Opinion

Robert Conklin v. Department of the Army

Court: Merit Systems Protection Board
Filed: May 14, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 40.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ROBERT CONKLIN, DOCKET NUMBER

Appellant, AT-1221-16-0700-B-1

DEPARTMENT OF THE ARMY, DATE: May 14, 2026

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Adam Jerome Conti , Esquire, Atlanta, Georgia, for the appellant.

Erica Fessler , Esquire, Austin, Texas, 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 remand initial decision,

which denied his request for corrective action in his individual right of action

whistleblower reprisal appeal. On petition for review, the appellant challenges

the administrative judge’s findings regarding the contributing factor element of

his prima facie case and generally argues that the administrative judge took too

narrow of an approach to that element. Generally, we grant petitions such as this

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. Except as expressly

MODIFIED to supplement the administrative judge’s discussion of the

contributing factor element in the appellant’s prima facie case, we AFFIRM the

initial decision.

This appeal is back before the Board on remand and concerns the

appellant’s whistleblower reprisal claim that he was not selected for a Combat

Development Specialist position with the agency’s Training and Doctrine

Command (TRADOC) in 2015 in retaliation for, among other things, filing a

complaint with the Office of Special Counsel (OSC). Conklin v. Department of

the Army, MSPB Docket No. AT-1221-16-0700-W-1, Remand Order (Feb. 23,

2024). In a remand initial decision, the administrative judge correctly found that

the appellant proved by preponderant evidence that he engaged in protected

activity under 5 U.S.C. § 2302(b)(9)(C) when he filed an OSC complaint.

Conklin v. Department of the Army, MSPB Docket No. AT-1221-16-0700-B-1

Remand File (RF), Tab 15, Remand Initial Decision (RID) at 4. He also correctly

found that the appellant failed to establish that the selecting official for the

vacancy at issue had either actual or constructive knowledge of that protected

activity, thereby failing to demonstrate the knowledge/timing test as a part of the

contributing factor analysis. RID at 4-8. The appellant’s arguments on review

do not provide a basis to disturb that finding. 2

While the record remained open on review, the appellant filed a motion for

leave to submit additional evidence, which, he asserts, shows that the selecting

official had actual knowledge of his protected activity. Remand Petition for

Review (RPFR) File, Tab 5. Generally, the Board will not consider evidence

submitted for the first time on review absent a showing that the documents and

the information contained in the documents were unavailable before the record

closed despite due diligence and the evidence is of sufficient weight to warrant an

outcome different from that of the initial decision. Cleaton v. Department of

Justice, 122 M.S.P.R. 296, ¶ 7 (2015). The appellant acknowledges that this

document was available before the record closed below and that he did not submit

it then. RPFR File, Tab 5 at 5. Although he asserts that he was not on notice that

the selecting official’s knowledge of his OSC complaint would be a dispositive

issue, see id., the jurisdictional order issued below informed him of how he could

On review, the appellant points to timeline created by the selecting official on or

around August 11, 2016, more than a year after the 2015 selection. Remand Petition for

Review (RPFR) File, Tab 1 at 9-10. He argues that entries in this timeline demonstrate

that the selecting official had constructive knowledge of the OSC complaint or was

otherwise influenced by another agency official with improper animus. Id. The

administrative judge considered this timeline and the appellant’s corresponding

arguments in the remand initial decision but found that it did not establish that the

agency official with alleged animus against the appellant influenced the selecting

official in any way. RID at 7 n.3. We have reviewed the timeline and the appellant’s

arguments related thereto on review, and we agree with the administrative judge that,

although it reflects that the agency official appears to have had some involvement in the

hiring process prior to the publication of the vacancy announcement, such as reviewing

the position description and making status inquiries, there is no indication that,

following publication of the vacancy announcement, he was involved with or influenced

the selecting official’s hiring decision. RF, Tab 10 at 89-99. We discern no basis to

disturb the administrative judge’s conclusion that the appellant failed to establish

constructive knowledge/cat’s paw theory. See Crosby v. U.S. Postal Service,

74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the administrative judge’s

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

made reasoned conclusions); Broughton v. Department of Health & Human Services,

33 M.S.P.R. 357, 359 (1987) (same).

prove the contributing factor element, including discussion of the

knowledge/timing test. Conklin v. Department of the Army, MSPB Docket No.

