Opinion

Gayle Dickerson-Brown v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Apr 9, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 40.1%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

GAYLE DIANE DICKERSON-BROWN, DOCKET NUMBER

Appellant, DC-1221-24-0777-W-1

DEPARTMENT OF VETERANS DATE: April 9, 2026

AFFAIRS,

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Gayle Diane Dickerson-Brown , Washington, D.C., pro se.

Robert Vega , Esquire, Washington, D.C., for the agency.

Diane Tardiff , Esquire, Bedford, Massachusetts, 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 her individual right of action (IRA) appeal for lack of jurisdiction.

Generally, we grant petitions such as this one only in the following

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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. Except as expressly MODIFIED to find that the appellant’s equal

employment opportunity (EEO) complaints constituted protected activity under

5 U.S.C. § 2302(b)(9)(C), and to address allegations that the appellant raises for

the first time on review, we AFFIRM the initial decision.

BACKGROUND

The appellant is employed by the agency as a GS-13 EEO Specialist.

Initial Appeal File (IAF), Tab 1 at 1. On February 23, 2023, her first-level

supervisor proposed to suspend her for 10 days based on a charge of failure to

follow her supervisor’s instructions. IAF, Tab 6 at 17-20. The charge contained

five specifications of the appellant allegedly failing to follow instructions and

complete work assignments. Id. On May 18, 2023, another individual, who

appears to be the appellant’s second-level supervisor, issued a decision sustaining

the charge and the 10-day suspension. Id. at 15-16.

The appellant filed a complaint with the Office of Special Counsel (OSC)

alleging that because of various protected activities and disclosures, the agency

subjected her to a hostile work environment, lowered her performance ratings for

2022 and 2023, and issued her the May 18, 2023 10-day suspension identified

above. Petition for Review (PFR) File, Tab 1 at 23-26. She alleged that she

made protected disclosures and engaged in protected activity dating back to 2010

by filing EEO complaints and complaints with the agency’s Office of

Accountability and Whistleblower Protection (OAWP), OSC, Congress, and the

White House. Id. at 23. On June 27, 2024, OSC issued a close-out letter, in

which it notified the appellant that it had terminated its investigation of her

whistleblower complaint and informed her that she had a right to file an appeal

with the Board. IAF, Tab 1 at 12.

On July 31, 2024, the appellant filed the instant appeal, alleging that the

agency suspended her and lowered her performance reviews in retaliation for her

protected EEO activity. Id. at 2. The administrative judge issued a jurisdictional

order, notifying the parties of the appellant’s jurisdictional burden and the

relevant legal standards. IAF, Tab 3 at 2-6. The administrative judge ordered the

appellant to submit evidence and argument on the jurisdictional issue. Id. at 8.

The appellant did not respond to the jurisdictional order. The agency submitted a

response arguing that the Board lacks jurisdiction over the appellant’s claims.

IAF, Tab 8.

The administrative judge issued an initial decision dismissing the appeal

for lack of jurisdiction. 2 IAF, Tab 9, Initial Decision (ID) at 1, 5. He found that

the appellant exhausted claims that she made protected disclosures or engaged in

protected activity by filing complaints regarding concerns of harassment and

abuse with OSC, the agency’s OAWP, the White House, and Congress. ID at 3.

As to the EEO activity, the administrative judge concluded that it did not fall

within the scope of the Board’s IRA jurisdiction. ID at 4.

In his initial decision, the administrative judge stated that an appellant who “makes a

nonfrivolous allegation of Board jurisdiction . . . is entitled to a hearing on the

jurisdictional question.” ID at 2. We clarify here that in IRA appeals jurisdiction is

decided on the written record. Graves v. Department of Veterans Affairs, 123 M.S.P.R.

434, ¶ 22 (2016). In an IRA appeal, an appellant is only entitled to a hearing if she

exhausted her administrative remedy with OSC and nonfrivolously alleged that she

engaged in protected activity or made a protected disclosure that was a contributing

factor in a personnel action, and that hearing is on the merits. Id., ¶¶ 12, 22.

Regarding the appellant’s other exhausted claims, the administrative judge

did not make findings as to whether the appellant nonfrivolously alleged that they

were protected disclosures or activities for purposes of an IRA appeal. Instead,

he determined that she had not raised them during the course of her appeal. Id.

