she first learned that the agency needed to
complete the SF-2810 to seek reimbursement for the overpaid health insurance
premium amounts, and she immediately did so. Id. at 80, 83-84. The Chief noted
that “[a]ny complications with rectifying [the appellant’s] pay are related to my
13
confusion over the steps to affect [sic] accurate disbursement of his final
pay . . . .” Id. at 80-81.
The “Remedy Request” mentioned above by the Chief explained that OSC
had requested a stay of the appellant’s removal, noted that the removal “was
cancelled,” set forth the dates the appellant was to be placed on LWOP and then
paid per OSC’s request, indicated that a “payment of debt for lump sum leave
should be made from back pay,” and specified that leave should be fully restored
to his account with leave credited to him that would have been accrued. IAF,
Tab 9 at 88. However, the “Remedy Request” did not discuss how to handle the
appellant’s FEHB coverage, nor did the Chief provide DFAS with an SF-2810 at
that time. Id. Thus, contrary to the administrative judge’s finding that the Chief
had no role in the actions that led to the creation of the appellant’s FEHB debt
and his resulting loss of pay, the Chief’s action instructing DFAS to reinstate him
in accordance with OSC’s stay request, along with her failure to address the issue
of health benefits or provide DFAS with an SF-2810, resulted in the restoration of
the appellant’s FEHB coverage, which in turn created the FEHB debt at issue in
this case.
Under these circumstances, we find that the Chief had knowledge of the
appellant’s whistleblowing when she effectively withheld funds from his final
payout to account for the FEHB debt incurred due to healthcare insurance
coverage that was reinstated by the agency as part of its compliance with OSC’s
stay request. The Chief took or failed to take this action during the period
spanning May 2015 and February 2016, a period after the February 2015 OSC
complaint and June 2015 Board appeal such that a reasonable person could
conclude that the protected activities were a contributing factor in the personnel
action. IAF, Tab 9 at 79, W-7 AF, Tab 20 at 4-6; see Cooper, 2023 MSPB 24,
¶ 20. While the appellant’s October 2013 disclosures are outside the window for
which the Board will ordinarily find the knowledge/timing test satisfied as it
relates to at least a portion of this personnel action, we find the test satisfied
14
because the FEHB reenrollment and debt is part of a continuum of related
personnel actions, the first of which occurred within 2 years of the protected
whistleblowing. Cooper, 2023 MSPB 24, ¶ 21; Agoranos, 119 M.S.P.R. 498,
¶¶ 22-23.
We recognize that DFAS “handles [the agency’s] pay.” IAF, Tab 9
at 80, 108; see 55 Fed. Reg. 50,179 (Dec. 5, 1990). But it is responsible for
calculating and paying an appellant based on information provided to it by the
agency. Walker v. Department of the Army, 90 M.S.P.R. 136, ¶ 15 (2001). In the
context of determining whether an agency complied with a Board back pay order,
the Board has observed that an agency must show that it provided DFAS with the
information it needed to process the award. Id., ¶¶ 13, 15. By analogy, here, the
agency will now have the burden of proving by clear and convincing evidence
that absent the appellant’s protected disclosures and activities it still would have
failed to complete the SF-2810, and taken any other steps required by DFAS that
it failed to take, resulting in DFAS’s reenrollment of the appellant in FEHB.
Annual leave
The record reflects that the Chief was also responsible for authorizing
payment for the appellant’s accrued annual leave by way of correcting the
applicable timecards and that “payroll” was unable to address the matter until that
occurred. IAF, Tab 9 at 24-28. That authorization from the Chief did not occur.
The Chief averred that any delayed return of funds, such as a lump sum payment
for accrued leave that might have been due the appellant, was the result of an
“oversight” on her part in timely processing the matter. Id. at 80. Thus, the
Chief failed to take a personnel action, i.e., a decision concerning pay or benefits.
