The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THOMAS J. QUATRINI, DOCKET NUMBER
Appellant, AT-1221-14-0586-W-1
v.
DEPARTMENT OF HOMELAND DATE: January 30, 2015
SECURITY,
Agency.
THIS ORDER IS NO NPRECEDENTIAL 1
Archibald J. Thomas, III, Jacksonville, Florida, for the appellant.
Joel Alexander, Esquire, Irving, Texas, 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 his individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review and
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
REMAND the case to the regional office for further adjudication in accordance
with this Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The agency terminated the appellant, a GS-9 Paralegal Specialist in the
agency’s Freedom of Information Act (FOIA) Office, during his 1-year
probationary period for unsatisfactory performance and conduct in the workplace.
Initial Appeal File (IAF), Tab 9 at 14-16 (removal notice), 43 (Standard Form
50). The appellant filed a complaint with the Office of Special Counsel (OSC),
alleging reprisal for protected disclosures. IAF, Tab 1 at 10-21. Once OSC
closed its investigation, the appellant filed the instant IRA appeal. Id. at 1-8.
The administrative judge informed the appellant of his burden to establish
jurisdiction over an IRA appeal and the parties responded. IAF, Tabs 3, 7-8. In
an initial decision, the administrative judge found that the appellant had failed to
nonfrivolously allege that any of his alleged disclosures were protected by the
Whistleblower Protection Act (WPA) and dismissed the matter for lack of
jurisdiction without holding the requested hearing. IAF, Tab 12, Initial Decision
(ID) at 2-8. The appellant has filed a petition for review and the agency has
responded in opposition. Petition for Review (PFR) File, Tabs 1-2.
¶3 The Board has jurisdiction over an IRA appeal if the appellant has
exhausted his administrative remedies before OSC and makes nonfrivolous
allegations that: (1) he engaged in whistleblowing activity by making a protected
disclosure; and (2) the disclosure was a contributing factor in the agency’s
decision to take or fail to take a personnel action. Yunus v. Department of
Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). As set forth below, we
find that the appellant exhausted his remedies before OSC and that he
nonfrivolously alleged that his disclosures regarding alleged overtime and
compensatory time violations and email fraud were protected and that these
disclosures were a contributing factor in the personnel action.
3
The appellant exhausted his OSC remedies as to some disclosures.
¶4 The administrative judge did not make an explicit finding on exhaustion of
remedies but purported to rely on the appellant’s OSC complaint in outlining the
appellant’s alleged disclosures. ID at 2 n.1. An appellant may demonstrate
exhaustion of his OSC remedies through his initial OSC complaint and evidence
that he amended or supplemented his initial OSC complaint, including OSC’s
determination letter. Mason v. Department of Homeland Security, 116 M.S.P.R.
135, ¶ 8 (2011). Thus, we find that the following alleged disclosures were
exhausted before OSC: (1) the appellant informed his supervisor and other
employees that personnel regulations did not permit the agency to require
employees to work uncompensated overtime and that compensatory time could
not be mandatory, IAF, Tab 1 at 14, 15; (2) he informed the FOIA Officer that
she could not “reflect” an employee’s use of compensatory time on his or her
performance evaluation, id. at 15; (3) he complained to the FOIA Officer and
Deputy Officer that probationary employees had not been provided objective
performance measures or performance feedback and that there was no consistency
between the reviewers, id. at 16-17; (4) he informed his supervisor that
performing FOIA request intake duties was not part of his duties, and requested
instructions in writing relieving him from FOIA analyst duties while performing
intake duties, id.; (5) he informed the FOIA Officer that the probationary
employees lacked objective performance measures and performance feedback and
that she had made rude and disrespectful comments to the office employees, id.
at 17; (6) he “engaged” the Office of Inspector General and office leadership
regarding office efficiency, employee treatment, and FOIA processes; (7) he
“decr[ied]” gross mismanagement and an abuse of authority in the agency’s
treatment of employees and the establishment of an unfair work output quota;
(8) he disclosed to an unspecified person that agency officials did not train him
properly; and (9) he disclosed to an unspecified person that the agency failed to
4
investigate alleged nepotism and alleged email fraud/forgery after an email was
sent from a fake gmail account associated with the appellant’s name. 2 Id. at 8.
The appellant made a nonfrivolous allegation of a protected disclosure.
¶5 On petition for review, the appellant argues that the administrative judge
erred insofar as she determined that he had failed to nonfrivolously allege a
protected disclosure regarding nonpayment of overtime and because she failed to
mention or evaluate his alleged disclosure of email fraud. PFR File, Tab 1 at 4.