AT-1221-16-0700-W-1 Initial Appeal File (IAF), Tab 3 at 4. In any event, the

appellant’s motion provides the contents of the additional evidence. RPFR File,

Tab 5 at 4-5. By his own admission, the additional evidence only purports to

show that the selecting official was included on an email that referenced “OSC

findings,” and it does not include the appellant’s name or other contextual details

potentially identifying the appellant’s OSC complaint. Id. Accordingly, we find

that the proffered evidence is not of sufficient weight to warrant an outcome

different from that of the remand initial decision, and we deny the appellant’s

motion.

After finding that the appellant failed to meet the knowledge/timing test,

the administrative judge found that he failed to prove that the OSC complaint was

a contributing factor to the nonselection. RID at 8. However, the

knowledge/timing test is not the only way for an appellant to satisfy the

contributing factor element. See Dorney v. Department of the Army,

117 M.S.P.R. 480, ¶ 14 (2012). Rather, when an appellant fails to meet this test,

the Board will consider other evidence such as evidence pertaining to the strength

or weakness of the agency’s reason for taking the personnel action, whether the

whistleblowing was personally directed at the proposing or deciding official, and

whether these individuals had a desire or motive to retaliate against the appellant.

Id., ¶ 15. We supplement the remand initial decision to address these factors

here.

Regarding the strength or weakness of the agency’s reason for not selecting

the appellant, the record establishes that, at the time TRADOC was staffing the

position at issue, it was under a hiring freeze, and that it sought and received

special permission to recruit and hire an internal TRADOC candidate for the

position. IAF, Tab 6 at 6, Tab 7 at 24-27. The parties stipulated that a TRADOC

employee was ultimately selected for the position. RF, Tab 12 at 4. Because it is

undisputed that the appellant was a contractor and not a TRADOC employee at

the time, id., he could not have been selected for the position. 3 Additionally, it is

undisputed that the selecting official was not the subject of the appellant’s OSC

complaint, and the record does not otherwise reflect that he had any personal

desire or motive to retaliate against the appellant. We acknowledge that those

responsible for the agency’s performance overall may well be motivated to

retaliate even if they are not directly implicated by the disclosure, as the criticism

reflects on them in their capacities as managers and employees. See Whitmore v.

Department of Labor, 680 F.3d 1353, 1370 (Fed. Cir. 2012). However, the record

is unclear on the issue of whether the selecting official in this matter is a manager

or supervisor, or whether he is otherwise responsible for the agency’s

performance overall. In any event, even assuming a slight potential institutional

motive to retaliate on the part of the selecting official under Whitmore, we find

that the additional considerations do not amount to preponderant evidence that the

appellant’s OSC complaint was a contributing factor in the nonselection at issue.

Accordingly, we ultimately agree with the administrative judge that the appellant

failed to establish the contributing factor element of his prima facie case, and we

affirm the remand initial decision as modified.

The Combat Development Specialist vacancy announcement listed that only TRADOC

employees with competitive status within the local commuting area could apply. IAF,

Tab 7 at 18. The appellant asserts, however, that on the second page of the vacancy

announcement, it also states that other groups of applicants, including but not limited to

those eligible under [the Veterans Employment Opportunities Act (VEOA)], may apply.

RPFR File, Tab 1 at 13; see IAF, Tab 7 at 19. Thus, he claims that he was eligible for

the position “by virtue of his VEOA status.” RPFR File, Tab 1 at 13. He further asserts

that he has a “stellar resume” and has “uniquely strong qualifications for the position.”

Id. at 12. Regardless of whether additional candidates were eligible to apply, including

the appellant, the record nonetheless reflects that the hiring authority was limited to an

internal TRADOC candidate and that an internal TRADOC candidate was selected.

IAF, Tab 6 at 6; RF, Tab 12 at 4.

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