The administrative judge alternatively found that because there is no information

in the record as to the dates that the appellant engaged in these alleged protected

activities or made protected disclosures, to whom she made any disclosures, who

was aware of her alleged disclosures or activities, and why she reasonably

believed in the truth of her disclosures, she had not nonfrivolously alleged that

her disclosures or activities were a contributing factor in any personnel action.

ID at 4-5.

The appellant has timely filed a petition for review. PFR File, Tab 1. On

review, she provides additional details regarding her alleged disclosures and

activities, and she submits OSC’s preliminary determination letter for the first

time. Id. at 2, 23-26. She reargues that the agency suspended her for 10 days in

retaliation for protected activity. Id. at 2. In addition to her EEO activity, she

specifically claims reprisal for various activities and disclosures for the first time

on review, including some that were not identified in OSC’s close-out letter

advising the appellant that it was closing its investigation. Id.; IAF, Tab 1 at 2,

12. The agency has not responded to the petition for review.

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 protected disclosure described under 5 U.S.C.

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

§ 2302(b)(9)(A)(i), (B), (C), or (D), and (2) the disclosure or protected activity

was a contributing factor in the agency’s decision to take or fail to take a

personnel action as defined under 5 U.S.C. § 2302(a). Salerno v. Department of

the Interior, 123 M.S.P.R. 230, ¶ 5 (2016).

The appellant has proven by preponderant evidence that she exhausted some, but

not all, of her claims before OSC.

The administrative judge found that OSC’s close-out letter indicated that

the appellant exhausted claims of “retaliation for filing complaints regarding

concerns of harassment and abuse with OSC, [OAWP], the White House, and

Congress.” ID at 3. The appellant does not dispute this finding on review, and

we discern no basis to disturb it. The administrative judge did not address the

question of whether the appellant exhausted her EEO complaints or identify the

alleged personnel actions that the appellant raised with OSC.

The Board’s jurisdiction over an IRA appeal is limited to those issues that

have been previously raised with OSC. 5 U.S.C. § 1214(a)(3); Chambers v.

Department of Homeland Security, 2022 MSPB 8, ¶ 10 (citations and internal

quotations omitted). An appellant who does not submit her OSC complaint to the

Board may demonstrate exhaustion through, as relevant here, her correspondence

with OSC. Chambers, 2022 MSPB 8, ¶ 11. An appellant must prove exhaustion

by preponderant evidence. Cooper v. Department of Veterans Affairs,

2023 MSPB 24, ¶ 5; 5 C.F.R. § 1201.57(c)(1).

On review, the appellant has proven by preponderant evidence that she

exhausted her allegation that she engaged in protected activity when she filed

various EEO complaints with the agency. PFR File, Tab 1 at 23-24. For the first

time on review, the appellant provides OSC’s preliminary determination letter.

Id. at 23-26. We have considered this document because it implicates the Board’s

jurisdiction over this appeal. Schoenig v. Department of Justice, 120 M.S.P.R.

318, ¶ 7 (2013) (holding that the Board may consider evidence submitted for the

first time on petition for review if it implicates the Board’s jurisdiction and

warrants an outcome different from that in the initial decision). In its preliminary

determination letter, OSC stated that the appellant “alleged retaliation for filing

an Equal Employment Opportunity (EEO) complaint.” PFR File, Tab 1 at 23.

Based on this letter, we find that the appellant proved that she exhausted with

OSC her alleged protected activity of filing EEO complaints.

For the first time on review, the appellant raises new allegations of

protected disclosures and activities that she has not shown she exhausted before

OSC. She alleges that she made disclosures to the Administrative Investigative

Board (AIB), and that one of her supervisors was terminated based on the

findings of an investigation stemming from this disclosure. Id. at 2. However,

this purported disclosure to the AIB is not described in any of OSC’s

correspondence with the appellant. Id. at 20-26. Accordingly, we find that the

appellant did not prove by preponderant evidence that she exhausted her AIB

participation. Additionally, she identifies her participation as a witness in

another individual’s EEO case and her request for reasonable accommodation as

protected activity for which she suffered unlawful retaliation. Id. at 2. As with

the purported AIB disclosure discussed above, the appellant’s allegation that she

requested accommodation or served as a witness in another individual’s EEO case

does not appear anywhere in OSC’s correspondence with the appellant. Id.

at 20-26. We therefore find that the appellant did not exhaust these purported

protected activities.

