The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RAPHAEL R. ADAM, DOCKET NUMBER
Appellant, SF-1221-12-0695-B-1
v.
DEPARTMENT OF THE ARMY, DATE: February 5, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Danielle B. Obiorah, Esquire, McDonough, Georgia, for the appellant.
Michael L. Halperin, Esquire, Monterey, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the remand initial decision
in this individual right of action (IRA) appeal, which denied his request for
corrective action. Generally, we grant petitions such as this one only when: the
initial decision contains erroneous findings of material fact; the initial decision is
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the 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. See 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, and
based on the following points and authorities, 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 MODIFIED by
this Final Order to VACATE the administrative judge’s finding that the agency
proved it would not have selected the appellant for a vacant instructor position by
clear and convincing evidence and to find that the appellant did not show that his
disclosure was a contributing factor in the agency’s decision to allow his
temporary appointment to expire, we AFFIRM the initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 We previously found that the appellant had made a nonfrivolous allegation
establishing Board jurisdiction over his IRA claim and remanded this appeal for a
hearing on the merits. Remand Appeal File (RAF), Tab 1.
¶3 The appellant was an Assistant Professor serving a temporary appointment
at the agency’s Defense Language Institute Foreign Language Center and Presidio
of Monterey, California. MSPB Docket No. SF-1221-12-0695-W-1, Initial
Appeal File (IAF), Tab 7, Subtab 4O. His temporary appointment expired on
September 30, 2011. Id., Subtab 4G. He alleged that he made two protected
disclosures to his former dean, and, in retaliation for those disclosures, his
temporary appointment was not extended and he was not selected for available
vacant instructor positions. IAF, Tab 1 at 4-8. The Board found that he made a
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nonfrivolous allegation for only one of the two disclosures. RAF, Tab 1 at 4-5.
Specifically, the Board found that, in August 2009, he made a protected
disclosure to his then-dean that other instructors were misusing government
resources while on temporary duty. Id. The instructors, including the appellant,
were all supervised by a supervisory program manager who was the subject of the
appellant’s other alleged protected disclosure. RAF, Tab 1 at 5, Tab 14 at 17.
We previously affirmed the administrative judge’s determination that this second
disclosure was not protected. RAF, Tab 1 at 5.
¶4 On remand, the appellant withdrew his request for a hearing during a
conference call and moved to have the appeal adjudicated based on the written
record. RAF, Tab 9 at 1. The administrative judge notified the appellant of his
burden to prove his IRA appeal. Id. at 4-10. Both parties submitted additional
evidence and argument prior to the close of the record. RAF, Tabs 13-15. The
administrative judge issued a decision that denied the appellant’s request for
corrective action. RAF, Tab 16, Remand Initial Decision (RID) at 1. He found
that the appellant exhausted his remedies with the Office of Special Counsel
(OSC) and that his nonselection was a personnel action under 5 U.S.C.
§ 2302(a)(2)(A). RID at 5-6. The administrative judge found that the appellant
failed to show that his whistleblowing was a contributing factor to his
nonselection. 2 RID at 12. The appellant has submitted a timely petition for
review. Remand Petition for Review (RPFR) File, Tab 1. The agency has
responded in opposition to the appellant’s petition for review. RPFR File, Tab 2.
2
The administrative judge also found that the agency proved by clear and convincing
evidence that it would not have selected the appellant for the vacant position. ID at 13.
Because we find that the appellant did not prove that his whistleblowing was a
contributing factor to his nonselection, the appellant did not prove his prima facie claim
of reprisal and the administrative judge erred in reaching the issue as to whether the
agency proved by clear and convincing evidence that it would have taken the personnel
action. See Clarke v. Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19 n.10
(2014). Therefore, we VACATE the administrative judge’s clear and convincing
finding.
4
¶5 To secure corrective action from the Board in an IRA appeal, an appellant
must first seek corrective action from OSC. Aquino v. Department of Homeland
Security, 121 M.S.P.R. 35, ¶ 9 (2014). If an appellant has exhausted his
administrative remedies before OSC, he can establish Board jurisdiction over an
IRA appeal by nonfrivolously alleging that he made a protected disclosure and
that the disclosure was a contributing factor in the agency’s decision to take a
personnel action. Id. Once the appellant successfully proves jurisdiction, he
must establish a prima facie case of whistleblower reprisal by proving, by
preponderant evidence, that he made a protected disclosure that was a
contributing factor in a personnel action taken against him. Hugenberg v.