There is no indication that any action denying the appellant leave or
a payment representing such leave was taken by DFAS; instead, DFAS suggested
that the appellant request a pay audit through his agency and informed him that he
should be able to request pay for annual leave because it appeared that, as of
January 21, 2016, he was still a current employee. Id. at 26. A series of emails
15
addressing the leave issue included information from the appellant notifying all
recipients, including the Chief, that he had a reprisal case pending before the
Board. Id. at 25-28, 48-49, 85. In January 2016, an agency payroll employee
advised the appellant that the reason he was not paid out for his leave was that the
Chief or others had not “authorized it by way of doing the corrected timecards”
and that the appellant first needed “to settle” his Board “case” for an annual leave
payout. Id. at 33, 37-38.
Given the Chief’s failure to grant the appellant leave or authorize a
payment for such leave beginning in January 2016, IAF, Tab 9 at 21-41, along
with the appellant’s February 2015 OSC complaint and June 2015 Board appeal,
we find that she failed to take such action within a period of time such that a
reasonable person could conclude that the activity was a contributing factor in the
personnel action. See 5 U.S.C. § 1221(e)(1); Cooper, 2023 MSPB 24, ¶ 20. Once
again, we also find that the appellant’s October 2013 disclosures were a
contributing factor because this leave-related personnel action is part of a
continuum of personnel actions, the first of which occurred within 2 years of the
protected whistleblowing. Cooper, 2023 MSPB 24, ¶ 21; Agoranos,
119 M.S.P.R. 498, ¶¶ 22-23.
OSC asserts in its amicus brief that the knowledge/timing test is not the
only way to prove that a disclosure or protected activity is a contributing factor in
a personnel action, active or constructive knowledge by the acting official is not
required, and all record evidence linking an employee’s protected activity to the
personnel action at issue should be considered. PFR File, Tab 5 at 3, 5. OSC
contends that after the appellant filed a complaint with OSC and OSC requested a
stay of the appellant’s removal, to which the agency agreed, the erroneous FEHB
withholding ensued, for which the appellant now seeks a refund. Id. at 5. OSC
claims that “[t]hese facts plainly demonstrate a causal link between [the
appellant’s] OSC complaint and the FEHB [w]ithholding,” and “[n]othing more is
required to shift the burden to the [agency].” Id. at 6. Having found, however,
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that the appellant met the contributing factor element based on the
knowledge/timing test, we need not address the arguments raised by OSC in this
case.
Accordingly, we find that the appellant has proven by preponderant
evidence that his protected disclosures and activity was a contributing factor in
the two personnel actions discussed above.
This appeal is remanded for further adjudication.
When protected disclosures or activity are found to have been a
contributing factor in a personnel action appealed to the Board, the Board will not
sustain the action unless the agency presents clear and convincing evidence that it
would have taken the action in the absence of the protected disclosures or
activity. 5 U.S.C. § 1221(e)(2); Arauz, 89 M.S.P.R. 529, ¶ 12. Resolution of this
issue is likely to require an assessment of the credibility of witnesses, which is a
matter best left to the administrative judge. Arauz, 89 M.S.P.R. 529, ¶ 12.
Accordingly, the appeal must be remanded so that the administrative judge may
issue a remand initial decision determining whether the agency has met the
burden to prove its affirmative defense.
On remand, the administrative judge may incorporate into her remand
initial decision her prior jurisdictional findings. She may also incorporate her
prior determination that the appellant engaged in protected whistleblowing by
virtue of his (1) October 2013 disclosures, (2) February 2015 OSC complaint, and
(3) June 2015 Board appeal. She may further incorporate her finding that the
reenrollment under the FEHB program and associated debt was a personnel
action. But her remand initial decision should recognize our findings above that
the appellant also proved that the denial of the use or payout of his annual leave
was a personnel action and that he proved the contributing factor criterion as to
both personnel actions. The administrative judge should then determine whether
the agency showed by clear and convincing evidence that it would have taken the
same actions absent the appellant’s protected disclosures and activity. Making
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this finding requires additional factual findings and may also require credibility
determinations. Gonzalez v. Department of Transportation, 109 M.S.P.R. 250,
¶ 22 (2008).
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.