Because the administrative judge did not reach the question of which, if

any, personnel actions the appellant exhausted with OSC, we do so now. In its

preliminary determination letter, OSC described various personnel actions that

the appellant alleged were taken in retaliation for her protected disclosures and

activities. Id. at 24-25. The personnel actions listed were lowered performance

ratings for 2022 and 2023, the 10-day suspension, and being subjected to a hostile

work environment. 3 Id. We therefore find that the appellant exhausted these

alleged personnel actions.

The appellant has nonfrivolously alleged that she engaged in protected activity by

filing EEO, OAWP, and OSC complaints.

We next consider whether the appellant has nonfrivolously alleged that she

made a protected disclosure or engaged in protected activity. See Chambers,

2022 MSPB 8, ¶ 14. A nonfrivolous allegation requires “sufficient factual matter,

accepted as true, to state a claim that is plausible on its face.” Hessami v. Merit

Systems Protection Board, 979 F.3d 1362, 1364, 1369 (Fed. Cir. 2020); see

5 C.F.R. § 1201.4(s) (defining a nonfrivolous allegation as an assertion that is

plausible on its face and that, if proven, could establish the matter at issue).

Pursuant to 5 U.S.C. § 2302(b)(9)(C), it is a prohibited personnel practice to take

a personnel action against an employee in reprisal for “cooperating with or

disclosing information to the Inspector General (or any other component

responsible for internal investigation or review) of an agency, or the Special

Counsel, in accordance with applicable provisions of law.” Holman v.

Department of the Army, 2025 MSPB 2, ¶ 12.

The appellant has nonfrivolously alleged that her EEO complaint

was protected activity under 5 U.S.C. § 2302(b)(9)(C).

On review, the appellant reargues that she suffered unlawful retaliation

after she filed various EEO complaints. PFR File, Tab 1 at 2. In his initial

decision, which was issued prior to the Board’s decisions in Holman, 2025 MSPB

2, and Reese v. Department of the Navy, 2025 MSPB 1, the administrative judge

held that filing an EEO complaint generally is not protected activity for the

purpose of establishing Board jurisdiction over an IRA appeal. ID at 4. In Reese,

2025 MSPB 1, ¶¶ 44-52, the Board held that disclosures concerning alleged

Although we find that the appellant exhausted her allegation that the agency subjected

her to a hostile work environment, she did not raise this allegation below and has not

raised it on review. As such, we have not analyzed it further.

violations of Title VII may constitute protected activity under 5 U.S.C.

§ 2302(b)(9)(C) if made to a covered entity. In Holman, 2025 MSPB 2, ¶¶ 12-13,

the Board recognized for the first time that communications with an agency’s

EEO office, whether formal or informal, constitute protected activity within the

definition 5 U.S.C. § 2302(b)(9)(C).

While the appellant’s EEO complaints are not in the record, on her initial

appeal form, she alleged that she filed a complaint with the agency’s EEO office

alleging that she was being sexually harassed by two of her supervisors. IAF,

Tab 1 at 2. Cooperating or disclosing information under 5 U.S.C.

§ 2302(b)(9)(C) is protected regardless of content as long as it is “in accordance

with the applicable provisions of law.” Reese, 2025 MSPB 1, ¶ 45. Therefore,

we modify the initial decision to find that the appellant nonfrivolously alleged

that she engaged in protected activity when she filed a complaint with the

agency’s EEO office regarding a violation of Title VII. The appellant has alleged

on review that she filed EEO complaints between 2007 and 2017, and in 2024.

We further modify the initial decision to find that the appellant has

nonfrivolously alleged that these complaints constituted protected activity.

The appellant has nonfrivolously alleged that her OAWP complaint

was protected activity under 5 U.S.C. § 2302(b)(9)(C).