Department of Commerce, 120 M.S.P.R. 381, ¶ 9 (2013). The parties have not
contested the administrative judge’s findings that the appellant exhausted his
administrative remedies with OSC, that his nonselection was a covered personnel
action, and that he made a protected disclosure. Therefore, we see no reason to
disturb these well-reasoned findings on review. See 5 C.F.R. § 1201.115 (the
Board normally will consider only issues raised in a timely petition for review or
cross petition for review).
¶6 The administrative judge found that the appellant failed to show that the
officials who made the decision not to select him for a vacant instructor position
knew of his whistleblowing activity. RID at 12. He further found the appellant
did not demonstrate that other individuals who were aware of his whistleblowing
activity influenced the individuals on the selection panel. RID at 12. The
appellant argues in his petition for review that the administrative judge made
improper credibility determinations in giving greater weight to the agency’s
affidavits over the appellant’s affidavit. RPFR File, Tab 1 at 6-8. We disagree. 3
3
When an administrative judge’s findings are not based on the observation of
witnesses’ demeanor, the Board is free to reweigh the evidence and substitute its own
judgment on credibility issues. Haebe v. Department of Justice, 288 F.3d 1288, 1302
(Fed. Cir. 2002). On examining the evidence, we agree with the administrative judge’s
findin gs.
5
¶7 An employee who establishes that he made a protected disclosure has the
additional burden of showing that the disclosure was a contributing factor in the
personnel action. Schneider v. Department of Homeland Security, 98 M.S.P.R.
377, ¶ 16 (2005). An employee may meet this burden through circumstantial
evidence, such as the acting officials’ knowledge of the disclosure and the timing
of the personnel action. Id. Thus, an appellant’s submission of evidence that the
officials taking the personnel action knew of the disclosure and that the personnel
action occurred within a period of time such that a reasonable person could
conclude that the disclosure was a contributing factor in the personnel actions,
i.e., evidence sufficient to meet the knowledge/timing test, satisfies the
contributing factor standard. Id. While the knowledge/timing test is not the only
way for an appellant to satisfy the contributing factor standard, it is one possible
way to satisfy the standard and is the method utilized by the appellant. Baldwin
v. Department of Veterans Affairs, 113 M.S.P.R. 469, ¶ 22 (2010); RAF, Tab 14
at 10-12.
¶8 Here, the appellant was correct that the proximity of his disclosure to the
personnel action demonstrated the timing element of the knowledge/timing test.
RAF, Tab 14 at 11-12. The appellant alleged that his nonselection occurred
22 months after making his protected disclosure. Id. at 11. The Board has
previously held that a personnel action taken within 1 to 2 years of a disclosure
meets the timing element of the knowledge/timing test. Ontivero v. Department
of Homeland Security, 117 M.S.P.R. 600, ¶ 23 (2012).
¶9 However, the appellant fails to prove the knowledge element of the test.
The appellant alleged both actual and constructive knowledge by the selecting
officials involved in his nonselection. RAF, Tab 14 at 10-11. The appellant
alleged that the selection panel became aware of his whistleblowing activities
when the panel members reviewed his official personnel file (OPF). Id. at 11, 18.
As the administrative judge noted in his decision, the appellant provided no
evidence to support this argument and did not identify what documents, if any,
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may have been included in his OPF that would have indicated his whistleblowing
activity. RID at 10. The appellant’s argument was contradicted by the sworn
statement of one of the selection panel members that the selection panel was not
aware of the appellant’s whistleblowing activity. RAF, Tab 13 at 11. The
appellant argues that the selection panel member’s affidavit should have included
only her actions in the selection process and not included statements on behalf of
the other selection panel members. RPFR File, Tab 1 at 7. Even if the affidavit
only addressed her individual process and actions as the appellant argues, the
appellant has not demonstrated actual knowledge by either the affiant or the other
two selection panel members. The appellant has not submitted any evidence that
his disclosure or other documents relating to his whistleblowing were included in
his OPF. The appellant only made the unsupported allegation that, because his
OPF was forwarded to the selection panel, his activity could have been included
in the file. RAF, Tab 14 at 11. In addition, the selection panel members were in
a different directorate than the appellant, Continuing Education versus
Undergraduate Education, based on the agency’s affidavits and the organizational
chart submitted by the appellant. See id. at 42 (organization chart for Continuing
Education directorate), RAF, Tab 13 at 7, 11 (selection panel consisted of deans
of three Arabic language schools in the Undergraduate Education directorate).
Therefore, the appellant has not proven by preponderant evidence that the
selection panel had actual knowledge of his protected disclosure when it did not
select him for the instructor position.
