Opinion

Chase Lentz v. Department of the Interior

Court: Merit Systems Protection Board
Filed: Dec 16, 2025
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 37.7%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHASE MATTHEW LENTZ, DOCKET NUMBERS

Appellant, SF-1221-21-0497-W-3

SF-0752-22-0494-I-1

v. SF-0752-15-0363-B-1

SF-4324-17-0229-B-1

DEPARTMENT OF THE INTERIOR, SF-4324-16-0198-B-1

Agency. SF-4324-15-0364-B-1

DATE: December 16, 2025

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Chase Matthew Lentz , Bakersfield, California, pro se.

Gregory Eyler , Washington, D.C., for the agency.

Kevin Mack , Sacramento, California, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed his constructive suspension and constructive removal claims, denied

his request for corrective action under the Uniformed Services Employment

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

Reemployment Rights Act (USERRA), and granted his request for corrective

action for violations of 5 U.S.C. § 2302(b)(8) regarding the agency’s decision to

propose and sustain a 14-day suspension. Generally, we grant petitions such as

this one 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 the petitioner

has not established any basis under section 1201.115 for granting the petition for

review. Therefore, we DENY the petition for review. We MODIFY the initial

decision to find that the appellant established contributing factor as to his Fiscal

Year 2014 (FY2014) performance evaluation, but that the agency established by

clear and convincing evidence that it would have taken this personnel action in

the absence of the appellant’s protected disclosures. Except as expressly

MODIFIED by this Final Order, we AFFIRM the initial decision.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge correctly found that the appellant did not prove that he

was constructively suspended.

An employee’s absence for more than 14 days that results in a loss of pay

may be a constructive suspension appealable under 5 U.S.C. §§ 7512(2) and

7513(d). To demonstrate that the absence was not voluntary and is an actionable

constructive suspension, an appellant must show the following: (1) he lacked a

meaningful choice in the matter; and (2) it was the agency’s wrongful actions that

deprived him of that choice. Martin v. U.S. Postal Service, 2022 MSPB 22, ¶ 7.

This analysis extends to situations in which the agency prevented the appellant’s

return to work after an initial voluntary leave of absence. Id.

The Board already determined that the appellant made a nonfrivolous

allegation that he was subjected to a constructive suspension and was therefore

entitled to the opportunity to prove the Board’s jurisdiction by preponderant

evidence. Lentz v. Department of the Interior, MSPB Docket No. SF-0752-15-

0363-R-1, Remand Order (June 30, 2022) (Remand Order). The appellant alleged

below that he was subjected to a constructive suspension when he was forced to

use leave from November 12, 2014, through his resignation on February 13, 2015,

because of intolerable working conditions that aggravated his disabilities.

Lentz v. Department of the Interior, MSPB Docket No. SF-1221-21-0497-W-3,

Appeal File (0497 AF), Tab 5 at 23-28, 59. The administrative judge found that

the appellant did not prove that he was effectively barred from the workplace by

the agency’s request for medical certification, its denial of his request for

accommodation, or by intolerable working conditions. Consistent with the

Board’s Remand Order, the administrative judge considered the evidence the

appellant proffered in support of his claims that the agency took actions or made

decisions for discriminatory reasons, in violation of USERRA, or in violation of

the Whistleblower Protection Enhancement Act (WPEA), and did not find any of

that evidence suffice to render his absence involuntary. 0497 AF, Tab 9, Initial

Decision (ID) at 36.

On review, the appellant alleges that his absence was due to psychological

damage, and he asserts that the administrative judge did not consider that his

absence was due to the agency’s unlawful actions. Petition for Review (PFR)

File, Tab 1 at 27-28. The appellant’s cursory and vague assertions provide no

reason for disturbing the administrative judge’s extremely comprehensive and

well-reasoned findings. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98,

106 (1997) (stating that the Board will not disturb an administrative judge’s

findings when she considered the evidence as a whole, drew appropriate

inferences, and made reasoned conclusions on issues of credibility).

The administrative judge properly found that the appellant did not prove that he

was constructively removed.

