The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOY CHACON, DOCKET NUMBER
Appellant, NY-1221-18-0167-W-2
v.
DEPARTMENT OF HEALTH AND DATE: February 28, 2025
HUMAN SERVICES,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Joy Chacon , Connelly, New York, pro se.
Fernando Morales , Esquire, New York, New York, 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.
REMAND ORDER
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 appeal to the Northeastern
Regional Office for adjudication of the merits in accordance with this Remand
Order.
BACKGROUND
The appellant was a Quality Program Specialist for the agency’s Office of
Communications and Quality Program Management, a subdivision of the Office
of Regulatory Affairs (ORA), which is itself a subdivision of the Food and Drug
Administration. Chacon v. Department of Health and Human Services, MSPB
Docket No. NY-1221-18-0167-W-2 (W-2 appeal), Appeal File (W-2 AF), Tab 17
at 4-5. In August 2014, the appellant was working in ORA’s Northeast Regional
Laboratory (NRL). W-2 AF, Tab 8 at 29-31. Her duties during this time included
working to ensure that NRL was in compliance with the Quality Management
System and serving as a liaison for bi-yearly audits by the American Association
for Laboratory Accreditation (A2LA). Chacon v. Department of Health and
Human Services, MSPB Docket No. NY-1221-14-0372-W-1, Final Order, ¶ 2
(Jan. 4, 2017).
On August 22, 2014, the appellant “sent in confidence” to A2LA an email
regarding NRL management’s “obstructive activities,” including orders to “sign[]
without review,” “falsif[y],” or “close numerous noncomformance and complaint
reports” so that such reports would not be “‘visible’ to [A2LA] in NRL’s
upcoming assessment,” and describing punitive personnel actions taken against
staff who have “protested against or refused to comply with unlawful orders to
‘cover-up’ issues that may be perceived adversely.” W-2 AF, Tab 8 at 29-30.
The appellant’s email further stated that she was personally “ordered to ‘close’
and/or ‘withdraw’ noncomformances or complaints for which
corrective/preventive actions have not been completed.” Id. at 30. She included
specific examples. Id. In its reply, A2LA stated that it was “very concerned” by
3
the issues that she raised and assured her that it would keep her “identity as the
source of this complaint confidential.” Id. at 29.
Subsequently, A2LA representatives visited NRL to investigate a complaint
that was brought to its attention, presumably the appellant’s email. Id. at 33.
A2LA ultimately suspended NRL’s laboratory accreditation in September 2014
after its investigation revealed noncompliance with its requirements. Id. at 33-35.
Even though NRL regained its accreditation in May 2015, the appellant was
allegedly subjected to numerous acts of reprisal over the next several years
following the disclosure. Chacon v. Department of Health and Human Services,
MSPB Docket No. NY-1221-18-0167-W-1, Initial Appeal File (IAF), Tab 6
at 9-10, 13-50.
On March 8, 2018, the appellant filed a complaint with the Office of
Special Counsel (OSC), alleging that the agency retaliated against her because of,
among other things, her disclosure to A2LA (OSC Docket No. MA-18-2621). Id.
at 6-12. She supplemented her OSC complaint numerous times with additional
acts of retaliation that she allegedly suffered. Id. at 13-50. In a July 18, 2018
email, OSC advised the appellant that, because she previously indicated that she
“intended to exercise [her] right to file an [IRA] appeal with the MSPB,” there
was “no basis for [its] inquiry into the[] matters” that she raised, and it closed its
inquiry into her complaint. IAF, Tab 4 at 13-14.
This appeal followed. IAF, Tab 1. The appellant requested a hearing. Id.
at 2. During the pendency of this appeal, the appellant filed another OSC
complaint in which she indicated that she was refiling her prior OSC complaint
and submitting additional allegations (OSC Docket No. MA-18-5547). W-2 AF,
Tab 4 at 9-18. Among other things, the appellant noted in her correspondence
with OSC that she had received a notice of proposed removal. W-2 AF, Tab 9
at 7, Tab 18 at 4-12. The administrative judge dismissed the appeal without
prejudice to provide the appellant the opportunity to exhaust her claims before
OSC. IAF, Tab 17 at 2-4. The appeal was refiled on January 28, 2019. W-2 AF,
4
Tab 1. OSC issued a closeout letter for the appellant’s second complaint on
February 7, 2019. W-2 AF, Tab 9 at 7-8. The appellant was ultimately removed
from her position, effective March 8, 2019, and a separate appeal was docketed
regarding her removal. W-2 AF, Tab 18 at 13-17; Chacon v. Department of
Health and Human Services, MSPB Docket No. NY-0752-19-0108-I-1, Initial
Appeal File (0108 IAF), Tab 1.
On April 29, 2019, the administrative judge issued an initial decision
dismissing the refiled IRA appeal for lack of jurisdiction. W-2 AF, Tab 28,
Initial Decision (ID). The administrative judge found that the appellant
exhausted with OSC her August 22, 2014 A2LA disclosure and approximately
102 alleged reprisal actions, ID at 4, and that she nonfrivolously alleged that her
A2LA disclosure was protected, ID at 7. The administrative judge found that the
appellant failed to nonfrivolously allege that her disclosure was a contributing
factor in any reprisal actions. ID at 7-10. The administrative judge further found
that the appellant failed to nonfrivolously allege that 79 of the 102 reprisal
actions constituted appealable personnel actions. 2 ID at 11-12. She also found
that the appellant failed to nonfrivolously allege that she was subjected to a
2
The appellant does not challenge the administrative judge’s finding that she failed to
nonfrivolously allege that these 79 actions constituted personnel actions under 5 U.S.C.