He alleges that these disclosures were “so obvious” that he need not have
identified the law, rule, or regulation violated. 3 Id. The appellant also broadly
asserts that, taken together, his disclosures evidence gross mismanagement. Id.
Because the appellant has not specifically challenged any other of the
administrative judge’s findings on review, we will consider only these challenges
to the initial decision. See 5 C.F.R. § 1201.114(b).
¶6 At the jurisdictional stage, the appellant is only burdened with
nonfrivolously alleging that he reasonably believed that his disclosure evidenced
one of the circumstances described in 5 U.S.C. § 2302(b)(8); namely, a violation
of 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. 4
2
The administrative judge considered an additional d isclosure regarding unauthorized
personnel being allowed into secure areas, ID at 3, 6, wh ich only appears in the
appellant’s Board appeal and not the OSC complaint or OSC close-out letter, see IAF,
Tab 1 at 8, 14-21, 26-29. There is no indication that the alleged disclosure regarding
unauthorized personnel being allowed in secure areas was ever presented to OSC. See
id. Thus, we find that the appellant did not exhaust his OSC remedy with respect to the
unauthorized personnel disclosure.
3
On petition for review, the appellant asserts that his disclosures regard ing nonpayment
of overtime compensation sufficiently identified a vio lation of the Fair Labor Standards
Act (FLSA), Pub. L. 75-718, ch. 676, 52 Stat. 1060 (June 25, 1938); 29 U.S.C. ch. 8,
and that his disclosure of email fraud clearly implicated the Computer Fraud and Abuse
Act (CFAA), 18 U.S.C. § 1030. PFR File, Tab 1 at 4.
4
The Whistleblower Protection Enhancement Act of 2012 amended various provisions
of the WPA, including 5 U.S.C. § 2302(b)(9), wh ich provides for additional types of
5
Mason, 116 M.S.P.R. 135, ¶ 17; see 5 U.S.C. § 2302(b)(8). The proper test for
determining if 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 one of the conditions set forth in 5 U.S.C.
§ 2302(b)(8). Mason, 116 M.S.P.R. 135, ¶ 17. Moreover, the WPA does not
require an employee to identify the particular statutory or regulatory provision
that the agency allegedly violated where his statements and circumstances of
those statements clearly implicate an identifiable law, rule, or regulation.
Baldwin v. Department of Veterans Affairs, 113 M.S.P.R. 469, ¶ 12 (2010). Any
doubt or ambiguity as to whether the appellant made nonfrivolous jurisdictional
allegations should be resolved in favor of finding jurisdiction. Ingram v.
Department of the Army, 114 M.S.P.R. 43, ¶ 10 (2010).
¶7 Below, the appellant generally asserted that some of his wage and hour
disclosures evidenced violations of Office of Personnel Management (OPM)
regulations, but he did not identify any specific provision of law, rule, or
regulation. See IAF, Tabs 1, 7. The administrative judge found that the appellant
had failed to nonfrivolously allege that he had made a protected disclosure of any
wage and hour violation because: (1) it was not clear, and the appellant failed to
explain, how informing employees that they could not work uncompensated
overtime evidences a violation of law, rule, or regulation, ID at 4; (2) she was not
aware of, and the appellant failed to identify, any law, rule, or regulation that the
agency may have violated by offering employees compensatory time instead of
overtime, ID at 4-5; and (3) she was not aware of, and the appellant failed to
identify, any law, rule, or regulation that would prevent a supervisor from
mentioning whether an employee had worked compensatory time in his
performance evaluation, ID at 5.
protected activities. See Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 9 (2014).
However, none of these new activities are implicated here. See 5 U.S.C. § 2302(b)(9).
6
¶8 As indicated above, however, the appellant need not prove that the
condition he disclosed actually established a violation of law, rule, or regulation.
See 5 U.S.C. § 2302(b)(8)(A)(i); see also Mason, 116 M.S.P.R. 135, ¶ 17. Here,
we find that the appellant’s statement that management required paralegals to
work uncompensated overtime reasonably asserts a possible violation of the
FLSA. 5 See supra n.3; see also IAF, Tab 1 at 14, 27; Mogyorossy v. Department
of the Air Force, 96 M.S.P.R. 652, ¶ 11 (2004) (finding a possible violation of the
FLSA when the appellant disclosed that the agency failed to pay overtime to
employees for overtime worked). In addition, we find that a disinterested
observer in the appellant’s position could reasonably believe the appellant’s
statements, that OPM regulations prohibit agencies from requiring employees to
work compensatory overtime and/or from reflecting an employee’s use of
compensatory time in his or her performance evaluation, evidence violations of
federal wage and hour laws and regulations. 6 See IAF, Tab 1 at 15, 28.
