The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BENJAMIN A. NEVAREZ, DOCKET NUMBER
Appellant, DE-1221-13-0166-W-2
v.
DEPARTMENT OF THE ARMY, DATE: September 29, 2014
Agency.
THIS ORDER IS NONPRECEDENTIAL *
Benjamin A. Nevarez, Las Cruces, New Mexico, pro se.
Richard F. Luxemburg, Esquire, and Office of the Staff Judge Advocate,
White Sands Missile Range, New Mexico, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied the appellant’s request for corrective action. For the reasons discussed
below, we GRANT the appellant’s petition for review, VACATE the initial
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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decision, and REMAND the case to the regional office for further adjudication in
accordance with this Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 In this individual right of action appeal, the appellant alleged that the
agency took multiple personnel actions in retaliation for his alleged protected
whistleblowing disclosures. Nevarez v. Department of the Army, MSPB Docket
No. DE-1221-13-0166-W-1 (W-1 File), Tab 1. The appeal was dismissed without
prejudice and refiled once in accordance with the administrative judge’s
instructions. W-1 File, Tab 9; Nevarez v. Department of the Army, MSPB Docket
No. DE-1221-13-0166-W-2 (W-2 File), Tab 1. After holding a hearing, the
administrative judge denied the appellant’s request for corrective action, finding
that the appellant failed to establish that he made a protected whistleblowing
disclosure because “a reasonable person in the appellant’s position would not
believe that giving him an option of taking leave instead of being marked AWOL
[absent without leave] was forcing him to take leave.” W-2 File, Tab 28, Initial
Decision (ID) at 9-10.
¶3 In his timely-filed petition for review, the appellant challenges some of the
administrative judge’s factual determinations, as well as the ultimate conclusion
that he failed to establish that he engaged in whistleblowing activity by making a
protected disclosure. Petition for Review (PFR) File, Tab 1 at 1-3. The agency
responds in opposition. PFR File, Tab 4. The appellant includes numerous
documents with his petition for review, some of which were submitted in the
appeal below, and others which clearly are dated after the close of the record.
PFR File, Tab 1 at 6-33. Under 5 C.F.R. § 1201.115, the Board will not consider
evidence submitted for the first time with the petition for review absent a showing
that it was unavailable before the record was closed despite the party’s due
diligence. The appellant makes no such showing. Nevertheless, for the following
reasons, we must remand the appeal to the field office for further adjudication.
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¶4 Although we agree with the administrative judge that, under the
circumstances presented, the appellant could not have reasonably believed that
the agency’s instructions for him to choose either compensatory time or AWOL to
cover the 2 hours of missed time at issue in this appeal violated the prohibition
against requiring an employee to take compensatory time or any other leave in the
absence of that employee’s request to do so, ID at 9-10, the appellant did not
limit his disclosure to his own situation. The Office of Special Counsel’s (OSC)
November 27, 2012 letter to the appellant regarding his complaint makes clear
that his disclosure also concerned his subordinates as well. W-2 File, Tab 6
at 60. The appellant asserted this in his prehearing submission, W-2 File, Tab 18
at 4-5, and the administrative judge acknowledged it in the prehearing conference
summary, W-2 File, Tab 25 at 3.
¶5 We also agree with the administrative judge that the agency’s subsequent
decision to grant the appellant’s subordinates 2 hours of administrative leave, but
to deny the same to the appellant, was a reasonable solution to the problem
caused by the appellant’s unreasonable interpretation of his supervisor’s
instructions for the appellant’s group to leave the exercise area and his apparent
condonation of them leaving 2 hours before the end of their shift. ID at 9.
Nevertheless, it appears that the appellant’s disclosure to his managers of his
belief that forcing his subordinates to take compensatory time would violate
Office of Personnel Management regulations was not only reasonable but,
considering the chronology, may have even prompted that solution. Thus, we
vacate the initial decision and find that the appellant made a protected disclosure.
¶6 Because he found that the appellant failed to make a protected disclosure,
the administrative judge did not analyze the issue of contributing factor, nor did
he assess whether the agency established by clear and convincing evidence
whether the agency would have taken the same action in the absence of the
appellant’s protected whistleblowing activity. Nevertheless, regarding the
contributing factor issue, the record reflects that the personnel actions for which
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the administrative judge found that the appellant had exhausted his administrative
remedies before OSC, W-2 File, Tab 25 at 4, occurred in such temporal proximity
to the appellant’s protected disclosures as to satisfy the knowledge/timing test for
contributing factor, see, e.g., Mudd v. Department of Veterans Affairs,
120 M.S.P.R. 365, ¶ 10 (2013) (personnel actions within 1 year of the time that an
employee engaged in a protected activity satisfied the timing prong of the
knowledge-timing test); see also Ormond v. Department of Justice, 118 M.S.P.R.
337, ¶ 13 (2012) (same, 6 months).
¶7 On the issue of whether the agency would have taken the same action in the
absence of the appellant’s protected activity, the record is not so clear. The
proper adjudication of the issue may involve further factual determinations and
will require credibility determinations that the administrative judge, who has held
a hearing and personally observed the relevant testimony, is in the best position
to make. See, e.g., Agoranos v. Department of Justice, 119 M.S.P.R. 498, ¶ 32
(2013) (citing Taylor v. Department of Homeland Security, 107 M.S.P.R. 306,
¶ 13 (2007)). Upon remand, to determine whether the agency proved by clear and
convincing evidence that it would have taken the same personnel actions against
the appellant absent his protected disclosure, the administrative judge must
consider the following three 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
are otherwise similarly situated. See Carr v. Social Security Administration,
185 F.3d 1318, 1323 (Fed. Cir. 1999). Moreover, evidence only clearly and
convincingly supports a conclusion when it does so in the aggregate considering
all the pertinent evidence in the record and despite the evidence that fairly
detracts from that conclusion. Whitmore v. Department of Labor, 680 F.3d 1353,
1368 (Fed. Cir. 2012).
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ORDER
For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.