§ 2302(a)(2)(A). ID at 11-12. The Board generally does not consider issues that are not
raised on review. Roche v. Department of Transportation, 110 M.S.P.R. 286, ¶ 13
(2008), aff’d, 596 F.3d 1375 (Fed. Cir. 2010). Although not explicitly raised by the
appellant on review, however, we modify the initial decision to find that the agency’s
decision to propose the appellant’s removal on February 4, 2019 (personnel action 101)
is a nonfrivolous allegation of a personnel action. Chambers v. Department of the
Interior, 116 M.S.P.R. 17, ¶ 5 (2011); W-2 AF, Tab 18 at 4-12. Thus, the only
purported personnel actions that remain are numbered 1-2, 4-5, 33, 39, 63, 72, 77, 82,
85-95, 98, and 100-01. In addition to the proposed removal, these personnel actions
concern the appellant’s exclusion from or lack of work assignments, denial of credit or
awards for her accomplishments, lowered performance evaluations for calendar years
2015 and 2016, derogatory treatment directed to her, a letter of reprimand, a letter of
action (leave restriction), charges of absence without leave, denial of sick leave, a
downgrade of her position description and duties, and the termination of her telework
agreement. IAF, Tab 14 at 5-68; W-2 AF, Tab 4 at 2-5, 18, Tab 8 at 5-22. We will
discuss the personnel actions below in our analysis of contributing factor.
5
hostile work environment. ID at 12-13. The administrative judge noted that,
although the appellant listed her removal as among the incidents of reprisal at
issue, that action was the subject of another appeal and would not be adjudicated
in the instant IRA appeal. 3 ID at 3; see 0108 IAF, Tab 31 (dismissing the
removal appeal for failure to prosecute).
The appellant has filed a petition for review, arguing that (1) she
nonfrivolously alleged that her 2014 A2LA disclosure was a contributing factor in
the personnel actions to which she was subjected, (2) the administrative judge
failed to address her other alleged whistleblowing disclosures and protected
activities, (3) the administrative judge should have joined her IRA appeal and
removal appeal and found her removal to be improper, (4) the administrative
judge failed to consider her submissions, including her motions and stay request,
(5) the administrative judge improperly referenced her disciplinary record from
2012 to 2014, and (6) the administrative judge was biased. Petition for Review
(PFR) File, Tab 1. The agency has filed a response opposing the petition. PFR
File, Tab 3. For the following reasons, we find that the Board has jurisdiction
over the appeal, and we remand the appellant’s allegations to the administrative
judge for further adjudication in accordance with this order.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction over an IRA appeal if the appellant has
exhausted her administrative remedies before OSC and makes nonfrivolous
allegations that (1) she made a whistleblowing disclosure described under
5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 5 U.S.C.
3
We find that the appellant is precluded from raising her removal in this IRA appeal
because she elected to appeal it directly to the Board under the procedures of 5 U.S.C.
chapter 75. See 5 U.S.C. § 7121(g). Although the appellant raised the proposed
removal in one of her whistleblower complaints, OSC closed that complaint before the
removal decision was issued. W-2 AF, Tab 9 at 7. Twenty-three days after the removal
decision was issued, the appellant filed her chapter 75 appeal. 0108 IAF, Tab 1. There
is no indication that she raised the matter with OSC in the interim.
6
§ 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). Salerno v. Department of the
Interior, 123 M.S.P.R. 230, ¶ 5 (2016); see 5 U.S.C. §§ 1214(a)(3), 1221(e)(1);
Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).
Once an appellant establishes jurisdiction over her IRA appeal, she is
entitled to a hearing on the merits of her claim, which she must prove by
preponderant evidence. Salerno, 123 M.S.P.R. 230, ¶ 5. If the appellant proves
by preponderant evidence that her whistleblowing disclosure or protected activity
was a contributing factor in a personnel action taken against her, the agency is
given an opportunity to prove, by clear and convincing evidence, that it would
have taken the same personnel action in the absence of the whistleblowing
disclosure or protected activity. Id.; see 5 U.S.C. § 1221(e)(1)-(2).
We find that the appellant established the Board’s jurisdiction over this IRA
appeal because she made nonfrivolous allegations that her August 22, 2014 A2LA
disclosure was a contributing factor in personnel actions 1-2, 5, and 85.
As previously indicated, the administrative judge found that the appellant
exhausted the A2LA disclosure with OSC and nonfrivolously alleged that it was
protected as a violation of agency rules. ID at 4, 7. Neither party challenges
these findings, and we see no reason to disturb them. Accordingly, to establish
the Board’s jurisdiction over this appeal, the appellant need only nonfrivolously
allege that this disclosure was a contributing factor in a personnel action taken
against her.
To satisfy the contributing factor criterion at the jurisdictional stage, an
appellant need only raise a nonfrivolous allegation that the fact of, or content of,
the protected disclosure was one factor that tended to affect the personnel action
in any way. Salerno, 123 M.S.P.R. 230, ¶ 13. One way to establish this criterion
is the knowledge/timing test, under which an employee may nonfrivolously allege
that the disclosure was a contributing factor in a personnel action through
7
circumstantial evidence, such as evidence that the official taking the personnel
action knew of the disclosure and that the personnel action occurred within a
period of time such that a reasonable person could conclude that the disclosure
was a contributing factor in the personnel action. 4 Id.; see 5 U.S.C. § 1221(e)(1).
A personnel action that occurs within 2 years of an appellant’s disclosure
satisfies the timing prong of the knowledge/timing test. Scoggins v. Department
of the Army, 123 M.S.P.R. 592, ¶ 25 (2016). The administrative judge noted in
the initial decision that only eight reprisal actions occurred within 2 years of the
A2LA disclosure, and of those, only actions 1-2, 5, and 85 constituted personnel
actions. ID at 8-9, 11-12. The appellant did not challenge either of these
findings on review. Therefore, concerning the A2LA disclosure, we will only
consider personnel actions 1-2, 5, and 85 in our analysis of contributing factor.
