Opinion

Vickie L Hartless v. Department of Homeland Security

Court: Merit Systems Protection Board
Filed: Feb 26, 2025
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 34.2%

stating that the appellant’s 14 criticisms cast the agency, and by implication all of the responsible officials, in a highly critical light

How later courts described this case

stating that the appellant’s 14 criticisms cast the agency, and by implication all of the responsible officials, in a highly critical light

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

VICKIE L HARTLESS, DOCKET NUMBER

Appellant, DC-1221-22-0613-W-1

DEPARTMENT OF HOMELAND DATE: February 26, 2025

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Gary M Gilbert , Esquire, Renn Fowler , Esquire, and David Karman ,

Esquire, Silver Spring, Maryland, for the appellant.

Kelleen O'Fallon , Esquire, Philadelphia, Pennsylvania, for the agency.

Thomas Ziehnert , Esquire, and Bridget E. Feeney , Esquire, Springfield,

Virginia, for the agency.

BEFORE

Cathy A. Harris, Chairman

Henry J. Kerner, Vice Chairman*

Raymond A. Limon, Member

*Vice Chairman Kerner recused himself and

did not participate in the adjudication of this appeal.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

FINAL ORDER

The appellant has filed a petition for review and the agency has filed a

cross petition for review of the initial decision, which granted in part the

appellant’s request for corrective action in this individual right of action (IRA)

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

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

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

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

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

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

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

or legal argument is available that, despite the petitioner’s due diligence, was not

available when the record closed. Title 5 of the Code of Federal Regulations,

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this

appeal, we conclude that neither party has established any basis under section

1201.115 for granting the petition or cross petition for review. Therefore, we

DENY the petition for review and the cross petition for review. Except as

expressly MODIFIED to supplement the administrative judge’s explanation of the

appropriate corrective action required of the agency, we AFFIRM the initial

decision.

DISCUSSION OF ARGUMENTS ON REVIEW

We affirm the administrative judge’s contributing factor analysis.

To prevail on the merits of an IRA appeal, an appellant must meet her

initial burden of proving by preponderant evidence 2 that (1) she made a protected

disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity

Preponderant evidence is the degree of relevant evidence that a reasonable person,

considering the record as a whole, would accept as sufficient to find that a contested

fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the

disclosure or protected activity was a contributing factor in the agency’s decision

to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a). 3

Karnes v. Department of Justice, 2023 MSPB 12, ¶ 8.

The appellant “may demonstrate that the disclosure or protected activity

was a contributing factor in the personnel action through circumstantial evidence,

such as evidence that—(A) the official taking the personnel action knew of the

disclosure or protected activity; and (B) the personnel action occurred within a

period of time such that a reasonable person could conclude that the disclosure or

protected activity was a contributing factor in the personnel action.” 5 U.S.C.

§ 1221(e)(1)(A), (B); Karnes, 2023 MSPB 12, ¶ 8. Alternatively, an employee

can demonstrate that a disclosure was a contributing factor in a personnel action

through other circumstantial 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.

Dorney v. Department of the Army, 117 M.S.P.R. 480, ¶ 15 (2012).

In the initial decision, the administrative judge made credibility

determinations and concluded that the appellant did not prove by preponderant

evidence that her whistleblowing disclosures and/or protected activity were a

The administrative judge made the following findings in the initial decision: (1) the

appellant’s March 2018 disclosure to Congressional committee staff constituted a

reasonable belief of a violation of law, rule, or regulation and an abuse of authority;

(2) her April 2018 communications to the head of the Investigations Office and the OPR

Director expressing her opposition to the decision not to investigate complaints of

favoritism and discrimination against the acting OPR director constituted a reasonable

belief of a violation of management directives; (3) her April 26, 2018 OIG complaint

about the information described in the second whistleblowing disclosure constituted

activity protected by 5 U.S.C. § 2302(b)(9)(C); and (4) the agency’s decision to

eliminate her OPR Mission Support Director position during the realignment and the

directed reassignment to a nonsupervisory position constituted personnel actions

pursuant to 5 U.S.C. § 2302(a)(2). Initial Appeal File, Tab 72 at 25, 29-40. Neither

party challenges these findings on review, and we affirm them herein.

contributing factor in the elimination of her Mission Support Director position

during the realignment because none of the decisionmakers had actual or

constructive knowledge of her whistleblowing disclosures and protected activity

and no one with such knowledge influenced any of the decisionmakers. Initial

Appeal File (IAF), Tab 72, Initial Decision (ID) at 41-48. The administrative

judge also considered the alternative method of proving contributing factor. ID

at 48. He noted, among other things, that the realignment process began before

the appellant made any whistleblowing disclosures or engaged in protected

activity, the timing of the realignment and the inclusion of the Mission Support

Director position in the realignment were not suspicious, and the position was

identified early in the realignment process by a working group that did not

include anyone with an apparent motive to retaliate or have any basis to know

about the appellant’s whistleblowing disclosures or protected activity. Id.