Accordingly, as to these wage and hour disclosures, we find that the appellant
nonfrivolously alleged that he disclosed a violation of law, rule, or regulation.
See Chavez, 120 M.S.P.R. 285, ¶ 19.
¶9 Next, the appellant asserts that his disclosure regarding an alleged email
sent by another employee from a “fake” gmail account associated with the
5
On review, the agency asserts that the appellant did not allege any wrongdoing or that
any employee worked overtime without compensation but that he simply told employees
that they “should not work overtime without compensation.” PFR File, Tab 3 at 12.
However, we find this contention to be unsupported by the record. See IAF, Tab 1
at 14, 27.
6
Although the appellant need not have identified any specific law or regu lation by title
or number, we note that 5 C.F.R. § 551.531(c) and 5 U.S.C. § 5543(b) provide that an
agency may not require an employee to be compensated for overtime work with
compensatory time-off. Further, 5 C.F.R. § 551.531(c) prohibits an employee from
attempting to coerce any other employee’s right to request or not request compensatory
time-off in lieu of overtime pay.
7
appellant’s name to several supervisors evidences a violation of the CFAA. 7 PFR
File, Tab 1 at 4. Below, the appellant characterized this disclosure as evincing
gross mismanagement based on the agency’s failure to investigate the alleged
unethical act of email fraud/forgery, rather than as a violation of law, rule, or
regulation, as he does on review. See IAF, Tab 1 at 9, 26-27. There is no
requirement, however, that an appellant correctly label the category of
wrongdoing under section 2302(b)(8) in order to establish Board jurisdiction.
Tullis v. Department of the Navy, 117 M.S.P.R. 236, ¶ 7 (2012). Moreover, as
stated above, the WPA does not require the appellant to identify a particular
statutory or regulatory provision that the agency allegedly violated. Baldwin,
113 M.S.P.R. 469, ¶ 12. A disinterested person in the appellant’s position could
reasonably believe that federal computer crime and fraud laws have been violated
when a federal employee creates an email account in his coworker’s name,
without authorization and then uses that email account to effectively impersonate
the coworker in communications with his supervisors. See PFR File, Tab 1 at 4;
see also IAF, Tab 1 at 9, 26-27; 18 U.S.C. § 1030. As such, we find that the
appellant nonfrivolously alleged that he reasonably believed this disclosure
evidenced a violation of law.
¶10 Lastly, the appellant contends that “the bulk of [his] disclosures under the
totality of the circumstances and taken together as a whole” should be sufficient
to meet the standard for gross mismanagement because they “show agency action
or inaction which creates a substantial risk of significant adverse impact upon the
agency’s ability to accomplish its mission.” PFR File, Tab 1 at 4. The Board,
however, requires an appellant to provide more than vague and conclusory
allegations of wrongdoing. Linder, 122 M.S.P.R. 14, ¶ 13. Here, the appellant’s
allegation that some of his disclosures, taken together, would show an unspecified
7
The CFAA, see supra n.3, is a crim inal statute governing computer crime and fraud
on the internet, which, among other things, makes it illegal to intentionally access a
computer without authorization or in excess of authorization. 18 U.S.C. § 1030.
8
threat to an agency’s ability to accomplish its mission, is a conclusory allegation
lacking in specificity, and, as such, does not constitute a nonfrivolous allegation
of IRA jurisdiction. PFR File, Tab 1 at 4; see Rzucidlo v. Department of the
Army, 101 M.S.P.R. 616, ¶ 17 (2006). Accordingly, we need not consider it
further.
¶11 Even if we were to consider the appellant’s vague claim that some of his
disclosures, when considered together, show gross mismanagement, the result
would be the same. See IAF, Tab 1 at 9-21, 26-29; see also PFR File, Tab 1 at 4.
Gross mismanagement is more than de minimis wrongdoing or negligence; it
means a management action or inaction that creates a substantial risk of
significant adverse impact on the agency’s ability to accomplish its mission.