Personnel action 5 concerned the appellant’s lowered calendar year (CY)
2015 evaluation. IAF, Tab 6 at 18, Tab 14 at 9; W-2 AF, Tab 21 at 4-16.
Although we cannot tell when the appellant’s CY 2015 performance evaluation
was issued, it appears that she electronically signed the evaluation on
February 18, 2016. W-2 AF, Tab 21 at 4. This time frame falls within 2 years of
the appellant’s August 2014 disclosure to A2LA, and we find that the appellant
has made a nonfrivolous allegation that the timing component of the
knowledge/timing test is satisfied. Scoggins, 123 M.S.P.R. 592, ¶ 25. We
similarly find that appellant made a nonfrivolous allegation that personnel actions
4
As an alternative to the knowledge/timing test, the Board may consider evidence such
as that 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 those individuals had a desire or motive to retaliate
against the appellant. Rumsey v. Department of Justice, 120 M.S.P.R. 259, ¶ 26 (2013);
IAF, Tab 3 at 4. However, because we have found that the appellant made a
nonfrivolous allegation of contributing factor under the knowledge/timing test, we need
not consider whether she satisfied the alternative method to establish contributing
factor.
8
1, 2, and 85 occurred within 2 years of her August 22, 2014 A2LA disclosure. 5
IAF, Tab 6 at 14-16; W-2 AF, Tab 1 at 6.
We now analyze the knowledge component concerning personnel actions 1,
2, 5, and 85. If the appellant nonfrivolously alleged that any of the
decisionmakers involved with these personnel actions had either actual or
constructive knowledge of her August 22, 2014 disclosure, then she has satisfied
her burden at this stage. 6 See Usharauli v. Department of Health and Human
Services, 116 M.S.P.R. 383, ¶ 19 (2011) (finding that the Board has jurisdiction
when an appellant exhausts his administrative remedies before OSC and makes a
nonfrivolous allegation that at least one alleged personnel action was taken in
reprisal for at least one whistleblowing disclosure).
Under penalty of perjury, the appellant asserted below that G.H., L.D.,
L.L., and D.R. “knew that A2LA conducted a for-cause audit in 2014 for the
purpose of investigating a complaint . . . that could only have come from
1 source.” IAF, Tab 14 at 5. The appellant added that M.P. and L.D. “were both
directly involved in leading NRL’s reaccreditation activities, [and] were directly
privy to her identity as whistleblower as a result of subsequent information
derived from A2LA representatives and/or the extensive internal investigation
conducted.” Id. She further asserted that G.H., L.L., and D.R., who “all
participated directly in NRL’s reaccreditation activities,” “were informed by
involved executive managers of (or inferred) [her] identity as a whistleblower.”
5
Some of the appellant’s personnel actions involve events that occurred over a period
of time, such as, in personnel action 1, exclusion from work assignments from February
2016 to February 23, 2017, and no work assignments in February and March 2017.
IAF, Tab 14 at 5. Similarly, in personnel action 85, the appellant alleged that, after her
October 2015 reassignment “and through the present,” management downgraded her
position description, title, and organizational roles. W-2 AF, Tab 8 at 8. To the extent
that these events occurred outside the 2-year knowledge/timing window, they
nevertheless represent a continuum of related actions for purposes of contributing
factor. See Agoranos v. Department of Justice, 119 M.S.P.R. 648, ¶ 22 (2013).
6
The appellant did not allege any claim involving constructive knowledge of the
disclosure.
9
Id. at 5-6. Additionally, the appellant asserted that she “received feedback” that
her “known or presumed identity as [a] whistleblower” was “widely
disseminated.” 7 Id. at 6. As further support for this contention, the appellant
states on review that some ORA officials knew her to be the source of the
disclosure to A2LA based on her history of raising similar objections within the
agency, the specific issues and staff investigated, and her direct communication
with accreditation organization representatives. 8 PFR File, Tab 1 at 10; W-2 AF,
Tab 19 at 5-10.
The appellant stated under penalty of perjury that one or more of these
named individuals took or was notified of personnel actions 1-2, 5, and 85. IAF,
Tab 14 at 5-9; W-2 AF, Tab 8 at 8. The knowledge issue presents a close call.
However, at this stage, the appellant’s burden to make nonfrivolous allegations
does not require precision. See, e.g., Cahill v. Merit Systems Protection Board,
821 F.3d 1370, 1374 (Fed. Cir. 2016) (holding that, although the appellant did not
identify which management officials or other attendees were present at the
meeting in which he made the whistleblowing disclosure, “when read with an eye
on likely inferences appropriate to the context, [his] allegations are sufficiently
specific and plausible to constitute nonfrivolous assertions that at least one, and
perhaps three, of the officials charged with the personnel actions at issue attended
the [] meeting or at least knew what [the appellant] disclosed there”); Jessup v.
Department of Homeland Security, 107 M.S.P.R. 1, ¶ 10 (2007) (finding that the
7
The appellant did not allege a claim of reprisal for perceived whistleblowing
disclosures.
8
In finding that the appellant failed to nonfrivolously allege that any decisionmaker had
knowledge of her disclosure to A2LA, the administrative judge noted that she asked
A2LA not to be named and her work email not to be used. ID at 10. However, the
reasons A2LA gave for suspending NRL’s accreditation could have had the effect of
outing the appellant as the whistleblower if only she could have provided it with those
reasons. See, e.g., Schnell v. Department of the Army, 114 M.S.P.R. 83, ¶ 22 (2010)
(acknowledging the administrative judge’s finding that, even if a disclosure was made
anonymously, the nature of the disclosure may make it evident that the disclosure could
only have come from the appellant).