Regarding the directed reassignment, the administrative judge found that

none of the decisionmakers had knowledge of her whistleblowing disclosures or

OIG complaint at that time. ID at 44, 49-51. He found, however, that the

appellant proved that her April 2018 whistleblowing disclosure was a

contributing factor in the directed reassignment 4 because the OPR Director, a

recipient of that disclosure, made negative comments about the appellant to the

Deputy Executive Assistant Administrator (DEAA) in February 2019, which

influenced the DEAA not to return the appellant to OPR thereafter. ID at 50-51

(citing Karnes, 2023 MSPB 12, ¶¶ 19, 22). Importantly, the administrative judge

noted that the influence in question occurred less than a year after the

whistleblowing disclosure and the decision-making about where to place the

The administrative judge took a broad view of the directed reassignment personnel

action. In pertinent part, the administrative judge explained that the “issue in this

personnel action is the decision of where to put the appellant . . . after the realignment,”

which encompassed the agency’s decision to move her to Training and Development in

or around September 2019 and not to place her in the OPR Senior Advisor detail during

the summer of 2019. ID at 49, 52. Neither party challenges the administrative judge’s

broad view of the directed reassignment personnel action.

appellant occurred in the months thereafter. ID at 51. Both parties challenged

the administrative judge’s contributing factor analysis, but we are not persuaded

by their assertions on review.

For example, the appellant contends that agency witnesses lied about not

having knowledge of her disclosures because, among other things, she “told

counsel and others [that] she was contacting” Congressional committee staff, and

there was “high-profile, well-publicized turmoil between the agency and

Congress.” Petition for Review (PFR) File, Tab 4 at 7-10. She also asserts that it

was “absurd,” “nonsensical,” and “unexplainable” that the agency decided not to

return her, a “top rated, experienced employee,” to OPR, even though the job

duties remained, there was a need for an experienced official to perform those

duties, and the agency detailed other employees to fulfill those duties. Id.

at 9-10.

Notably, the appellant does not identify by name or title any individual

whom she told of her disclosure to Congressional committee staff who was a

decisionmaker in either of the personnel actions or who influenced the

decisionmakers. Moreover, her generic assertion that “all agency witnesses

feign[ed] no knowledge” of her disclosures, PFR File, Tab 4 at 10, is speculative,

and an allegation based on speculation does not rise to the level of preponderant

evidence, Duncan v. Department of the Air Force, 115 M.S.P.R. 275, ¶ 9 (2010),

aff’d, 674 F.3d 1359 (Fed. Cir. 2012). Finally, her contention that the agency’s

staffing decisions were “absurd,” “nonsensical,” and “unexplainable” does not,

standing alone, satisfy the alternate method for proving contributing factor.

In its cross petition for review, the agency asserts that the administrative

judge erred when he found that the appellant proved that her April 2018

whistleblowing disclosure was a contributing factor in the directed reassignment

because the DEAA’s failure to consider her for a detail to the Senior Advisor

position during the summer of 2019 was not affected by “isolated comments”

from the OPR Director 5 months earlier. PFR File, Tab 8 at 4, 20-24. The

agency also asserts that the administrative judge’s reliance on Karnes—in which

the Board found a direct relationship between a retaliatory recommendation and a

subsequent reassignment—was misplaced because there was no relationship

between the OPR Director’s “negative comments” about the appellant in February

2019 and the DEAA’s decision in July 2019 to assign the appellant to the

Transportation Security Administration (TSA) Human Resources (HR) Academy.

Id. at 22-23.

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 another agency official who is unaware of the improper

animus when implementing a personnel action. Karnes, 2023 MSPB 12, ¶ 19

(discussing Staub v. Proctor Hospital, 562 U.S. 411 (2011)). Under the cat’s paw

theory, an appellant can establish that a prohibited animus toward a whistleblower

was a contributing factor in a personnel action by showing by preponderant

evidence that an individual with knowledge of the whistleblowing disclosure

influenced the officials who are accused of taking the personnel actions. Id.