The administrative judge acknowledged that the appellant may have raised

with OSC claims of reprisal for engaging in other protected activity but

concluded that she did not raise those claims during the course of the proceedings

below, with the exception of her alleged EEO activity, discussed above. ID at 4;

IAF, Tab 1 at 2. On review, the appellant asserts for the first time that she faced

retaliation for filing a complaint with the agency’s OAWP in October 2021. PFR

File, Tab 1 at 2. Correspondence from OSC describes this complaint as alleging

“concerns of harassment and abuse.” Id. at 23; IAF, Tab 1 at 2. Because this

issue is jurisdictional, we consider it here.

On review, the appellant alleges that her OAWP activity “implicated

actions of [her] immediate supervisor and second[-]level supervisor.” PFR File,

Tab 1 at 2. The OAWP is responsible for, among other things, “[r]eceiving,

reviewing, and investigating allegations of misconduct, retaliation, or poor

performance involving . . . a supervisory employee, if the allegation involves

retaliation against an employee for making a whistleblower disclosure.”

38 U.S.C. § 323(c)(1)(H); see Semenov v. Department of Veterans Affairs,

2023 MSPB 16, ¶ 36 (recognizing that the OAWP is charged with various duties

related to the protection of whistleblowers). Therefore, the agency’s OAWP is a

component responsible for internal investigation or review. We modify the initial

decision to find that the appellant nonfrivolously alleged that she engaged in

protected activity when she filed a complaint with the OAWP in 2021.

The appellant has nonfrivolously alleged that she engaged in

protected activity under 5 U.S.C. § 2302(b)(9)(C) by filing

complaints with OSC.

The appellant states on review that she suffered unlawful retaliation for

filing two complaints with OSC, one in 2010 and the other in 2023. PFR File,

Tab 1 at 2. The appellant did not raise this claim below, and the administrative

judge therefore did not address it. ID at 4; IAF, Tab 1 at 2. Although the

appellant does not specify the contents of either OSC complaint on review, a

complaint to OSC is a protected activity under 5 U.S.C. § 2302(b)(9)(C),

regardless of content. Pridgen v. Office of Management and Budget, 2022 MSPB

31, ¶¶ 61-62. Thus, we modify the initial decision to find that the appellant

nonfrivolously alleged that she engaged in protected activity by filing OSC

complaints.

The appellant has not nonfrivolously alleged that her disclosures to

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

On review, the appellant also alleges for the first time that she suffered

unlawful retaliation for making disclosures to Congress in September 2022 and

August 2024, protected under 5 U.S.C. § 2302(b)(8)(C). PFR File, Tab 1 at 2.

Although she raised this claim to OSC, she did not raise it below. IAF, Tab 1

at 2; PFR File, Tab 1 at 23-25. Because she did not raise the issue below, the

administrative judge did not address it. ID at 4. Therefore, we do so here.

Congress amended 5 U.S.C. § 2302(b)(8) with the National Defense

Authorization Act for Fiscal Year 2020, Pub. L. No. 116-92, § 5721, 133 Stat.

1198, 2175 (2019) (codified at 5 U.S.C. §2302(b)(8)(C)), by prohibiting reprisal

for disclosures to Congress. A disclosure to Congress is protected under 5 U.S.C.

§ 2302(b)(8)(C), if the individual making the disclosure “reasonably believes [it]

evidences . . . any violation of any law, rule, or regulation,” or “gross

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

and specific danger to public health or safety.” 5 U.S.C. § 2302(b)(8)(B)-(C).

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 one

of the identified categories of wrongdoing. Gabel v. Department of Veterans

Affairs, 2023 MSPB 4, ¶ 6. The disclosures must be specific and detailed, not

vague allegations of wrongdoing. Id. The appellant does not identify the

contents of either disclosure to Congress. PFR File, Tab 1 at 2, 23-24.

Therefore, she has not nonfrivolously alleged that she reasonably believed that

she disclosed a protected category of wrongdoing, and she has not met her

jurisdictional burden as to her alleged disclosures to Congress. We modify the

initial decision to so find.

The appellant has not nonfrivolously alleged that her disclosure to

the White House was a protected disclosure under 5 U.S.C.

§ 2302(b)(8).

The administrative judge found that the appellant did not nonfrivolously

allege that she made a protected disclosure to the White House. ID at 3-4. The

appellant does not reraise this issue on review, and we decline to disturb it.