10
appellant made a nonfrivolous allegation of knowledge under the
knowledge/timing test because he alleged that the Chief of Staff used his
influence within the agency to cause the Office of General Counsel to take the
personnel actions against him, which the Board construed as an allegation that the
agency decisionmakers either knew of the disclosure via the Chief of Staff or
were influenced by him). Moreover, any doubt or ambiguity as to whether the
appellant made nonfrivolous jurisdictional allegations should be resolved in favor
of finding jurisdiction. Bradley v. Department of Homeland Security,
123 M.S.P.R. 547, ¶ 6 (2016). Accordingly, we find that the appellant made a
nonfrivolous allegation that one or more individuals who took or influenced
personnel actions 1-2, 5, and 85 knew of her A2LA disclosure. Thus, we find that
the appellant has nonfrivolously alleged that her disclosure to A2LA was a
contributing factor in personnel actions 1-2, 5, and 85. She has therefore
established that the Board has jurisdiction over these claims.
We further find that the Board has jurisdiction over some of the appellant’s
remaining allegations of reprisal for whistleblowing disclosures.
In addition to the August 22, 2014 A2LA disclosure discussed above, the
appellant identified numerous other disclosures and activity below. 9 W-2 AF,
Tab 1 at 9-11, Tab 8 at 24-26, Tab 11 at 4-5, Tab 12 at 5-6. The administrative
judge did not address any of these other disclosures or activity in the initial
9
There are discrepancies in how the appellant identified and categorized her
disclosures. Compare W-2 AF, Tab 1 at 9-11, with W-2 AF, Tab 8 at 24-26. There also
appears to be some overlap between the disclosures. For the purposes of our analysis,
we have included the broadest reading of her disclosures. For uniformity in this order,
we have numbered the appellant’s disclosures as follows: disclosure 1 is the A2LA
email, W-2 AF, Tab 1 at 9 (identified as disclosure (a) therein); disclosures 2-18 are
found in W-2 AF, Tab 1 at 9-11 (labeled by the appellant as disclosures (b)-(r) therein);
disclosure 19 is the refiled W-2 appeal, W-2 AF, Tab 8 at 26 (which the appellant listed
as disclosure 7 therein); disclosure 20 comprises the appellant’s equal employment
opportunity complaints, W-2 AF, Tab 11 at 4-5 (which the appellant listed as
disclosure 8 therein); and disclosure 21 is her February 25, 2019 email found at W-2
AF, Tab 12 at 5-6 (which the appellant listed as disclosure 9 therein).
11
decision, and the appellant raises this claim of error on review. We agree with
the appellant, and we now address her other disclosures and activity.
Administrative exhaustion
The Board has jurisdiction over an IRA appeal if, inter alia, an appellant
exhausts her administrative remedies before OSC. Graves v. Department of
Veterans Affairs, 123 M.S.P.R. 434, ¶ 12 (2016). The substantive requirements
of exhaustion are met when an appellant has provided OSC with a sufficient basis
to pursue an investigation. Chambers v. Department of Homeland Security ,
2022 MSPB 8, ¶ 10. The Board’s jurisdiction is limited to those issues that
previously have been raised with OSC. However, appellants may give a more
detailed account of their whistleblowing activities before the Board than they did
to OSC. Id. Appellants may demonstrate exhaustion through their initial OSC
complaint, evidence that they amended the original complaint, including but not
limited to OSC’s determination letter and other letters from OSC referencing any
amended allegations, and their written responses to OSC referencing the amended
allegations. Appellants also may establish exhaustion through other sufficiently
reliable evidence, such as an affidavit or a declaration attesting that they raised
with OSC the substance of the facts in the Board appeal. Id., ¶ 11.
To evaluate exhaustion, we have reviewed the appellant’s two OSC
complaints in MA-18-2621 and MA-18-5547, her supplements thereto, and the
two OSC close-out letters. E.g., IAF, Tab 4 at 13-14, Tab 6; W-2 AF, Tab 4
at 9-18, Tab 9 at 7-8. Based upon our review of these documents, we find that
she exhausted with OSC the disclosures numbered 2-6, 11-18, and 20.
Conversely, we find that she did not exhaust with OSC disclosures 7-10,
19, 21, and portions of disclosure 4. For example, we find that the appellant
failed to exhaust with OSC such activity as her two OSC complaints (OSC Docket
Nos. MA-18-2621 and MA-18-5547) and the instant Board appeals (disclosures 7,
9, 10, 19). We also find that her February 12, 2019, and February 19, 2019
disclosures (part of disclosure 4) and her February 25, 2019 disclosure (disclosure
12
21), were dated after OSC issued its second, February 7, 2019 close-out letter and
could not have been exhausted with OSC. Additionally, the appellant asserted
that she made numerous disclosures to G.H. himself from May to December 2018
(disclosure 8); however, none of her correspondence to OSC or OSC’s responses
to her during and after this time frame included such an allegation.
Whistleblowing disclosures/protected activity
Having determined that the appellant proved OSC exhaustion with regard
to disclosures 2-6, 11-18, and 20, we must next consider whether the appellant
has nonfrivolously alleged that she made whistleblowing disclosures in these
communications. Salerno, 123 M.S.P.R. 230, ¶ 5. A nonfrivolous allegation of a
whistleblowing disclosure is an allegation of fact that, if proven, would show that
the appellant disclosed a matter that a reasonable person in her position would
believe evidenced one of the categories of wrongdoing specified in 5 U.S.C.
§ 2302(b)(8). Id., ¶ 6. The test to determine whether a putative whistleblower
has a reasonable belief in the disclosure is an objective one: whether a
disinterested observer with knowledge of the essential facts known to and readily
ascertainable by the employee could reasonably conclude that the actions of the
agency evidenced any violation of 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. Id.