We have considered the OPR Director’s negative comments about the

appellant, 5 the context in which he made those comments, the administrative

judge’s discussion of this evidence, and the agency’s assertion that there was no

relationship between the OPR Director’s negative comments about the appellant

and subsequent staffing decisions. IAF, Tab 38 at 52-53; ID at 14, 50-51; PFR

File, Tab 8 at 22-23. Although the DEAA testified that he understood that the

OPR Director’s comments were “about keep[ing] a resource,” and the

The OPR Director’s negative comments about the appellant were contained in a

February 6, 2019 email chain, in which he was advocating to keep employee A.B. in

OPR. IAF, Tab 38 at 52. In pertinent part, the OPR Director stated, “[i]n addition to

her competence, [A.B.] has been very beneficial for [O]PR culture, particularly in the

wake of [the appellant].” Id. (emphasis added). The OPR Director also stated that A.B.

was a “high performing asset who would be valuable to the overall organization. When

she does go to the [business management office], I’d only ask that she’d be placed well

outside of [the appellant’s] orbit. I feel strongly that we owe this to [A.B.] ” Id.

administrative judge generally found the DEAA credible, 6 the administrative

judge also found that the OPR Director’s negative comments about the appellant

“would have made it clear to [the DEAA] that he did not want the appellant to

return to OPR.” ID at 50-51; Hearing Transcript (HT) 3 at 184 (testimony of the

DEAA). The Board will not disturb an administrative judge’s findings when he

considered the evidence as a whole, drew appropriate inferences, and made

reasoned conclusions on issues of credibility. Crosby v. U.S. Postal Service,

74 M.S.P.R. 98, 106 (1997); Broughton v. Department of Health and Human

Services, 33 M.S.P.R. 357, 359 (1987). Accordingly, we agree with the

administrative judge that, under the cat’s paw theory, the knowledge element is

satisfied. Moreover, only 18 months passed between the appellant’s April 2018

disclosure to the OPR Director and the directed reassignment in October 2019.

Thus, the timing element is also satisfied. See, e.g., Mastrullo v. Department of

Labor, 123 M.S.P.R. 110, ¶ 21 (2015) (stating that the contributing factor element

can be shown if the personnel action occurred within 1 to 2 years after the

whistleblowing disclosure); Redschlag v. Department of the Army, 89 M.S.P.R.

589, ¶ 87 (2001) (finding that the appellant’s whistleblowing disclosures were a

contributing factor in the removal when they were made approximately 21 months

and then slightly over a year before the agency removed her). Therefore, we

affirm the administrative judge’s finding that the appellant has proven

contributing factor regarding her April 2018 whistleblowing disclosure and the

directed reassignment through the knowledge/timing test.

The agency asks the Board to defer to the administrative judge’s credibility

determinations and find that there were strong reasons for the agency to assign the

appellant to the HR Academy independent of her whistleblowing disclosures. PFR File,

Tab 8 at 23-24. The agency is conflating contributing factor analysis and the agency’s

clear and convincing burden. We discuss the strength of the agency’s evidence and the

administrative judge’s credibility determinations in our analysis of the agency’s clear

and convincing burden, below.

We agree with the administrative judge that the agency failed to prove by clear

and convincing evidence that it would have directed the appellant’s reassignment

absent her April 2018 whistleblowing disclosure.

Even if, as here, the appellant established that she made a whistleblowing

disclosure that was a contributing factor in the agency’s personnel action, the

Board will not order corrective action if the agency can show by clear and

convincing evidence 7 that it would have taken the action absent the disclosure.

5 U.S.C. § 1221(e)(2); Karnes, 2023 MSPB 12, ¶ 23. In determining whether an

agency has met this burden, the Board will consider all of the relevant factors,

including the following: (1) the strength of the agency’s evidence in support of

the action; (2) the existence and strength of any motive to retaliate on the part of

the agency officials who were involved in the decision; and (3) any evidence that

the agency takes similar actions against employees who are not whistleblowers

but who are otherwise similarly situated. Carr v. Social Security Administration,

185 F.3d 1318, 1323 (Fed. Cir. 1999); Karnes, 2023 MSPB 12, ¶ 24. The Board

does not view these factors as discrete elements, each of which the agency must

prove by clear and convincing evidence. Rather, the Board will weigh the factors

together to determine whether the evidence is clear and convincing as a whole.

Karnes, 2023 MSPB 12, ¶ 24. The Board considers all of the evidence presented,

including evidence that detracts from the conclusion that the agency met its

burden. Id.