The Board remanded the joined appeals to consider whether the “totality of

the evidence, including both the evidence of alleged USERRA violations and the

evidence of other coercive action actions, rendered [the appellant’s] resignation

involuntary.” See Lentz v. Merit Systems Protection Board, 876 F.3d 1380, 1386

(Fed. Cir. 2017). In the Remand Order, the Board determined that the appellant

had made nonfrivolous allegations that the agency made his working environment

sufficiently hostile as to lead to his involuntary resignation. Remand Order at 8.

On remand, the administrative judge found no facts in the record that would

support a finding that the agency misinformed or deceived the appellant. The

administrative judge determined that, instead, the appellant argues he was

deprived of free choice by intolerable working conditions. ID at 38. Pursuant to

the U.S. Court of Appeals for the Federal Circuit’s and Board’s orders, the

administrative judge examined “the surrounding circumstances to test the ability

of the employee to exercise free choice.” Lentz, 876 F.3d at 1384 (quoting

Perlman v. United States, 490 F.2d 928, 933 (Ct. Cl. 1974)).

On petition for review, the appellant asserts that he was forced to resign

because the agency’s actions aggravated his medical conditions. PFR File, Tab 1

at 29. However, the administrative judge considered the appellant’s arguments

below that the agency’s actions impacted his health and coerced him to resign and

found these assertions unavailing. ID at 40. The appellant further states that “the

‘stand and fight’ assertion” by the administrative judge was unreasonable. PFR

File, Tab 1 at 29. However, the administrative judge’s findings are consistent

with long-standing Board case law. ID at 45; see Axsom v. Department of

Veterans Affairs, 110 M.S.P.R. 605, ¶ 17 (2009) (stating that an employee who

“had the option to stand and fight the alleged discrimination, harassment, and

retaliation rather than resign” failed to establish that her resignation was

involuntary). The appellant further alleges that the agency threatened an action it

could not substantiate because it was based on retaliation. PFR File, Tab 1 at 9.

The administrative judge addressed this issue below and found that, even if the

notice of proposed suspension and letter of decision on the suspension were

tainted by unlawful animus, they would not have coerced a reasonable person to

resign. ID at 45. There is no basis for disturbing the administrative judge’s

findings which are based on her careful record review and consistent with the

Board’s and court’s remand orders.

The administrative judge correctly determined that the appellant did not prove

that he was subjected to discrimination or reprisal prohibited by USERRA.

The Board remanded for consideration on the merits of the appellant’s two

separate USERRA appeals, MSPB Docket Nos. SF-4324-16-0198-I-1 and

SF-4324-17-0229-I-1. Remand Order. In the 0198 appeal, the appellant alleged

that the agency had violated USERRA when it did not select him for several

positions and a detail. The second USERRA appeal, 0229, was docketed in

response to the Board’s October 14, 2016 Final Order to separately adjudicate the

appellant’s claims that the agency violated USERRA in connection with the

issuance of the letter of reprimand, notice of proposed suspension and letter of

decision, and alleged constructive suspension. Lentz v. Department of the

Interior, MSPB Docket No. SF-4324-15-0364-I-1, Final Order (Oct. 14, 2016).

USERRA “prohibits discrimination in employment on the basis of military

service.” McGuffin v. Social Security Administration, 942 F.3d 1099, 1107 (Fed.

Cir. 2019). USERRA prohibits denial of employment, reemployment, retention in

employment, promotion, “or any other benefit of employment,” if the person’s

“membership, application for membership, service, application for service, or

obligation for service in the uniformed services is a motivating factor in the

employer’s action,” unless the employer “can prove that the action would have

been taken in the absence of” such membership or service. Id.; see 38 U.S.C.

§ 4311(a). Further, a USERRA discrimination case may be filed concerning

discrimination or retaliation because a person (1) has taken an action to enforce a

right afforded any person under 38 U.S.C. chapter 43, (2) has testified or

otherwise made a statement in or in connection with any proceeding under [that]

chapter, (3) has assisted or otherwise participated in an investigation under [that]

chapter, or (4) has exercised a right provided for in [that] chapter. 38 U.S.C.

§ 4311(b).

