The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THASHA A. BOYD, DOCKET NUMBER
Appellant, AT-1221-13-3375-W-1
v.
DEPARTMENT OF HOMELAND DATE: November 24, 2014
SECURITY,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Thasha A. Boyd, Kennesaw, Georgia, pro se.
Beverly R. Brooks, Washington, D.C., 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
dismissed her individual right of action (IRA) appeal of her nonselection for lack
of jurisdiction. For the reasons discussed below, we GRANT the appellant’s
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board's case law. See 5 C.F.R. § 1201.117(c).
2
petition for review and REMAND the case to the regional office for further
adjudication in accordance with this Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 In August 2012, the appellant applied for a vacancy with the Department of
Homeland Security (DHS). See Initial Appeal File (IAF), Tab 1 at 5, Tab 4
at 12-17. DHS responded with a letter indicating that she was tentatively selected
for the position in October 2012. IAF, Tab 4 at 20-21. The letter specified that
her selection could not be confirmed until her pre-employment checks were
completed. Id. at 20. DHS instructed the appellant to complete the applicable
security forms, and informed her that, although she was a prior federal employee
with the Department of Labor (DOL), she might be subject to a new background
investigation. Id.; IAF, Tab 1 at 5. In February 2013, DHS notified the appellant
that an Office of Personnel Management (OPM) background investigation was
closed. IAF, Tab 6 at 38. As part of that investigation, the appellant had
revealed that DOL had issued her a 10-day suspension in April 2011. Id.
Therefore, DHS requested that the appellant provide a copy of the corresponding
proposal and decision letters issued by DOL. Id.
¶3 DHS rescinded its tentative selection of the appellant for its vacancy in
April 2013. IAF, Tab 4 at 24. At that time, DHS indicated that while there was
an immediate need to fill the position in order to meet mission requirements, the
agency was unable to determine how long it would take to complete its
investigation of the appellant’s background. Id. Subsequently, the appellant filed
an IRA appeal 2 with the Board, alleging that the rescission was the result of
2
In addition to DHS, the appeal named OPM and DOL as parties. IAF, Tab 1 at 4. The
appeal was split into three distinct cases against DHS, OPM, and DOL. See IAF (claim
against DHS); Boyd v. Office of Personnel Management, MSPB Docket No.
AT-0731-13-7162-I-1 (claim against OPM); Boyd v. Department of Labor, MSPB
Docket No. AT-3443-13-7178-I-1 (claim against DOL). The Board adjudicated them
separately from this IRA appeal.
3
whistleblower disclosures she made in May 2010 and April 2011, while employed
at DOL. 3 IAF, Tab 1 at 9-10.
¶4 Following the appellant’s appeal of DHS’s nonselection, the administrative
judge ordered the appellant to submit argument and evidence constituting a
nonfrivolous allegation falling within the Board’s jurisdiction. IAF, Tab 5. The
appellant submitted a response. IAF, Tab 6. Nevertheless, without holding a
hearing, the administrative judge dismissed the case for lack of jurisdiction. IAF,
Tab 12, Initial Decision (ID). The appellant has filed a petition for review, to
which the agency has responded. Petition for Review (PFR) File, Tabs 1, 3.
¶5 Generally, in order to establish jurisdiction over an IRA appeal, an
appellant must prove that she exhausted her administrative remedies before the
Office of Special Counsel (OSC) 4 and make nonfrivolous allegations that (1) she
engaged in whistleblowing activity by making a protected disclosure
under 5 U.S.C. § 2302(b)(8), and (2) the disclosure was a contributing factor in
the agency’s decision to take or fail to take a personnel action as defined
by 5 U.S.C. § 2302(a). King v. Department of Army, 116 M.S.P.R. 689, ¶ 6
(2011). For the first element, engaging in whistleblowing activity by making a
protected disclosure, the Board has found that an individual who is perceived as a
3
The appellant resigned from her DOL position in April 2012. In three prior Board
appeals, she alleged that DOL constructively removed her and engaged in whistleblower
retaliation. The Board dismissed the constructive removal appeal. Boyd v. Department
of Labor, MSPB Docket No. AT-0752-12-0513-I-1, Final Order at 3-8 (Sept. 17, 2013).
The Board reviewed her whistleblower retaliation claims, found that she failed to meet
her burden of proof as to one and dismissed the other based upon judicial efficiency.
Boyd v. Department of Labor, MSPB Docket Nos. AT-1221-12-0456- W-1 &
AT-1221-12-0665-W-1, Final Order at 4, 7-11 (Sept. 17, 2013). The U.S. Court of
Appeals for the Federal Circuit affirmed those decisions. Boyd v. Department of Labor,
561 F. App’x 973 (Fed. Cir. 2014) (Table); Boyd v. Department of Labor, 561 F. App’x
978 (Fed. Cir. 2014) (Table).