Regarding the first factor, the administrative judge considered, in pertinent

part, the strength of the agency’s reasons independent of the OPR Director’s

influence and the strength of the OPR Director’s reasons independent of the

appellant’s whistleblowing. ID at 53. The administrative judge acknowledged

that the directed reassignment was the result of a number of decisions. Id. The

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

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

a higher standard than the “preponderance of the evidence” standard. Karnes,

2023 MSPB 12, ¶ 23; 5 C.F.R. § 1209.4(e).

administrative judge found that the agency had strong reasons for the

realignment, the decision to include the appellant’s OPR Mission Support

Director position in the realignment, and the decision to reassign the appellant in

general terms. ID at 53-54. The administrative judge credited the testimony of

the DEAA, and he found that the agency had strong reasons not to place the

appellant in the HR Branch Chief position, and instead detail her to Training and

Development (T&D) with the plan to have her develop a TSA HR Academy. ID

at 53-54; see Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir.

2002) (stating that the Board must defer to an administrative judge’s credibility

determinations when they are based, explicitly or implicitly, on observing the

demeanor of witnesses testifying at a hearing; the Board may overturn such

determinations only when it has “sufficiently sound” reasons for doing so). The

administrative judge also found that the agency had strong reasons for not placing

the appellant in the Senior Advisor detail position advertised in February 2019

because, among other things, she was already on a detail to the Department of

Homeland Security (DHS) through July 2019, and she did not indicate that she

wanted to end her current detail. ID at 55-56.

However, the administrative judge found that the agency did not have

strong reasons for its failure to consider the appellant for the Senior Advisor

detail during the summer of 2019. ID at 56-57. In pertinent part, the

administrative judge found that the OPR Mission Support Director position and

the Senior Advisor detail position at this time were “evolutionarily related,”

meaning that the Senior Advisor detail position was “an evolution of the Mission

Support Director position” and involved “many of the same duties.” 8 Id. The

administrative judge noted that, because the appellant needed a position and OPR

Importantly, the administrative judge found that the duties “overlapped in significant

parts” because they both processed intakes, managed the database, worked on case

management, liaised with other offices, handled requests from Congress, sat on working

groups, had two direct reports occupying the same positions, were involved in business

management office functions, and advised the Director. ID at 56-57.

needed a Senior Advisor, it would have made sense to consider the appellant for

the detail or at least gauge her interest, but neither occurred. ID at 57-58. Here,

too, the administrative judge credited the DEAA’s testimony, and he found that

the DEAA was genuinely trying to find a good fit for the appellant. ID at 58;

Haebe, 288 F.3d at 1301. However, because the Senior Advisor detail was

advertised in February 2019 at the J/K bands, the DEAA’s explanation for not

considering the appellant during the summer of 2019—looking for a K-band or

more senior level employee—was not a strong reason. ID at 58 (citing IAF,

Tab 9 at 115). The administrative judge noted that there was no advertisement in

the record for the Senior Advisor detail in July 2019, and, in any event, the

appellant did not have to apply for any of the positions she moved between in

2019, and she could be placed in positions without applying. ID at 58-59. The

administrative judge considered the appellant’s qualifications and the

qualifications of the person who filled the Senior Advisor detail in July 2019,

M.C., but he noted that the agency never considered the appellant or weighed the

advantages or disadvantages of the different courses of action. ID at 59-60.

The administrative judge acknowledged that the OPR Director’s “strong

negative” opinions about the appellant would have resulted in the DEAA not

considering her for the Senior Advisor detail in the summer of 2019. ID at 60.

Accordingly, the administrative judge evaluated the basis for the OPR Director’s

negative comments about the appellant. 9 Importantly, the administrative judge

found such a basis “weak,” 10 except for the OPR Director’s view that the

For example, the OPR Director testified that his comments about the appellant were

based on, among other things, some employees expressing to him that they did not like

working with her, and his perception she did not get along with “a unit chief or two,”

that she exhibited hostility due to the decision not to investigate the complaints against

the Acting OPR Director, and that she was part of the “factionalization” in OPR. HT 6

at 124, 165-67, 176-78 (testimony of the OPR Director).

The administrative judge noted that the OPR Director was not a direct witness to any

alleged negative interactions with the appellant, he did not document any issues, the

appellant denied the accusations, and there was no evidence from any of the individuals

appellant was “factionalized” and part of the dysfunction in OPR, but the basis

for this view was premised on her April 2018 whistleblowing disclosure and

opposition to the decision not to investigate pending complaints. ID at 60-63.