At the hearing stage, the employee asserting a USERRA claim has the

burden of showing by a preponderance of the evidence that his

“membership . . . in the uniformed services” or his protected activity was a

substantial or motivating factor in the adverse employment action.” McGuffin,

942 F.3d at 1108. As part of this analysis, the Federal Circuit considers “four,

non-exclusive ‘Sheehan factors,’” as follows: (1) proximity in time between the

employee’s military activity and the adverse employment action,

(2) inconsistencies between the proffered reason and other actions of the

employer, (3) an employer’s expressed hostility towards members protected by

the statute together with knowledge of the employee’s military activity, and

(4) disparate treatment of certain employees compared to other employees with

similar work records or offenses. Id. (citing Sheehan v. Department of the Navy,

240 F.3d 1009, 1014 (Fed. Cir. 2001)).

Here, the administrative judge carefully considered the actions at issue in

this case and found that the appellant failed to meet his burden of proving by

preponderant evidence that his prior military service or identification as a veteran

was a substantial or motivating factor in these actions. Regarding the appellant’s

nonselection for a supervisory position, either as a temporary detailee or

permanent appointee, the appellant argues on review that the administrative judge

should not have credited his second-level supervisor’s justifications for not

choosing him. PFR File, Tab 1 at 23-24. Further, he disputes that the lack of

temporal proximity of his Coast Guard service to his nonselections is relevant.

Id. at 23. He also argues that his second-level supervisor used merit promotion

certificates specifically to avoid being required to select the appellant. Id.

at 24-25.

The appellant’s arguments are unavailing. The administrative judge

considered that the appellant’s military service ended over a decade before all of

the actions at issue, and she found that this detracts from any inference that it was

a substantial or motivating factor in any of the management actions at issue. ID

at 49. In making this finding, the administrative judge properly applied the

Sheehan factors. Sheehan, 240 F.3d at 1014. The appellant has provided no

reason for disturbing the administrative judge’s decision to credit his

second-level supervisor reasons for not selecting him—a decision which was

based on the administrative judge’s comprehensive review of the record and

application of the factors set forth in Borninkhof. See, e.g., ID at 51; see also

Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 87 (1981) (setting forth the

factors that the Board considers when weighing the probative value of hearsay

evidence). Furthermore, the administrative judge considered the appellant’s

argument that his second-level supervisor used a merit promotion certificate to

avoid making an offer to him and found the appellant’s contention to constitute

speculation that was not reliable or persuasive. ID at 55. Moreover, the

administrative judge properly found that an agency has discretion as to which

authority it will use to fill its positions and it may select or not select from the

applicants who respond to a vacancy announcement. Id.; see Ward v. Office of

Personnel Management, 79 M.S.P.R. 530, 534 (1998), aff’d, 194 F.3d 1333 (Fed.

Cir. 1999) (Table).

Regarding the appellant’s 14-day suspension, the administrative judge

found that the appellant’s second-level supervisor had a reasonable basis for

charge 2, specification 6, although the supervisor mistakenly believed the

appellant sent the email to stakeholder organizations. ID at 88. The appellant

disputes this particular finding, arguing that the administrative judge erred in

relying on the supervisor’s error in interpreting the specification. 2 PFR File,

Tab 1 at 22. However, as the administrative judge found, even accepting this

argument, the appellant identifies no evidence showing that his prior uniformed

service or his identification as a veteran was a substantial or motivating factor in

the agency’s decision to include this specification in the notice of proposed

suspension or in the decision to sustain it. ID at 88. The appellant also argues

that his second-level supervisor’s discriminatory animus was evidenced by having

“armed federal law enforcement presence” during his response to the notice of

proposed suspension. PFR File, Tab 1 at 27. The appellant’s assertion

constitutes mere disagreement with the administrative judge’s well -reasoned

finding that the appellant’s second-level supervisor was not motivated by hostility

towards the appellant due to his prior military service but rather legitimate

concerns about the appellant’s erratic behavior. ID at 90-91 ; see Crosby,

74 M.S.P.R. at 106.

The appellant argues that the administrative judge should have

independently examined the factors set forth in Douglas v. Veterans

Administration, 5 M.S.P.R. 280 (1981), 3 including whether his medical conditions

such as depression and adjustment disorder mitigated the misconduct. PFR File,

Tab 1 at 4. However, the administrative judge properly considered the Douglas

factors in the context of the appellant’s USERRA claim. The administrative

judge found that the appellant’s second-level supervisor considered the relevant

Douglas factors as to the appellant’s letter of reprimand and 14-day suspension.