4
The administrative judge determined that the appellant had exhausted her
administrative remedies with OSC prior to filing her appeal with the Board. ID at 5;
see IAF, Tab 1 at 13-15 (OSC letters closing the appellant’s complaint).
4
whistleblower is still entitled to the protections of the Whistleblower Protection
Act (WPA), even if she has not made protected disclosures. 5 Id.
¶6 In finding that the appellant failed to allege a nonfrivolous allegation that
she made a protected disclosure or that DHS perceived her as a whistleblower, the
administrative judge erred. See ID at 6. The appellant’s appeal of DHS’s
nonselection in the instant case referenced her prior whistleblower appeals. IAF,
Tab 1 at 5 n.3. In those prior appeals, the Board confirmed that she made
protected disclosures. 6 See Boyd, 120 M.S.P.R. 65 (2013) (Table), Docket Nos.
AT-1221-12-0456-W-1 & AT-1221-12-0665-W-1, Final Order at 7. In addition,
her response to the administrative judge’s show cause order included a letter from
the appellant to DHS. IAF, Tab 6 at 43-47. The letter is dated October 31, 2012,
which falls after DHS’s tentative offer but before DHS’s rescission of that offer.
Id. The letter described several legal actions involving the appellant, including a
libel and slander suit reportedly stemming from harassment at DOL because she
had reported incidents of fraud, waste, and abuse. Id. at 45. The administrative
judge’s decision failed to address the Board’s prior determination that the
appellant made protected disclosures and it failed to address the October 31, 2012
letter and whether it could have caused DHS to perceive the appellant as
a whistleblower.
¶7 As to the second jurisdictional element, whether the disclosure was a
contributing factor in the agency’s decision to take or fail to take a personnel
action, the administrative judge also erred. His decision concluded that the Board
5
The Whistleblower Protection Enhancement Act of 2012 (WPEA), which amended the
WPA, became effective on December 27, 2012, before the appeal was filed in this case.
We find that the changes enacted by the WPEA do not affect the outcome of this appeal.
6
The protected disclosures were letters that were sent to the Government
Accountability Office, requesting an investigation into the operations of the Office of
Foreign Labor Certification as it related to a lack of production standards, frequent
breaks, pay inequality, questionable hiring practices, misuse of government equipment,
and poor training programs. Boyd, MSPB Docket Nos. AT-1221-12-0456-W-1 &
AT-1221-12-0665-W-1, Final Order at 3 n.4.
5
lacks jurisdiction over any concerns the appellant had regarding DHS’s handling
of a security clearance. ID at 6. However, in its response to the show cause
order, DHS explicitly argued that it rescinded its tentative job offer without
making any determination on the appellant’s background, suitability, or security
clearance. IAF, Tab 4 at 5, 8. Under the WPA, the cancellation of a vacancy
announcement or nonselection of an applicant for an appointment can be a
personnel action. King, 116 M.S.P.R. 689, ¶ 10.
¶8 Although DHS’s rescission of its offer and nonselection of the appellant did
amount to a personnel action under the WPA, she was still required to present a
nonfrivolous allegation that her protected disclosure or DHS’s perception of her
as a whistleblower was a contributing factor to her nonselection. See id., ¶¶ 6, 9.
However, a 1994 amendment to the WPA permits an appellant to demonstrate that
a disclosure was a contributing factor to a personnel action through circumstantial
evidence, such as 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. See 5 U.S.C. § 1221(e)(1)(A), (B);
Powers v. Department of the Navy, 69 M.S.P.R. 150, 155-56 & n.6 (1995).
¶9 In his decision, the administrative judge did not address the knowledge
prong of the knowledge/timing test. ID at 7. Instead, he relied on the
approximate 2-year delay between the appellant’s alleged disclosure and DHS’s
cancellation of her tentative job offer in finding that the timing aspect of the
knowledge/timing test was not satisfied. ID at 7. However, the language
of 5 U.S.C. § 1221(e)(1)(B) does not prohibit the inference of a causal link in a
case such as this, where an agency is alleged to have learned of a disclosure long
after the disclosure itself but shortly before taking a personnel action. Therefore,
by failing to address the appellant’s October 31, 2012 letter notifying DHS of her
alleged disclosures and limiting his review of the timing to the span between the
actual disclosure and DHS’s action, the administrative judge erred.
6
¶10 Based upon the above, we find that the appellant met her burden of
establishing Board jurisdiction regarding her nonselection for the DHS vacancy.
Because she made nonfrivolous allegations, the appellant is entitled to a hearing
on the merits to determine whether her disclosures were a contributing factor in
her nonselection. See Oscar v. Department of Agriculture, 103 M.S.P.R. 591,
¶ 7 (2006).
ORDER
¶11 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.