We find that the appellant has made nonfrivolous allegations that some of
her disclosures were protected. For example, the appellant’s September 6, 2016
email to L.D. (part of disclosure 2) stated, among other things, that she was not
being given assignments in part due to her prior “MSPB complaints,” W-2 AF,
Tab 1 at 9, Tab 8 at 36. We find that this email constitutes a nonfrivolous
allegation of a violation of law. Also, the appellant’s October 30, 2018 email to
M.P. and E.M. (part of disclosure 4), titled “Confidential Whistleblowing
Notification,” stated, among other things, that G.H. approved audit module
software scope contracts but “omit[ed] the requirement that [the vendor] fix all of
13
the critical and major issues identified in last year’s failed audit module
deployment project.” W-2 AF, Tab 8 at 49. We find that the appellant
nonfrivolously alleged that she disclosed an abuse of authority in this email. See,
e.g., Pasley v. Department of the Treasury, 109 M.S.P.R. 105, ¶ 18 (2008) (noting
that an abuse of authority occurs when there is an arbitrary or capricious exercise
of power by a Federal official or employee that adversely affects the rights of any
person or results in personal gain or advantage to herself or preferred other
persons). Similarly, the appellant’s November 27, 2018 email to M.P. and E.M.,
among others (identified in disclosure 4), stated that “as a result of [her]
whistleblowing and [equal employment opportunity (EEO)] complaint
notifications” to them over the past few years and the agency’s failure to take any
corrective action, “management’s hostile retaliation has escalated further both
inside and outside of the workplace.” W-2 AF, Tab 1 at 9, Tab 8 at 50. She
asserted that G.H. and others improperly denied sick leave requests and
“maliciously sabotaged” her car, which resulted in “catastrophic damage.” W-2
AF, Tab 8 at 50. We find that the appellant made a nonfrivolous allegation that
this disclosure involved an abuse of authority and a violation of law (destruction
of property). See, e.g., DiGiorgio v. Department of the Navy, 84 M.S.P.R. 6, ¶ 14
(1999) (explaining that some allegations of wrongdoing, such as theft of
Government property or fraudulent claims for pay, so obviously implicate a
violation of law, rule, or regulation that an appellant need not identify any
specific law, rule, or regulation that was violated).
The appellant also made a number of other disclosures involving
allegations of unlawful instructions, improper denial of sick leave, and
“fraudulent” absence without leave (AWOL) charges, which we find are
nonfrivolous allegations of a violation of law, rule, or regulation, or an abuse of
authority. For example, in her December 17, 2018 email to E.M., M.P., L.L., and
others (referenced in disclosures 4 and 17), the appellant stated her belief that the
termination of her telework agreement and instruction to report to a duty station
14
100 miles away were unlawful, and the AWOL charges against her were
“fraudulent.” W-2 AF, Tab 1 at 11, Tab 8 at 26, 66. Although she did not
identify where in the record we could find the November 21, 2018 email to L.L.,
E.M., and M.P. (disclosure 13), W-2 AF, Tab 1 at 10, we believe that she was
describing the email at W-2 AF, Tab 8 at 55, which included similar allegations. 10
We further find that two of the emails identified in disclosure 3 were
communications to the agency’s Office of Equal Employment Opportunity, dated
December 1, 2018, and January 28, 2019, and that she has made a nonfrivolous
allegation that these are protected under 5 U.S.C. § 2302(b)(9)(C). See Holman v.
Department of the Army, 2025 MSPB 2, ¶ 13; W-2 AF, Tab 8 at 25-26, 57, 70-71.
The remainder of the emails identified in disclosure 3 pertained to other incidents
of alleged discrimination and retaliation for EEO activity. W-2 AF, Tab 8 at 38,
43-45, 57, 70-74. Such allegations, which were not directed to the Office of
Equal Employment Opportunity or any other entity responsible for internal
investigation or review, do not constitute nonfrivolous allegations of
whistleblowing disclosures. See, e.g., Edwards v. Department of Labor,
2022 MSPB 9, ¶¶ 18-23 (finding that disclosures of alleged Title VII violations
are not protected under 5 U.S.C. § 2302(b)(8)).
As for the appellant’s remaining disclosures, we find that some of her
descriptions of the disclosures are too vague to find protected even under the
nonfrivolous allegation standard. See, e.g., Salerno, 123 M.S.P.R. 230, ¶ 6
(finding that, in order to be protected, the appellant’s disclosures must be specific
and detailed, not vague allegations of wrongdoing). For example, in disclosure 3,
she stated that from June to October 2017, she made “whistleblowing disclosures”
10
The appellant alleged in disclosure 17 that she made similar disclosures to other
managers in a December 10, 2018 email. W-2 AF, Tab 1 at 11. However, she did not
reference this email at W-2 AF, Tab 8 at 25-26, and she did not identify the location of
this communication in the record or explain to whom the disclosure was made. Because
the content of this disclosure appears duplicative of the disclosures of wrongdoing in
the November 21, 2018, and December 17, 2018 emails, which we find protected
herein, we do not address the December 10, 2018 email further.
15
to E.A., and in disclosure 5, she stated that from January to March 2018, she
made “whistleblowing disclosures” to B.C., W-2 AF, Tab 1 at 9, but she did not
offer any explanation of the nature of the disclosures or include any citations to
where these communications could be found in the record. Also, in disclosure 12,
the appellant stated that on November 14, 2018, she disclosed “that [an EEO]
representative refused to receive ongoing claims and initiate a new complaint.”