ID at 88-91. Furthermore, the administrative judge considered the appellant’s

To the extent the appellant is attempting to raise some type of due process claim for

the first time on review, USERRA is not a vehicle to remedy a due process violation,

even if one occurred. See Velazquez-Garcia v. Horizon Lines of Puerto Rico, Inc .,

473 F.3d 11, 21 n.9 (1st Cir. 2007); see also Morris v. Department of the Navy,

123 M.S.P.R. 662, ¶ 15 n.12 (2016) (the decisions of other circuit courts may serve as

persuasive authority).

In Douglas, the Board articulated a nonexhaustive list of factors relevant to the

penalty determination in adverse actions. 5 M.S.P.R. 280, 305-06.

argument that the agency did not give sufficient consideration to his mental

conditions at the time of the misconduct and found that the relevant agency

officials properly referenced his medical conditions as a mitigating factor. ID

at 89. The administrative judge determined that the agency officials considered

the medical information that was available to them at the time of the proposal and

decision and found no persuasive evidence that the appellant’s prior military

service and identification as a veteran was a substantial or motivating factor in

how they weighed this evidence. ID at 89-90. Thus, we find the appellant’s

argument unavailing.

The administrative judge correctly granted the appellant’s request for corrective

action for violations of 5 U.S.C. § 2302(b)(8).

On July 20, 2022, the administrative judge issued an order addressing the

jurisdictional issues in the appellant’s whistleblower reprisal appeal, currently

docketed as MSPB Docket No. SF-1221-21-0497-W-3. 0497 AF, Tab 4. In that

order, the administrative judge found the appellant had satisfied his jurisdictional

burden and that she would address the merits of his claim based on 16 protected

disclosures and/or activities that he nonfrivolously alleged were a contributing

factor in 12 personnel actions. Id. The parties were given an opportunity to

object to the framing of the issues for adjudication and neither party did so.

Thus, only the merits of the appellant’s individual right of action (IRA) appeal

are before the Board at this juncture.

To be entitled to corrective action in an IRA appeal, after the appellant

meets their jurisdictional burden, they must establish a prima facie case of

whistleblower retaliation by proving by preponderant evidence that they made a

protected disclosure or engaged in protected activity that was a contributing

factor in a personnel action taken against them. 5 U.S.C. § 1221(e)(1));

Mastrullo v. Department of Labor, 123 M.S.P.R. 110, ¶ 12 (2015). If the

appellant meets that burden, the burden of persuasion shifts to the agency to

prove by clear and convincing evidence that it would have taken the same action

in the absence of the appellant’s protected disclosure or activity. 5 U.S.C.

§ 1221(e)(2); Shannon v. Department of Veterans Affairs, 121 M.S.P.R. 221, ¶ 24

(2014).

The administrative judge correctly found that only disclosures 7-10 and 15 were

protected under 5 U.S.C. § 2302(b)(8).

The administrative judge accepted the following protected disclosures for

adjudication on the merits: (1) on October 23, 2013, the appellant reported that

his supervisor had inappropriately requested him to work during the government

shutdown; (2) on November 29, 2013, the appellant disclosed that his supervisor

had made false statements in his performance evaluation and his personnel file;

(3) on February 5, 2014, the appellant was subjected to harassment and reprisal

because of his earlier disclosures; (4) on June 17, 2014, the appellant disclosed

the agency’s failure to monitor employee use of government travel/charge cards;