The appellant has not made a nonfrivolous allegation that her alleged protected

activity was a contributing factor in a personnel action.

We now consider whether the appellant has nonfrivolously alleged that her

protected activity was a contributing factor in a personnel action. See Chambers,

2022 MSPB 8, ¶ 14. The administrative judge determined that even if the

appellant nonfrivolously alleged that she made a protected disclosure or engaged

in protected activity, she did not nonfrivolously allege that any such disclosure or

activity was a contributing factor in a personnel action. ID at 4-5. 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 or activity was one factor that tended to affect the personnel action in

any way. Chambers, 2022 MSPB 8, ¶ 14.

One way to establish this factor is the knowledge-timing test, under which

an employee may nonfrivolously allege that the disclosure or activity was a

contributing factor in a personnel action through circumstantial evidence, such as

evidence that the official taking the personnel action knew of the disclosure or

activity and that the personnel action occurred within a period of time such that a

reasonable person could conclude that the disclosure or activity was a

contributing factor in the personnel action. Abernathy v. Department of the Army,

2022 MSPB 37, ¶ 15; Pridgen, 2022 MSPB 31, ¶ 63. However, the

knowledge-timing test is not the only way for an appellant to establish the

contributing factor criterion. Dorney v. Department of the Army, 117 M.S.P.R.

480, ¶ 14 (2012). If an administrative judge determines that the appellant has

failed to satisfy the knowledge-timing test, he should consider other evidence,

such as (1) evidence pertaining to the strength or weakness of the agency’s

reasons for taking the personnel action; (2) whether the whistleblowing was

personally directed at the proposing or deciding officials; and (3) whether these

individuals had a desire or motive to retaliate against the appellant. Id., ¶ 15.

Any weight given to the whistleblowing, either alone or in combination with

other factors, can satisfy the contributing factor standard. Id.

The appellant has not nonfrivolously alleged that her EEO complaint

was a contributing factor in a personnel action.

Below and on review, the appellant stated that she filed EEO complaints

alleging that her first- and second-level supervisors sexually harassed her. IAF,

Tab 1 at 2; PFR File, Tab 1 at 2. She alleged below that both supervisors were

“aware of [the appellant’s] EEO protected activity for many years before [she was

suspended for 10 days].” IAF Tab 1 at 2. She also states on review that her

first-level supervisor filed an affidavit during the EEO investigation into the

appellant’s 10-day suspension. PFR File, Tab 1 at 2. Therefore, she has

nonfrivolously alleged that her first-level supervisor had actual knowledge of her

EEO complaint regarding her May 18, 2023 suspension.

The appellant, however, has not nonfrivolously alleged the timing element

of the knowledge-timing test. On review, the appellant alleges that she filed

various EEO complaints between 2007 and 2017, and again in 2023 and 2024.

PFR File, Tab 1 at 2; IAF, Tab 6 at 10. 4 The Board has held that personnel

actions occurring within 1 to 2 years after the protected disclosures or activities

are sufficient to meet the timing portion of the test, but those that take place more

We have considered the agency’s statement regarding the appellant’s EEO complaints

to the extent that it may assist the appellant in meeting her jurisdictional burden. See

Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994) (explaining that in

determining whether the appellant has made a nonfrivolous allegation of jurisdiction

entitling him to a hearing, an administrative judge may consider an agency’s

documentary submissions).

than 2 years after the disclosure or activity are too remote to satisfy this test.

Pridgen, 2022 MSPB 31, ¶ 63.

The complaints filed between 2007 and 2017 are too remote to satisfy the

knowledge-timing test, and the appellant does not otherwise allege facts

suggesting that they were a contributing factor in any of the exhausted personnel

actions. Further, an activity that occurs after the personnel action at issue was

taken cannot be considered a contributing factor in that personnel action.

Sherman v. Department of Homeland Security, 122 M.S.P.R. 644, ¶ 8 (2015).

Therefore, the appellant has not nonfrivolously alleged that her 10-day

suspension and her 2022 performance appraisal were the result of her 2023 EEO

complaint regarding her 10-day suspension. For the same reason, she has failed

to nonfrivolously allege that her 2024 EEO complaint was a contributing factor in

any of the alleged personnel actions under consideration here.