The administrative judge determined that the reasons for the OPR Director’s

negative comments about the appellant were connected to her April 2018

whistleblowing disclosure, and these comments “fill[ed] in an important gap in

the agency’s process” because it explained why the appellant was not considered

for the Senior Advisor detail during the summer of 2019. ID at 62-63. He

therefore concluded that this factor favored the appellant. ID at 63.

Regarding the second factor, the administrative judge found that the OPR

Director had some motive to retaliate because the disclosure reflected poorly on

him and his supervisor, the Executive Administrative Assistant (EAA). ID at 65.

The administrative judge also found that the OPR Director “demonstrated [a]

strong dislike for the appellant and her impact on OPR,” which was related in part

to her whistleblowing disclosure. Id. The administrative judge further found that

there was other evidence of the OPR Director’s motive in February 2019. For

example, the OPR Director did not respond to the appellant’s inquiry about the

posted Senior Advisor detail and status of her OPR Mission Support Director

position, which suggested that the appellant was interested in returning to OPR

and the OPR Director did not want her to return. Id. Additionally, the OPR

Director kept complaints from the appellant after her whistleblowing disclosure,

which suggested that he was bothered by her opposition to the decision not to

investigate pending complaints. ID at 65-66. Ultimately, the administrative

judge concluded that this factor did not weigh strongly in either direction but

favored the appellant. ID at 66.

who allegedly complained about the appellant. ID at 61-62. Moreover, there was no

evidence of any performance concerns, and the appellant was rated by multiple people

as “achieved excellence,” which included an evaluation of her management. Id.

Regarding the third factor, the administrative judge found that there was an

absence of comparator evidence, likely due to the unique circumstances of the

realignment and subsequent staffing decisions. ID at 66-67. Accordingly, he

concluded that the absence of such evidence meant that the factor was removed

from consideration and was a neutral factor. ID at 67 (citing Karnes, 2023 MSPB

12, ¶ 36).

The administrative judge weighed the three factors and noted that this issue

turned on the burden of proof. ID at 68. He stated that he was “not left with any

firm conclusions” on whether the agency would have issued the directed

reassignment absent the appellant’s April 2018 whistleblowing disclosure. ID

at 69. Therefore, he concluded that the agency did not meet its burden. Id.

In its cross petition for review, the agency asserts that the administrative

judge “invented evidence” and “[i]gnored the overwhelming evidence” regarding

the first factor. PFR File, Tab 8 at 24-27. For example, it asserts that the

administrative judge erred when he relied on the OPR Director’s negative

statements to “fill[] in an important gap in the agency’s process.” Id. at 24-25.

Instead, the agency asserts that it provided strong reasons for assigning the

appellant to the TSA HR Academy position, including, among other things, that

the DEAA thought that she was an ideal candidate because of her recent

experience, she wanted to stay at her previous detail assignment at DHS on a

permanent basis, and the selectee, M.C., had experience in business process

improvement and efficiency systems, and she submitted a resume. Id. at 25-26.

Moreover, the DEAA testified that he did not discuss with the OPR Director the

possibility of the appellant serving in the OPR detail assignment, and the

“overwhelming evidence established” that the agency would have assigned the

appellant to the TSA HR academy in the absence of the OPR Director’s

comments. Id. at 27. Regarding the second factor, the agency asserts that the

only motive that matters was the motive of the agency officials “involved in the

relevant decision,” the OPR Director was not involved in the decision to assign

the appellant to T&D, and the administrative judge erred in considering the OPR

Director’s motives. Id. at 27-28 (emphasis in original).

These arguments are not persuasive. Importantly, the first factor does not

apply straightforwardly to this case because the personnel action was not

disciplinary in nature and does not require supporting evidence of misconduct;

instead, it is appropriate to consider the broader question of whether the agency

had legitimate reasons for the directed reassignment and subsequent staffing

decisions. Smith v. Department of the Army, 2022 MSPB 4, ¶ 23. The initial

decision reflects the administrative judge’s methodical and thoughtful

consideration of the relevant evidence leading up to and including the directed

reassignment. ID at 52-63. We agree with the administrative judge’s conclusion

that the agency’s reasons for not placing the appellant in the Senior Advisor

detail position during the summer of 2019 were not strong and were largely due

to the OPR Director’s input, which was based on the appellant’s whistleblowing

disclosure and opposition to the decision not to investigate the pending

complaints. Id. Accordingly, we affirm the administrative judge’s analysis and

conclusion in this regard. See Crosby, 74 M.S.P.R. at 106; Broughton

33 M.S.P.R. at 359.

Regarding the second factor, the Board has been cautioned against taking

too narrow a view of this factor. Whitmore v. Department of Labor, 680 F.3d

1353, 1370 (Fed. Cir. 2012). Indeed, the U.S. Court of Appeals for the Federal

Circuit directed the Board to consider any motive to retaliate on the part of the