(5) on July 17, 2014, the appellant disclosed that documents from his local

personnel file had been destroyed; (6) on July 17, 2014, the appellant disclosed

that a supervisor acted toward him in a threatening and aggressive manner, posted

a discourteous remark online using his official title, and acted in an intimidating

way toward interns under his mentorship; (7) on July 18, 2014, the appellant

reported an agency supervisor had harassed two female interns; (8) on

September 9, 2014, the appellant disclosed that an agency supervisor had directed

his staff to make an unauthorized pesticide application in violation of Federal and

state policy and regulations; (9) on September 26, 2014, the appellant disclosed a

violation of 5 U.S.C. § 2302(b)(8) when his supervisor disciplined him for

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

(10) on October 6, 2014, the appellant disclosed gross negligence concerning

management’s use of grant funds; (11) on October 6, 2014, the appellant

disclosed that he was directed to act outside of his position description and scope

of his authority, and abuse of the mentor/internship relationship; (12) on

November 3, 2014, the appellant filed an informal grievance disclosing violations

of the Privacy Act; (13) on November 10, 2014, the appellant disclosed that an

agency policy was discriminatory and a violation of the Paperwork Reduction Act

of 1995; (14) on November 24, 2014, the appellant disclosed that his supervisor

made false statements in the notice of proposed 14-day suspension; (15) on

November 24, 2014, the appellant disclosed that his supervisor violated 5 U.S.C.

§ 2302(b)(8) or (b)(9) by charging him with improper conduct for making

disclosures; and (16) on November 24, 2014, the appellant disclosed that he was

disciplined for refusing to perform duties outside the scope of his authority.

0497 AF, Tab 4. The administrative judge found that only disclosures 7 -10 and

15 were protected. ID at 96-118. The appellant disputes the administrative

judge’s findings regarding disclosures 1-5, 11, and 14. PFR File, Tab 1 at 8-15.

The petition for review does not address disclosures 6, 12, 13, and 16, and we

discern no basis to disturb the administrative judge’s findings regarding these

disclosures.

A protected disclosure is a disclosure of information that an appellant

reasonably believes evidences a violation of any law, rule, or regulation, gross

mismanagement, a gross waste of funds, an abuse of authority, or a substantial

and specific danger to public health or safety . Schoenig v. Department of Justice,

120 M.S.P.R. 318, ¶ 8 (2013) (citing 5 U.S.C. § 2302(b)(8)). The proper test for

determining whether an employee had a reasonable belief that his disclosures

were protected is whether a disinterested observer with knowledge of the

essential facts known to and readily ascertainable by the employee could

reasonably conclude that the actions evidenced a violation of a law, rule, or

regulation, or one of the other conditions set forth in 5 U.S.C. § 2302(b)(8). Id.

The administrative judge carefully considered the record and found

disclosures 1, 2, 4, 5, and 11 to be vague, conclusory, and insufficient to

constitute a protected disclosure of any of the types of wrongdoing described in

5 U.S.C. § 2302(b)(8). ID at 97, 99, 102. The administrative judge also found

that disclosures 2 and 11 evidenced a disagreement between an employee and a

manager and constituted a workplace grievance not covered by

section 2302(b)(8). ID at 98, 112. Concerning disclosure 3, the administrative

judge found that these communications were the same as those that have been

fully adjudicated in the appellant’s prior IRA appeal and that a prior Board

finding on that communication barred further litigation on it. See Lentz v.

Department of the Interior, MSPB Docket No. SF-1221-15-0688-W-1, Final

Order (June 30, 2022). Regarding disclosure 14, the administrative judge

considered the record evidence and found that the disclosure does not implicate

any of the other categories of disclosures protected by 5 U.S.C. § 2302(b)(8). ID

at 117.

We agree with these findings. The administrative judge correctly found

that, to be protected, a disclosure must be specific and detailed, not a vague

allegation of wrongdoing. Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 14

(2014). Regarding disclosures 2 and 11, the Board has held that, even under the

expanded protections afforded to whistleblowers under the WPEA, general

philosophical or policy disagreements with agency decisions or actions are not

protected unless they separately constitute a protected disclosure of one of the

categories of wrongdoing listed in section 2302(b)(8)(A). Webb v. Department of

the Interior, 122 M.S.P.R. 248, ¶ 8 (2015).

The appellant proved that his protected disclosures were a

contributing factor in the November 13, 2014 notice of proposed

suspension (action 2), February 10, 2015 decision letter (action 3),

and FY2014 performance evaluation (action 10), but did not prove

that his protected disclosures were a contributing factor in the other

alleged retaliatory actions.