Id. at 10. She does not, however, identify to whom the disclosure was made or
the category of disclosure under 5 U.S.C. § 2302(b)(8), nor does she offer a
citation for where this communication can be found in the record. The Board is
not required to pore through the record in order to construe or make sense of
pleadings filed by a party. Keefer v. Department of Agriculture, 92 M.S.P.R. 476,
¶ 18 n.2 (2002). For these reasons, we find that the appellant has not made
nonfrivolous allegations that these disclosures were protected. See, e.g.,
Luecht v. Department of the Navy, 87 M.S.P.R. 297, ¶ 8 (2000) (stating that an
appellant’s submissions that lack clarity run the risk of being found to have failed
to meet the requisite burden of proof).
Finally, we have considered the appellant’s description of the remaining
disclosures, but we find that she has failed to make a nonfrivolous allegation that
any of them constitute whistleblowing disclosures. For instance, the March 30,
2017 email described in disclosure 2 “[brought] to [L.D.’s] attention the
continued lack of work assignments by management” during that month. W-2
AF, Tab 1 at 9, Tab 8 at 37. Additionally, an August 28, 2018 email alluded to in
disclosure 4 advised M.P. and E.M. that “further events of
discrimination/reprisal, which were previously reported to your attention without
corrective, preventive effect, have been reported to OSC.” W-2 AF, Tab 1 at 9,
Tab 8 at 25, 48. In her December 4, 2018 email described in disclosures 4 and
15, the appellant carbon copied E.M., M.P., and G.H. on an email to her
then supervisor, L.L., asking why her telework agreement was terminated and
explaining that she could not report to the office because she lives too far away
16
from the facility. W-2 AF, Tab 1 at 9-10, Tab 8 at 25, 58-59. Her December 5,
2018 email to E.M., M.P., G.H., and “[EEO] management,” identified in
disclosures 4 and 16, “advise[d]” these officials that she requested to rescind the
“fraudulent and retaliatory supervisory action,” i.e., the termination of her
telework agreement. W-2 AF, Tab 1 at 9-10, Tab 8 at 25-26, 60-65.
Disclosure 14 requires additional discussion but ultimately does not
warrant a different outcome. There, the appellant alleged that, on November 27,
2018, and December 1, 2018, she disclosed that “management is proposing hiring
additional unit positions while denying qualified staff [(herself)] work for
[approximately] 75% of [the] time for the past year (plus) and ongoing.” 11 W-2
AF, Tab 1 at 10, Tab 8 at 25-26. Even if we considered the appellant’s
substantive allegations, we would find that she did not make a nonfrivolous
allegation that she disclosed any of the categories described in 5 U.S.C.
§ 2302(b)(8). For example, her disclosure does not appear to implicate a specific
and substantial danger to public safety, nor does it constitute a reasonable belief
of a gross waste of funds or gross mismanagement. See, e.g., Van Ee v.
Environmental Protection Agency, 64 M.S.P.R. 693, 698 (1994) (finding that a
gross waste of funds constitutes a more than debatable expenditure that is
significantly out of proportion to the benefit reasonably expected to accrue to the
Government); White v. Department of the Air Force, 63 M.S.P.R. 90, 95 (1994)
(holding that gross mismanagement means a management action or inaction
which creates a substantial risk of significant adverse impact upon the agency’s
ability to accomplish its mission). We have considered whether her disclosure
concerns a violation of law, rule, or regulation or an abuse of authority. In the
11
The appellant does not identify to whom these disclosures were made or where in the
record these disclosures can be found. We have reviewed the December 1, 2018 email
discussed above, W-2 AF, Tab 8 at 57, which describes the same content, but it would
not be protected because she was making the disclosure to add more claims to her EEO
complaint, which does not involve reprisal for whistleblowing. We have considered the
appellant’s November 27, 2018 email discussed above, W-2 AF, Tab 8 at 50, but this
email does not raise these issues.
17
absence of any contextual information, such as whether the agency’s proposed
hiring decisions would not be based on merit, her bare assertion regarding the
agency’s proposal does not support a nonfrivolous allegation of a reasonable
belief of a violation of law, rule, or regulation or an abuse of authority. Cf.
Schaeffer v. Department of the Navy, 86 M.S.P.R. 606, ¶¶ 9-10 (2000) (noting
that the appellant made a nonfrivolous allegation that he disclosed a violation of
law and an abuse of authority regarding personnel selections being made without
regard to merit), overruled on other grounds by Covarrubias v. Social Security
Administration, 113 M.S.P.R. 583 (2010), overruled on other grounds by
Colbert v. Department of Veterans Affairs, 121 M.S.P.R. 677 (2014).
Contributing factor
Having determined that the appellant made a nonfrivolous allegation of
whistleblowing disclosures in her September 6, 2016, October 30, 2018,
November 21, 2018, November 27, 2018, and December 17, 2018
communications, we must now determine whether she made a nonfrivolous
allegation that one or more of these communications was a contributing factor in
the agency’s decision to take one or more of the remaining personnel actions
against her.
The appellant’s September 6, 2016 disclosure was made to L.D., W-2 AF,
Tab 8 at 36, and she asserted below that L.D. was notified of or took personnel
actions 1-2 and 4-5, IAF, Tab 14 at 5-9. We find that the appellant has
nonfrivolously alleged that her September 6, 2016 disclosure was a contributing
factor in personnel actions 1-2 and 4-5.
Personnel actions 1-2, 4-5, 33, 39, 72, 77, 82, 86, and 88 occurred before
the October 30, 2018 disclosure, and thus, the October 30, 2018, November 21,
2018, November 27, 2018, and December 17, 2018 disclosures could not have
been contributing factors in these personnel actions. IAF, Tab 14 at 5-9, 32-33,
37-38, 57-58, 64-65, 68; W-2 AF, Tab 8 at 5-6, 8-16, 18-21; see, e.g., Mason v.