We have considered whether the appellant has alleged, or the record

otherwise contains sufficient information to infer, that the appellant’s EEO

complaint of her May 2023 10-day suspension could have been a contributing

factor in her lowered 2023 performance rating. IAF, Tab 1 at 2; PFR File, Tab 1

at 2, 23-24. However, we find specific allegations and information lacking.

The appellant has not specified when she filed her EEO complaint, her

supervisor learned of her EEO activity, or she received her 2023 performance

rating. PFR File, Tab 1 at 2, 23-24. Any doubt or ambiguity as to whether the

appellant made nonfrivolous jurisdictional allegations should be resolved in favor

of finding jurisdiction. Skarada v. Department of Veterans Affairs, 2022 MSPB

17, ¶ 6. Construing the appellant’s pleadings liberally, we infer that she is

alleging that she initiated contact with an agency EEO counselor close to the time

she received her May 2023 suspension decision. Baker v. Social Security

Administration, 2022 MSPB 27, ¶ 21 (holding that the Board will construe pro se

pleadings liberally). We observe that the appellant attended a mid-year

performance review meeting at the end of April 2022. IAF, Tab 6 at 45. Based

on that schedule, it appears likely that she did not receive her year-end review for

2023 until late October 2023, approximately 5 months after she received the

decision on her 10-day suspension. An agency generally has 30 days to process

an informal EEO complaint, an appellant has 15 days after the agency has done so

to file her formal complaint, and the agency has 180 days to investigate the

appellant’s formal EEO complaint once she files it. See 29 C.F.R.

§§ 1614.105(a)(1), (d), 1614.106(b), (e)(2) (setting forth the 45-day time limit for

an employee to initiate EEO counseling, 30-day time limit for the agency to

conduct counseling, 15-day time limit to file a formal complaint, and 180-day

time limit for the agency to conduct its investigation into the complaint). We

cannot speculate when in this processing period, which could have lasted over

7 months, the appellant’s supervisor might have been asked to submit an EEO

affidavit, thus learning of the appellant’s EEO activity. Jones v. Department of

the Treasury, 99 M.S.P.R. 479, ¶ 8 (2005) (explaining that an appellant’s

unsubstantiated speculation that an agency official might have known of her

whistleblowing activity did not satisfy the nonfrivolous threshold for establishing

the contributing factor requirement necessary for jurisdiction over an IRA

appeal).

We also find that the appellant has not nonfrivolously alleged that her 2023

EEO complaint was a contributing factor in her lowered 2023 performance rating

applying the factors in Dorney, 117 M.S.P.R. 480, ¶ 15. The record does not

contain evidence pertaining to the appellant’s 2023 performance rating; therefore,

we are unable to analyze the strength or weakness of the agency’s decision. The

appellant alleged that her EEO activity contained accusations implicating her

first- and second-level supervisors. IAF, Tab 1 at 2; PFR File, Tab 1 at 2. We

assume that one or both officials was involved in the appellant’s 2023

performance rating. Therefore, the appellant’s EEO activity was arguably

personally directed at the officials who lowered her performance rating. Dorney,

117 M.S.P.R. 480, ¶ 15. However, absent a nonfrivolous allegation that these

officials had knowledge of the appellant’s EEO activity, we cannot assume they

had a motive to retaliate. Accordingly, the appellant’s allegations fall short of

alleging that any weight was given to her EEO activity, and she has not

nonfrivolously alleged contributing factor.

The appellant has not nonfrivolously alleged that her OAWP

complaint was a contributing factor in a personnel action.

The appellant has not alleged that her first- or second-level supervisors—or

anyone else involved in her May 2023 10-day suspension or 2022 and 2023

performance appraisals—were aware of or influenced by anyone who was aware

of her 2021 OAWP complaint. IAF, Tab 1 at 2; PFR File, Tab 1 at 2. We

therefore find that the appellant has not satisfied the knowledge-timing test with

respect to this complaint. Further, because she provides no specific information

about her 2022 and 2023 performance appraisals, we have no basis to review the

strength or weakness of those actions. We also cannot presume that the

individuals involved in the appellant’s appraisals had a motive to retaliate given

that she does not allege that they were aware of her 2021 OAWP complaint.