The administrative judge accepted the following personnel actions for

adjudication on the merits: (1) on May 15, 2014, the agency issued a letter of

reprimand; (2) on November 13, 2014, the agency issued a notice of proposed

14-day suspension; (3) on February 10, 2015, the agency issued a letter of

decision imposing a 14-day suspension; (4) on May 15, 2014, the agency changed

his working conditions by including a list of expectations in the letter of

reprimand; (5) on November 13, 2014, the agency changed his working

conditions by including a list of expectations in the notice of proposed 14 -day

suspension; (6) on February 10, 2015, the agency changed his working conditions

by including a list of expectations in the letter of decision imposing the 14 -day

suspension; (7) on November 14, 2014, the agency constructively suspended him;

(8) on May 15, 2014, the agency removed his purchase card authority; (9) on

December 8, 2015, the agency provided negative employment references; (10) the

agency reduced his Fiscal Year 2013 (FY2013) and FY2014 performance

evaluations; (11) on July 2014, the agency withdrew permission for him to work

Saturdays; and (12) the agency denied him a fair and objective reevaluation.

0497 AF, Tab 4. The administrative judge found that actions 1-3 and 10 were

covered, but not 4-9, 11, or 12. ID at 118-128. On review, the appellant argues

that actions 4-9 were covered. PFR File, Tab 1 at 17-20. The appellant does not

address actions 11 and 12, and we affirm the administrative judge’s findings on

these actions. In relevant part, the administrative judge properly considered both

the FY2014 performance evaluation (action 10) and reevaluation (action 12)

together. ID at 128.

To meet the second element of his initial burden to show whistleblower

reprisal, the appellant must identify a potentially retaliatory personnel action

under 5 U.S.C. § 2302(a)(2)(A). A “personnel action” is defined as: (i) an

appointment; (ii) a promotion; (iii) an adverse action under 5 U.S.C. chapter 75 or

other disciplinary or corrective action; (iv) a detail, transfer, or reassignment;

(v) a reinstatement; (vi) a restoration; (vii) a reemployment; (viii) a performance

evaluation under 5 U.S.C. chapter 43; (ix) a decision concerning pay, benefits, or

awards, or concerning education or training if the education or training may

reasonably be expected to lead to an appointment, promotion, performance

evaluation, or other personnel action; (x) a decision to order psychiatric testing or

examination; or (xi) the implementation or enforcement of any nondisclosure

policy, form, or agreement; or (xii) any other significant change in duties,

responsibilities, or working conditions. 5 U.S.C. § 2302(a)(2)(A).

Here, the administrative judge properly found that actions 4-6 and 8 did not

fall within the definition of personnel action under 5 U.S.C.

§ 2302(a)(2)(A)(i)-(xi) and further determined that they did not constitute a

“significant change in duties, responsibilities or working conditions” under (xii).

ID at 120-25. Regarding action 7, the administrative judge found that, because

the appellant did not establish a constructive suspension, he did not establish a

personnel action under the WPEA. ID at 123. The administrative judge also

found that action 9 did not fall within the definition of personnel action under

5 U.S.C. § 2302(a)(2)(A)(i)-(xi) and that, even if a negative employment

reference was a personnel action covered by the WPEA as a form of blacklisting,

the references were not negative and did not constitute any kind of blacklisting.

ID at 125. The administrative judge’s findings in this regard are based on a

comprehensive review of the record and application of the Borninkhof factors,

and the appellant has not provided a reason for disturbing them on review. See

Crosby, 74 M.S.P.R. at 106.

Having found that actions 1-3 and 10 were covered personnel actions, the

administrative judge turned to the issue of whether the appellant established that

his protected disclosures were a contributing factor in these personnel actions.

The most common way of proving the contributing factor element is the

‘knowledge/timing test.’” Scoggins v. Department of the Army, 123 M.S.P.R.