agency officials who ordered the action as well as that of any officials who

influenced the action. Id. at 1371; Soto v. Department of Veterans Affairs,

2022 MSPB 6, ¶ 14; Aquino v. Department of Homeland Security, 121 M.S.P.R.

35, ¶ 29 (2014). Therefore, the administrative judge properly considered the OPR

Director’s motive, and we agree with the administrative judge that this factor

favors the appellant because the OPR Director had some motive to retaliate. ID

at 65-66; see Whitmore, 680 F.3d at 1370-71 (stating that the appellant’s

criticisms cast the agency, and by implication all of the responsible officials, in a

highly critical light).

Because we agree with the administrative judge that the first two factors

weigh in the appellant’s favor and the third factor is neutral, we discern no error

with the administrative judge’s conclusion that the agency failed to meet its

burden to prove by clear and convincing evidence that it would have taken the

directed reassignment personnel action absent the appellant’s April 2018

whistleblowing disclosure. ID at 68-69. We affirm the initial decision in this

regard.

The appellant has not shown that she is entitled to corrective action beyond that

which the administrative judge ordered.

When the Board finds reprisal based on whistleblowing, it is statutorily

authorized to order broad relief, that is, such corrective action “as [it] considers

appropriate.” 5 U.S.C. § 1221(e)(1); Gharati v. Department of the Army,

2022 MSPB 16, ¶ 15. If the Board orders corrective action, such corrective

action “may include” that the individual be placed, as nearly as possible, in the

position the individual would have been in had the prohibited personnel practice

not occurred. 5 U.S.C. § 1221(g)(1)(A); Gharati, 2022 MSPB 16, ¶ 15.

As set forth above, the alleged retaliatory personnel actions identified for

adjudication in this IRA appeal were (1) the elimination of the appellant’s

position, in or around November 2018, and (2) her directed reassignment in

October 2019. E.g., IAF, Tab 1 at 15, Tab 8 at 13, Tab 11 at 3; ID at 25; PFR

File, Tab 4 at 6. The administrative judge found that she met her burden of

establishing a prima facie case of whistleblower reprisal only regarding the latter.

ID at 41-51. For that October 2019 directed reassignment, he also found that the

agency failed to rebut the appellant’s prima facie case of whistleblower reprisal.

ID at 52-69. This conclusion primarily rests on his determination that the agency

did not adequately explain why it selected M.C. over the appellant for the Senior

Advisor detail assignment in August 2019, just before the appellant’s October

2019 directed reassignment. Id. Put another way, the administrative judge

determined that, had it not been for whistleblower reprisal, the agency would

have selected the appellant for the August 2019 detail instead of directing her

reassignment in October 2019.

Accordingly, the administrative judge ordered the agency to correct the

appellant’s personnel records to retroactively place her in the detail assignment

for the period in which it was filled. 11 ID at 70. He further ordered the agency to

rescind the October 30, 2019, directed reassignment and to replace it with

appropriate documentation reflecting reassignment to the appellant’s current

position at the end of the detail assignment. ID at 71.

The administrative judge acknowledged that, after the detail, the agency

established and advertised a “permanent position in OPR,” which was filled by

M.C. ID at 22, 56-57, 70. However, he determined that the appellant was not

entitled to corrective action placing her in any further positions if she did not

apply for them. 12 ID at 70 (citing Gharati, 2022 MSPB 16, ¶¶ 19-20). The

administrative judge also recognized that, to obtain a promotion as part of an

order granting relief, the appellant must either identify a law mandating the

promotion or clearly establish that she would have been promoted in the relevant

period. ID at 70 n.21 (citing Dow v. General Services Administration,

117 M.S.P.R. 616, ¶ 18 (2012)); see Gharati, 2022 MSPB 16, ¶ 18 (setting forth

that same standard). However, the administrative judge found that the appellant

made no such showing. ID at 70 n.21.

Neither party explicitly challenges the administrative judge’s order for corrective

action in this regard, and we affirm the order herein.