We turn now to the May 2023 10-day suspension. The appellant submitted

a copy of the proposed suspension and the suspension decision. IAF Tab 1

at 6-11. In support of the charge of failure to follow supervisor’s instructions, the

appellant’s first-level supervisor listed repeated instructions to the appellant

between November 1, 2021, and February 15, 2023, to complete a standard

operating procedure and policy, conduct workforce reviews, and review and

prepare other reports, and stated that the appellant did not complete these tasks.

Id. at 8-10. The appellant did not respond to the proposal, and her second-level

supervisor determined that the penalty was justified, citing a prior reprimand for,

among other matters, failure to follow supervisory instructions. Id. at 6-7.

The appellant alleged below that her first-level supervisor gave differing

explanations for the suspension, namely, that it was based on the appellant’s

“work” and her “conduct.” IAF, Tab 1 at 2. The appellant also asserted that her

first-level supervisor stated that she was attempting to work with the appellant

but that Human Resources and Employee Relations wished to “fire[]” the

appellant, and that her first-level supervisor “acted as if they ([the first- and

second-level supervisors]) were being forced” to suspend her. Id.

None of these contentions, even if true, cast doubt on the agency’s stated

reasoning for suspending the appellant. The appellant’s failure to complete

assigned tasks could be viewed as based on both “work” and “conduct.” Also, the

assertion that unidentified individuals targeted the appellant and influenced her

supervisors lacks factual allegations that would suggest that those individuals had

knowledge of, or targeted her because of, her OAWP complaint. And without

such knowledge, we cannot impute any retaliatory motive to the appellant’s

supervisors or other unnamed individuals allegedly involved in the appellant’s

suspension. Therefore, the appellant has not met her jurisdictional burden as to

the contributing factor criterion. In conclusion, we find that the appellant has

failed to nonfrivolously allege that her OAWP complaint was a contributing

factor in her 10-day suspension or her 2022 and 2023 lowered performance

ratings.

The appellant has not nonfrivolously alleged that her OSC

complaints were a contributing factor in a personnel action.

The appellant has not claimed that anyone at the agency, much less anyone

involved in the personnel actions she raises in this appeal, was aware of her OSC

complaints. The OSC complaint that the appellant allegedly filed in 2010 is not

close enough in time to any of the appellant’s exhausted personnel actions to have

been a contributing factor in their implementation under the knowledge -timing

test. See Pridgen, 2022 MSPB 31, ¶ 63. Similarly, for the reasons stated above

regarding the appellant’s EEO and OAWP activity, the appellant has not

nonfrivolously alleged contributing factor considering the Dorney factors. As

explained above, based on the evidence provided by the appellant with her initial

appeal form, the agency’s basis for imposing the 10-day suspension seems well

supported, and the appellant has not made any specific allegations attacking the

validity of her 2022 and 2023 performance appraisals. IAF, Tab 1 at 6-11.

The appellant’s 2023 OSC complaint could conceivably be a contributing

factor in either her 10-day suspension or her 2023 performance rating. However,

the appellant did not nonfrivolously allege that she filed this OSC complaint

before her 10-day suspension was proposed in February 2023 or decided in

May 2023, or before her 2023 performance rating was issued. PFR File, Tab 1

at 2. Because the appellant did not provide sufficient information that, if true,

would establish that her 2023 OSC complaint was filed before any personnel

action was taken, we cannot find that she nonfrivolously alleged that the

complaint was a contributing factor in them. Sherman, 122 M.S.P.R. 644, ¶ 8

(2015).

NOTICE OF APPEAL RIGHTS 5

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.

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.

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

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

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

should contact that forum for more information.

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

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

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

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

§ 7703(b)(1)(A).

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

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

address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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

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

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

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

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

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

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

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

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

any attorney will accept representation in a given case.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

§ 2000e-5(f) and 29 U.S.C. § 794a.

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

websites, which can be accessed through the link below:

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

Alternatively, you may request review by the Equal Employment

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

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

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

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

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

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

this decision.

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

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

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

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

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

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

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

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

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

disposition of allegations of a prohibited personnel practice described in

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

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 6 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).

The original statutory provision that provided for judicial review of certain

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

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

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

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.

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