592, ¶ 21 (2016). Under the knowledge/timing test an appellant can prove that

his disclosure was a contributing factor in a personnel action through evidence

that the official taking the personnel action knew of the whistleblowing

disclosure and took the personnel action within a period of time such that a

reasonable person could conclude that the disclosure was a contributing factor in

the personnel action. Id. If the appellant does not satisfy the knowledge/timing

test, other evidence will be considered, including 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 those individuals had a desire or motive to retaliate against

the appellant. Stiles v. Department of Homeland Security, 116 M.S.P.R. 263, ¶ 24

(2011).

Here, the administrative judge found that the appellant only established

contributing factor as to actions 2 and 3. ID at 129-135. Specifically, the

administrative judge found that the appellant did not prove contributing factor as

to action 1 (the May 15, 2014 letter of reprimand) because the letter of reprimand

predated the earliest protected disclosure, which was in July 2014. ID at 130; see

Rumsey v. Department of Justice, 120 M.S.P.R. 259, ¶ 27 (2013) (explaining that,

to establish contributing factor, the appellant must show that a protected

disclosure or activity predated the allegedly covered personnel action). The

administrative judge also determined that the appellant did not establish

contributing factor as to action 10 (the agency reduced his FY2013 and FY2014

performance evaluations). ID at 129-135. In relevant part, the administrative

judge noted that the FY2013 performance evaluation predated the appellant’s

earliest disclosure and that the appellant failed to establish contributing factor

regarding the FY2014 performance evaluation through either the

knowledge/timing test or through other evidence relevant to establishing

contributing factor. ID at 130-33. We agree with the administrative judge as to

the FY2013 performance rating. However, as explained below, we find that the

appellant established contributing factor as to the FY2014 performance

evaluation.

The appellant challenges the administrative judge’s findings on personnel

action 10. The appellant argues that, contrary to the initial decision, the agency

official who decided his formal reevaluation request on the FY2014 performance

evaluation had knowledge of disclosures 7 (harassment of two female interns) and

10 (gross negligence concerning management’s use of grant funds). PFR File,

Tab 1 at 15-16. The appellant points to specific relevant evidence in Lentz v.

Department of the Interior, MSPB Docket No. SF-1221-16-0681-W-1, Initial

Appeal File (0681 IAF), which, as explained in the initial decision, was the

original docket number for this IRA appeal. The appellant’s jurisdictional

submission contains his formal reevaluation package, which, as the appellant

states on review, was apparently received by the official who formally denied his

reevaluation request on November 24, 2014. 0681 IAF, Tab 11 at 219. This

package referenced disclosure 7, stating that the appellant’s “reporting of

inappropriate conduct concerning . . . interaction with two female botany interns

that has ultimately led to at least one grievance and/or complaint to be filed

against this agency.” Id. at 228. The appellant also accurately points to evidence

indicating that the official who decided his formal reevaluation request on the

FY2014 performance evaluation was copied on a November 12, 2014 email that

referenced disclosure 10. 0681 IAF, Tab 14 at 57. Thus, we modify the initial

decision to find that the appellant established contributing factor as to the

FY2014 performance evaluation through the knowledge/timing test. See

Scoggins, 123 M.S.P.R. 592, ¶ 21.

The agency failed to prove by clear and convincing evidence that it

would have issued the November 13, 2014 notice of proposed

suspension and February 10, 2015 decision letter in the absence of

the appellant’s protected disclosures, but it carried its burden as to

the FY2014 performance evaluation.

In determining whether the agency proved by clear and convincing

evidence that it would have taken the same actions against the appellant, even

absent any protected disclosures, the Board should consider the following factors:

(1) the strength of the agency’s evidence in support of its action; (2) the existence

and strength of any motive to retaliate on the part of agency officials 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);

Schnell v. Department of the Army, 114 M.S.P.R. 83, ¶ 23 (2010). The Federal

Circuit has stated that “[e]vidence only clearly and convincingly supports a

conclusion when it does so in the aggregate considering all the pertinent evidence

in the record, and despite evidence that fairly detracts from that conclusion.”