Department of Homeland Security, 116 M.S.P.R. 135, ¶ 29 (2011) (noting that,
18
because the alleged personnel actions predated the taxi fare disclosure, the
appellant failed to nonfrivolously allege that the taxi fare disclosure contributed
to them). Therefore, we will no longer consider personnel actions 1-2, 4-5, 33,
39, 72, 77, 82, 86, and 88 in our analysis of contributing factor. 12
The appellant’s October 30, 2018 disclosure was made to M.P. and E.M.
W-2 AF, Tab 8 at 49. The appellant asserted below that one or both of these
individuals took or were notified about personnel actions 63, 85, 87, 89-95, 98,
and 100-01. E.g., IAF, Tab 14 at 57-58; W-2 AF, Tab 8 at 8-15, 18-22. We
therefore find that she made a nonfrivolous allegation that this disclosure was a
contributing factor in these personnel actions that occurred within 2 years of this
disclosure.
The appellant’s November 21, 2018 disclosure, which was made to L.L.,
E.M., M.P., and G.B., W-2 AF, Tab 8 at 55, postdated personnel actions 93 and
94, and could not have been a contributing factor in these personnel actions. The
appellant alleged that one or more of these individuals took or were notified
about personnel actions 63, 85, 87, 89-92, 95, 98, 100-01. IAF, Tab 14 at 57-58;
W-2 AF, Tab 8 at 8-13, 15-16, 18-22, Tab 18 at 4. We therefore find that she
made a nonfrivolous allegation that her November 21, 2018 disclosure was a
contributing factor in the agency’s decision to take these personnel actions, which
occurred within 2 years of this disclosure.
Similarly, the appellant’s November 27, 2018 disclosure, which was sent to
M.P., E.M., and C.M., W-2 AF, Tab 8 at 50, postdated personnel actions 93-95
and could not have been a contributing factor in those actions. The appellant
alleged that one or more of these individuals took or were notified about
personnel actions 63, 85, 87, 89-92, 98, 100, and 101. IAF, Tab 14 at 57-58; W-2
AF, Tab 8 at 8-13, 18-20. We therefore find that she made a nonfrivolous
12
We recognize that portions of personnel actions 63, 85, 87, and 89-92 occurred before
October 30, 2018. E.g., IAF, Tab 14 at 57-58; W-2 AF, Tab 8 at 8-9, 11-13. In our
analysis, we will only focus on the portions of these personnel actions that occurred
after the corresponding disclosures.
19
allegation that this disclosure was a contributing factor in the agency’s decision
to take personnel actions 63, 85, 87, 89-92, 98-100, and 101, which occurred
within 2 years of the disclosure.
As far as the EEO activity described in disclosure 3 is concerned, the
appellant’s December 1, 2018 email was copied to C.M., E.M., and M.P. W-2
AF, Tab 8 at 57. The actions that postdated that email and which the appellant
alleges that one or more of these officials influenced are personnel actions 98,
100, and 101. Id. at 18-21. The only personnel action postdating the appellant’s
January 28, 2019 email (with copies to C.M. and S.G.) was personnel action 101.
Id. at 21-22, 70-71. We find that the appellant has made a nonfrivolous
allegation of contributing factor in this regard.
Finally, her December 17, 2018 email, which was sent to E.M., M.P., G.B.,
L.L., and G.H., W-2 AF, Tab 8 at 66, predated personnel actions 93-95 and 98.
She alleged that one or more of these individuals took or were notified about
personnel actions 63, 85, 87, 89-92, 100-01. IAF, Tab 14 at 57-58; W-2 AF,
Tab 8 at 8-13, 18-22, Tab 18 at 4. We find that she made a nonfrivolous
allegation that this disclosure was a contributing factor in personnel actions 63,
85, 87, 89-92, 100-01, which occurred within 2 years of the disclosure.
Because we find that the appellant has satisfied her burden to make
nonfrivolous allegations that the aforementioned disclosures were contributing
factors in the enumerated personnel actions, 13 on remand, the administrative judge
shall hold the requested hearing and shall adjudicate whether the appellant
satisfied her burden of proving these assertions by preponderant evidence. If so,
then the administrative judge shall evaluate whether the agency has proven by
clear and convincing evidence that it would have taken the same personnel
actions in the absence of the whistleblowing disclosures.
13
Regarding any remaining personnel actions not specifically addressed in this section,
we have considered the alternative method of proving contributing factor, supra note 4,
but we find that the appellant has not met her burden to make nonfrivolous allegations
of contributing factor under this alternative method.
20
Additionally, we vacate the administrative judge’s finding in the initial
decision that the appellant’s allegations individually or collectively did not rise to
the level of actionable harassment or a hostile work environment. ID at 12-13.
In Skarada v. Department of Veterans Affairs, 2022 MSPB 17, ¶¶ 15-16, the
Board analyzed the personnel action found at 5 U.S.C. § 2302(a)(2)(A)(xii), a
“significant change in duties, responsibilities, or working conditions,” and it held
that to amount to a “significant change,” an agency action must have a significant
impact on the overall nature or quality of an employee’s working conditions,
responsibilities, or duties. The Board also emphasized in Skarada that it must
consider such actions with a broad interpretation. Id., ¶ 16.
As noted above, we have found that the appellant made nonfrivolous
allegations that her whistleblowing disclosures were contributing factors in the
agency’s decision to take seventeen discrete personnel actions against her. We
further find that the cumulative effect of these seventeen actions could constitute
a significant change in her working conditions, responsibilities, or duties under
5 U.S.C. § 2302(a)(2)(A)(xii). The appellant is therefore entitled to a hearing on
the merits of this claim, and we remand this claim to the administrative judge.