We understand that the “permanent position in OPR” was the SV-0343 K-band

Supervisory Management and Program Analyst position, and it was also called the OPR

Senior Advisor permanent position and the OPR Chief of Staff position. ID at 22; IAF,

Tab 9 at 35-40; HT 1 at 14 (testimony of M.C.). The agency does not dispute that this

OPR permanent position was a K-band position. PFR File, Tab 8 at 15.

In her petition for review, the appellant asserts that the administrative

judge erred in holding that she was not entitled to corrective action as to the

permanent OPR position because, among other things, it was not announced in

USAJOBS, and the agency prohibited her from applying because it was only

available to K-band employees. PFR File, Tab 4 at 6, 12-19. The appellant also

provides the following documentation with her petition for review: (1) an August

2020 vacancy announcement showing that the permanent OPR position was

advertised as a voluntary lateral reassignment opportunity, which meant that only

K-band employees could apply; (2) a May 16, 2023 Decision on Liability in her

related Equal Employment Opportunity Commission matter in which a

Supervisory Administrative Judge stated that the selectee for the OPR permanent

position was “non-competitively selected”; (3) an agency determination in August

2020 that M.C., the selectee for the OPR permanent position, was “eligible and

qualified for the non-competitive reassignment”; and (4) a November 25, 2019

email showing that the OPR Director contemplated making M.C. a permanent

OPR Senior Advisor. 13 PFR File, Tab 4 at 21-38, Tab 6 at 37. We are not

persuaded by the appellant’s arguments, but modify the initial decision as follows

to address the appropriate corrective action.

Based on her arguments and evidence about relief, the appellant is

essentially asking the Board to correct the agency’s reprisal, i.e., her nonselection

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

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

before the record was closed before the administrative judge despite the party’s due

diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 213-14 (1980). The

appellant seems to argue on review that we should nevertheless consider the evidence

she submitted for the first time on review because she lacked notice that the

administrative judge would address the precise nature of relief during the initial

proceedings, as opposed to subsequent compliance proceedings. PFR File, Tab 4

at 17-19. We need not further address the timeliness of the newly submitted evidence

because we find it unavailing. Russo v. Veterans Administration, 3 M.S.P.R. 345, 349

(1980) (recognizing that the Board will not grant a petition for review based on new

evidence absent a showing that it is of sufficient weight to warrant an outcome different

from that of the initial decision).

for the August 2019 detail in favor of her October 2019 reassignment, by placing

her in a permanent K-band position that was not created until May 2020, posted

until August 2020, and filled until September 2020. ID at 22; IAF, Tab 9

at 35-40; PFR File, Tab 4 at 21. In addition, she is suggesting that the Board do

so despite acknowledging that she did not apply for the lateral K-band position

because she was ineligible to apply as a J-band employee. E.g., PFR File, Tab 4

at 5-6. Finally, the appellant is arguing in favor of this additional corrective

action, even though her placement in that position would amount to a promotion.

In Gharati, 2022 MSPB 16, the Board considered a situation that is in

many ways comparable. After finding that an employee’s reassignment and

removal from a 4-year term appointment as a Fingerprint Specialist were based on

whistleblower reprisal, the Board’s Final Order instructed the agency to cancel

the reassignment and removal, and to retroactively restore the appellant, effective

November 2012. Id., ¶ 3. During subsequent compliance proceedings, the

administrative judge determined that the appellant’s relief must include

placement in a permanent Latent Print Examiner position. Id., ¶ 16. The Board

disagreed for several reasons. Among other things, the Board found that it would

have been impossible for the Final Order to encompass appointment to a vacancy

that did not arise until nearly 2 years after the retaliation and was unrelated to and

independent from the employee’s position at the time relevant to the order. Id.,

¶ 17. The Board further explained that, by its very nature, a term appointment

expires by a certain date, and an agency is not obligated to offer an employee a

permanent or other term position after that expiration. Id., ¶ 18.

Turning back to this case, the detail assignment for which the agency

selected M.C. over the appellant was also, by its very nature, temporary. See

Dixon v. U.S. Postal Service, 64 M.S.P.R. 445, 450 (1994). In addition, the

agency created, posted, and filled the permanent K-band position the appellant

now seeks well after the matters properly before us in this IRA appeal, i.e., the

appellant’s nonselection for the detail assignment and directed reassignment.

Further, the administrative judge explained that the permanent position differed

from the appellant’s prior roles with the agency as well as the original detail

assignment that was filled by M.C., ID at 56-57, and the appellant has not given

us any reason to conclude differently.