Whitmore v. Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012). The

court in Whitmore further stated that “[i]t is error for the [Board] to not evaluate

all the pertinent evidence in determining whether an element of a claim or

defense has been proven adequately.” Id. The Board has held that the proper

analysis of the clear and convincing evidence issue requires that all of the

evidence be weighed together—both the evidence that supports the agency’s case

and the evidence that detracts from it. Shibuya v. Department of Agriculture,

119 M.S.P.R. 537, ¶ 37 (2013) (citing Whitmore, 680 F.3d at 1368).

Here, the administrative judge applied the Carr factors in determining that

the agency failed to prove by clear and convincing evidence that it would have

issued the November 13, 2014 notice of proposed suspension and February 10,

2015 decision letter in the absence of the appellant’s protected disclosures. ID

at 135-47. The appellant asserts on review that the administrative judge did not

evaluate the totality of the evidence in reaching these findings. PFR File, Tab 1

at 21. However, the appellant appears to be referring to his USERRA claim in

making this argument. Id. The agency has not filed a cross petition for review

challenging the administrative judge’s clear and convincing analysis. Under the

circumstances, we discern no basis for disturbing the administrative judge’s

well-reasoned finding that the agency has not carried its burden to prove, by clear

and convincing evidence, that it would have taken these same actions in the

absence of the appellant’s protected disclosures.

However, turning to the FY2014 performance evaluation, we find that the

agency carried its burden of proving that it would have issued this performance

evaluation notwithstanding disclosures 7 and 10. As to Carr factor 1, the

agency’s evidence in support of the FY2014 performance evaluation was strong.

The administrative judge found that both the official that prepared the appellant’s

FY2014 performance evaluation and the official that decided the appellant’s

reevaluation request explained their evaluations in reasonable detail, with

reference to the appellant’s performance plan and specific projects or incidents

supporting the decision. ID at 133. The administrative judge found that the

appraisal was consistent with record evidence, including a sworn statement in the

record expressing concerns regarding the appellant’s performance and an

undisputed description of an incident in which the appellant failed to prepare

timely, appropriate documentation for a public “plant a tree” event the agency

was hosting. Id. The administrative judge found the concerns documented in the

appellant’s FY2014 performance evaluation are based on legitimate management

concerns and are consistent with the record. Id.

Turning to Carr factor 2, the agency official who decided the formal

reevaluation request may have had a broader institutional motive because of the

appellant’s criticism of agency actions. Soto v. Department of Veterans Affairs,

2022 MSPB 6, ¶ 14. However, there is no evidence that the appellant’s

disclosures had any consequences or implications for that agency official.

Regarding the agency official who prepared the FY2014 evaluation, the

administrative judge found that that individual had no knowledge of the

appellant’s disclosures. ID at 135. In fact, the administrative judge found that

the appellant’s protected disclosures were not widely publicized or widely known.

Further, the appellant’s FY2013 performance evaluation, which the appellant also

contested, predated any protected disclosure. Thus, while the record reflects

some degree of retaliatory animus on the part of relevant agency officials, we find

that any such motive was not strong given these circumstances.

Moving to the third Carr factor, there is no relevant information about

potential comparators. Because the agency bears the burden of proof, when it

fails to introduce relevant comparator evidence, the third factor is effectively

removed from consideration, although it cannot weigh in the agency’s favor.

Soto, 2022 MSPB 6, ¶ 18. Weighing all of the evidence together, we find that the

agency met its burden to prove by clear and convincing evidence that it would

have issued the FY2014 performance evaluation absent the appellant’s

disclosures.

Based on the foregoing, we affirm the administrative judge’s decision to

grant the appellant’s request for corrective action as to the November 13, 2014

notice of proposed suspension and its February 10, 2015 letter of decision.

ORDER

We ORDER the agency to rescind the November 13, 2014 Notice of

Proposed 14-Day Suspension and its February 10, 2015 Letter of Decision

Sustaining the 14-Day Suspension and take any actions necessary to expunge

them from the appellant’s official personnel file. See Kerr v. National

Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). We further ORDER the

agency to take appropriate steps to ensure that the employees and managers of the

Redding Field Office and its California State Office of Human Resources receive

the training required by 5 U.S.C. § 2302(c)(2)(C). 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.

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

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 4

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

Board's 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

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:

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.

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. 5 The court of appeals must receive your

petition for 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