The appellant’s remaining arguments are without merit.
The administrative judge found that, because the appellant appealed her
removal as a separate action, it would not be considered in this IRA appeal. ID
at 3. On review, the appellant argues that the administrative judge erred by not
considering her removal as part of her IRA appeal and asserts that her appeals
should have been joined. PFR File, Tab 1 at 5-6. Joinder of two or more appeals
filed by the same appellant may be appropriate when it would expedite processing
of the appeals and when it would not adversely affect the interests of the parties.
5 C.F.R. § 1201.36(b). Despite the fact that both appeals are pending on review,
the appellant has failed to persuade us that joinder would expedite the processing
of her appeals and not adversely affect the interests of the parties. We therefore
21
deny her request for joinder. To the extent that the appellant raises arguments
regarding the removal action on review, we will not address them herein.
The appellant argues that the administrative judge failed to consider her
January 27, 2019 stay request. 14 PFR File, Tab 1 at 7-8. The appellant requested
that the Board stay personnel actions 95, 98, 100, and 101 (the latter of which she
described at the time as “[a]ny further personnel action”). W-2 AF, Tab 1 at 4-5,
11-13. Contrary to the appellant’s assertion on review, the administrative judge
advised her, in an order granting her an extension of time to file a submission,
that the regulation regarding a motion for a stay was at 5 C.F.R. § 1209.9. W-2
AF, Tab 7 at 1-2. It does not appear that the appellant filed another stay request
in accordance with the administrative judge’s instruction. Even if we construe
the administrative judge’s statement as a denial of her stay request, the appellant
may not challenge that decision through the petition for review process; a request
for interlocutory appeal is the only option. Mason, 116 M.S.P.R. 135, ¶ 30;
Mogyorossy v. Department of the Air Force, 96 M.S.P.R. 652, ¶ 24 (2004). The
appellant did not seek an interlocutory appeal below. Thus, on review, the Board
will not consider her challenge to the administrative judge’s handling of her stay
request.
The appellant asserts that her disciplinary record from the 2012 to 2014
timeframe should have been expunged from the agency’s records and that the
administrative judge erred in referencing them. PFR File, Tab 1 at 8. The
administrative judge referenced this disciplinary history in the background
section of the initial decision. ID at 3. However, it is not clear how this
argument relates to this IRA appeal. Because we are remanding the appeal, the
administrative judge should, if appropriate, address this argument on remand.
14
She also stated that the administrative judge failed to consider her March 21 and
May 24 motions to schedule a settlement conference. PFR File, Tab 1 at 7-8. The
motions identified by the appellant appear to have been filed in her removal appeal.
0108 IAF, Tabs 4, 21. We will address her argument regarding those motions in a
separate order in that matter.
22
The appellant also argues that the administrative judge was biased. Id.
at 6-9, 13. In making a claim of bias or prejudice against an administrative judge,
a party must overcome the presumption of honesty and integrity that accompanies
administrative adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R.
382, 386 (1980). An administrative judge’s conduct during the course of a Board
proceeding warrants a new adjudication only if the administrative judge’s
comments or actions evidence “a deep-seated favoritism or antagonism that would
make fair judgment impossible.” Bieber v. Department of the Army, 287 F.3d
1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540,
555 (1994)).
Here, the appellant attributes the administrative judge’s alleged
adjudicatory errors to “inexplicable negligence or blatant bias.” PFR File, Tab 1
at 13. However, an administrative judge’s findings, even if erroneous, are
insufficient in themselves to establish bias. Myers v. Department of Agriculture,
81 M.S.P.R. 496, ¶ 29 (1999). Even if an administrative judge’s remarks are
critical or disapproving of, or even hostile to, counsel, the parties, or their cases,
such remarks ordinarily do not support a bias claim. Liteky, 510 U.S. at 555. The
appellant has failed to establish that the administrative judge’s comments or
actions evidence “a deep-seated favoritism or antagonism that would make fair
judgment impossible,” Bieber, 287 F.3d at 1362-63, and we therefore find her
claim of bias to be without merit.
We provide additional guidance to the administrative judge on remand.
We have found herein that the appellant made nonfrivolous allegations that
her August 22, 2014 A2LA disclosure and her September 6, 2016, October 30,
2018, November 21, 2018, November 27, 2018, December 1, 2018, December 17,
2018, and January 28, 2019 disclosures were whistleblowing disclosures that
were a contributing factor in the personnel actions noted above. On remand, the
administrative judge shall evaluate whether the appellant satisfied her burden by
preponderant evidence; if so, the administrative judge shall proceed to evaluate
23
whether the agency proved by clear and convincing evidence that it would have
taken the same personnel actions in the absence of her disclosures.
We find it appropriate to provide the administrative judge with additional
guidance on remand. For example, if the appellant fails to satisfy the
contributing factor knowledge/timing test, the administrative judge shall consider
other evidence, such as that 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 those
individuals had a desire or motive to retaliate against the appellant. Rumsey,
120 M.S.P.R. 259, ¶ 26.
Additionally, the appellant stated in her August 22, 2014 A2LA email that
it was her “ethical responsibility as NRL [Quality Service Manager] to report
quality issues” and that she did so through “established [a]gency channels without
resolution.” W-2 AF, Tab 8 at 29, 31. It is unclear if the appellant’s disclosure
to A2LA was made in the normal course of her duties; if so, the administrative
judge shall determine whether the “extra proof requirement” applies at the merits
stage, such that the appellant must prove by preponderant evidence that the
agency took a personnel action because of the disclosure and did so with an
improper, retaliatory motive. Salazar v. Department of Veterans Affairs,
2022 MSPB 42, ¶¶ 9-124.
24
ORDER
For the reasons discussed above, we remand this case to the Northeastern
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.