Shriver v. Department of Veterans Affairs, 89 M.S.P.R. 239, ¶ 7 (2001). A
disclosure questioning management decisions that are merely debatable or
constitute just simple negligence, with no element of blatancy, is not protected as
a disclosure of gross mismanagement. Id. In the instant case, the appellant’s
disclosures regarding alleged unfair output quotas, lack of objective performance
standards, office inefficiencies, rude or disrespectful comments by the
supervisors, and management’s failure to investigate allegations of unethical acts,
even if true, do not reveal anything more than a questioning of management
decisions that are merely debatable or simple negligence, and we discern no
indication of blatant wrongdoing. 8 See Fisher v. Environmental Protection
Agency, 108 M.S.P.R. 296, ¶ 9 (2008); see also IAF, Tab 1 at 9-21. As such, we
agree with the administrative judge’s finding that the appellant failed to make any
disclosure that a disinterested person in his position would reasonably believe
8
The appellant also claimed below that he d isclosed gross mismanagement insofar as he
requested “dispensation” from his analyst duties in order to perform leadership-directed
intake duties. IAF, Tab 1 at 16-17, 28. However, it is not clear, and the appellant has
not explained, how a request to be excused from duties constitutes a disclosure of gross
mismanagement or any other situation under 5 U.S.C. § 2302(b)(8). Accordingly, we
will not address this alleged disclosure further.
9
evidenced gross mismanagement. See ID at 6; see also Chavez v. Department of
Veterans Affairs, 120 M.S.P.R. 285, ¶ 18 (2013).
The appellant nonfrivolously alleged that his disclosures were a contributing
factor in the agency’s decision to take a personnel action against him.
¶12 To establish Board jurisdiction over his IRA appeal, the appellant also must
nonfrivolously allege that his protected activity was a contributing factor in the
agency’s decision to take the personnel action. Carney v. Department of Veterans
Affairs, 121 M.S.P.R. 446, ¶ 7 (2014). Because the administrative judge
determined that the appellant failed to nonfrivolously allege that he made a
protected disclosure, she did not make any finding as to whether any protected
disclosure was a contributing factor in the appellant’s termination. See ID at 8.
Having determined on review that the appellant nonfrivolously alleged that he
made several protected disclosures, we also will consider whether a protected
disclosure was a contributing factor in the agency’s decision to terminate him.
¶13 For jurisdictional purposes, an employee may establish that a protected
activity was a contributing factor to a covered personnel actions through
circumstantial evidence, such as the acting official’s knowledge of the protected
activity and the timing of the personnel actions. Carney, 121 M.S.P.R. 446, ¶ 7.
The Board has held that personnel actions that were alleged to have begun within
1 year of the disclosures satisfy the “timing” component of the knowledge-timing
test. See Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 10 (2013).
In the instant case, the record shows that the appellant entered on duty with the
agency on May 20, 2012, and was terminated on November 28, 2012, by the
Deputy FOIA Officer. IAF, Tab 1 at 22-24. The appellant alleges that he made
disclosures pertaining to overtime and compensatory time to his immediate
supervisor and the FOIA Officer in June and July 2012, and that the information
was also conveyed to the Deputy FOIA Officer. Id. at 14-15, 27-28. He also
asserts that, at some point during his 6-month employment, he informed the
Deputy FOIA Officer and FOIA Officer of the alleged email fraud. See id. at 9,
10
26-27. Thus, we find that the appellant has made a nonfrivolous allegation that a
protected disclosure was one factor that tended to affect the personnel action in
some way based on the knowledge-timing test because the acting official was
aware of the disclosures and the personnel action occurred within 6 months or
less of all of his disclosures. See Carney, 121 M.S.P.R. 446, ¶ 7.
¶14 Accordingly, we find that the appellant has nonfrivolously alleged that that
the disclosures were a contributing factor in the agency’s decision to terminate
his employment.
ORDER
For the reasons discussed above, we REMAND this case to the regional
office for further adjudication on the merits of this IRA appeal. On remand, the
administrative judge shall hold a hearing and shall determine whether the
appellant established by preponderant evidence that he engaged in whistleblowing
activity by making a protected disclosure under 5 U.S.C. § 2302(b)(8) when he
allegedly disclosed wage and hour violations and email fraud, and that such
whistleblowing activity was a contributing factor in the personnel action; if so,
the administrative judge must order corrective action unless the agency
establishes by clear and convincing evidence that it would have taken the same
personnel action in the absence of the disclosure. 5 U.S.C. §§ 1221(e),
2302(b)(8); Fisher, 108 M.S.P.R. 296, ¶ 15.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.