Under these circumstances, we agree with the administrative judge’s

limited grant of corrective action. Because the administrative judge found that

the agency retaliated by directing her reassignment in October 2019 instead of

selecting her for a detail assignment in August 2019, corrective action in the form

of placement in that detail assignment was appropriate. At the end of that detail

assignment, which was temporary by its very nature, the appellant was entitled to

return to a permanent position. However, the appellant is not entitled to

placement in a permanent position that did not exist at the time of the agency’s

reprisal, nor is she entitled to placement in a permanent position for which she

did not apply. Gharati, 2022 MSPB 16, ¶¶ 17, 19. She has also not shown, either

below or on review, that she is entitled to promotion. Id., ¶ 18; Dow,

117 M.S.P.R. 616, ¶ 18. Thus, we concur with the administrative judge’s

conclusion that the most appropriate permanent position for the appellant at the

end of her detail assignment was the permanent position she already occupies.

To the extent that the appellant is suggesting that the agency might have

created and posted the permanent position that went to M.C. differently if the

appellant had been in the detail assignment, such that the appellant could have

been selected for that position, we will not order corrective action based on those

assumptions. See Gharati, 2022 MSPB 16, ¶ 20. Similarly, we will not order any

other corrective action based upon speculation about ways in which the

appellant’s career trajectory may have differed if she had been placed in that

detail assignment.

ORDER

We ORDER the agency to correct the appellant’s personnel records to

retroactively place her in a detail to a J-Band position as a Senior Advisor in the

Office of Professional Responsibility starting in August 2019 and overlapping

with the detail to the Senior Advisor position filled at that time. We further

ORDER the agency to rescind the October 30, 2019, directed reassignment and to

replace it with appropriate documentation reflecting the above detail and a

subsequent reassignment to the appellant’s current position. See Kerr v.

National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency

must complete this action no later than 20 days after the date of this decision.

We also ORDER the agency to pay the appellant the correct amount of

back pay, interest on back pay, and other benefits under the Office of Personnel

Management’s regulations, no later than 60 calendar days after the date of this

decision. We ORDER the appellant to cooperate in good faith in the agency’s

efforts to calculate the amount of back pay, interest, and benefits due, and to

provide all necessary information the agency requests to help it carry out the

Board’s Order. If there is a dispute about the amount of back pay, interest due,

and/or other benefits, we ORDER the agency to pay the appellant the undisputed

amount no later than 60 calendar days after the date of this decision. 14

We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and of the actions it has

taken to carry out the Board’s Order. The appellant, if not notified, should ask

the agency about its progress. See 5 C.F.R. § 1201.181(b).

No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision on this appeal if the appellant

Thus far, we have no reason to believe that the appellant is due any backpay or other

benefits, but we make no findings on the matter at this time.

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the dates and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Defense Finance and

Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resulting from a Board decision

are attached. The agency is ORDERED to timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that payment can be

made within the 60-day period set forth above.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set forth at title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST CONSEQUENTIAL AND/OR

COMPENSATORY DAMAGES

You may be entitled to be paid by the agency for your consequential

damages, including medical costs incurred, travel expenses, and any other

reasonable and foreseeable consequential damages. To be paid, you must meet

the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may

be found at 5 C.F.R. §§ 1201.201, 1201.202 and 1201.204.

In addition, the Whistleblower Protection Enhancement Act of 2012

authorized the award of compensatory damages including interest, reasonable

expert witness fees, and costs, 5 U.S.C. § 1214(g)(2), which you may be entitled

to receive.

If you believe you are entitled to these damages, you must file a motion for

consequential damages and/or compensatory damages WITHIN 60 CALENDAR

DAYS OF THE DATE OF THIS DECISION. You must file your motion with the

office that issued the initial decision on your appeal.

NOTICE TO THE PARTIES

A copy of the decision will be referred to the Special Counsel “to

investigate and take appropriate action under [5 U.S.C.] section 1215,” based on

the determination that “there is reason to believe that a current employee may

have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8) or

section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(f)(3). Please note

that while any Special Counsel investigation related to this decision is pending,

“no disciplinary action shall be taken against any employee for any alleged

prohibited activity under investigation or for any related activity without the

approval of the Special Counsel.” 5 U.S.C. § 1214(f).

NOTICE OF APPEAL RIGHTS 15

The initial decision, as supplemented by this Final Order, constitutes the

Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the following

address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 16 The court of appeals must receive your petition for

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the following