¶10 The appellant also alleged that his former dean and supervisory program
manager were both aware of his disclosure and influenced the selection process.
RAF, Tab 14 at 11. In making this argument, he seeks to impute knowledge of
his disclosure to the selection panel under a cat’s paw theory. See Aquino,
121 M.S.P.R. 35, ¶ 21 (citing Staub v. Proctor Hospital, 562 U.S. 411, 131 S. Ct.
1186, 1194 (2011) (applying a cat’s paw theory to a claim under the Uniformed
Services Employment and Reemployment Rights Act of 1994)). Under this
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theory, an appellant can demonstrate that his whistleblowing was a contributing
factor in the personnel action by showing by preponderant evidence that an
individual with knowledge of his protected disclosure influenced the deciding
officials accused of taking the personnel action. Id., ¶ 23.
¶11 The agency provided evidence that the selection panel made its choices
based on the performance and disciplinary records found in the OPF of each
applicant and did not discuss the selections with anyone in the appellant’s
division. RAF, Tab 13 at 11. The agency submitted a sworn affidavit from the
former dean, who stated that he did not discuss the appellant’s whistleblowing
disclosure with the members of the selection panel. 4 Id. at 8. The appellant
stated in his affidavit that, after he made his protected disclosure, his supervisory
program manager’s treatment of him was “noticeably different and less cordial.”
RAF, Tab 14 at 18. The appellant argued that the timing of the change in
behavior was evidence that the supervisory program manager was aware of the
disclosure. Id. at 10-11. The appellant admitted that he did not know what
actions the former dean took regarding his disclosure. Id. at 17. We find that the
appellant provided insufficient evidence that the supervisory program manager
had knowledge of the protected disclosure or engaged in any activity with the
intent to cause the selection panel to take the personnel action. 5
4
The appellant argues that the former dean’s affidavit should not have been weighted
so greatly by the administrative judge because the former dean’s statements, regarding
any comments from the appellant’s supervisory chain of command, are hearsay. RPFR
File, Tab 1 at 7-8. We need not consider the former dean’s statements beyond his
statement that he did not discuss the disclosure with the selection panel because the
appellant has only alleged constructive knowledge through the former dean and
supervisory program manager and not any other members of his supervisory chain of
command. RAF, Tab 14 at 10-11.
5
In an IRA appeal, the appellant bears the burden of proving that the retaliation at issue
was related to a protected disclosure. See Hugenberg, 120 M.S.P.R. 381, ¶ 9 (setting
forth the elements of the appellant’s prima facie case). Therefore, to the extent that the
appellant alleges that the program manager retaliated against him for his disclosure that
we previously held not to be protected, that claim also fails. RAF, Tab 1 at 5, Tab 14
at 18.
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¶12 We also agree with the administrative judge that the appellant provided
insufficient evidence that his former supervisory program manager influenced the
selection process. RID at 12. The appellant alleged that one of the instructors
was not initially selected but was selected after meeting with the supervisory
program manager. RAF, Tab 14 at 18. The appellant did not provide evidence,
such as an affidavit from the selected instructor, that the supervisory program
manager’s involvement led to his subsequent selection. Id.
¶13 In 2010, the appellant reported to a new program manager. See id. at 17.
The appellant further alleged in his affidavit that his new program manager
disciplined him in 2010, in retaliation for his protected disclosure. Id. at 18.
According to the appellant, this discipline was then reviewed and considered by
the selection panel in deciding not to select him. Id. However, as the
administrative judge noted in his decision, the appellant had previously alleged
that this discipline was due to discrimination based on national origin and not in
retaliation for whistleblowing. RID at 11-12. In addition, the appellant has
provided no evidence that the new program manager had any knowledge of his
2009 protected disclosure beyond his own unsupported speculation. RAF, Tab 14
at 18. Therefore, we find that the evidence does not support imputing knowledge
of the appellant’s disclosure to the selection panel under the cat’s paw theory.
¶14 Based on the evidence in the record, we find that the appellant did not prove
by preponderant evidence that his protected disclosure was a contributing factor
in his nonselection for the instructor position because he did not prove that the
selection panel was aware, or was influenced by someone who was aware, of his
whistleblowing activity.
¶15 In his initial appeal, the appellant indicated that his temporary appointment
was allowed to expire in retaliation for his whistleblowing activity. IAF, Tab 1
at 5. The Board found in its remand decision that the appellant established
jurisdiction over this claim. RAF, Tab 1 at 7. The appellant, who was
represented by counsel, did not submit any evidence or argument on remand
9
regarding this claim, and the administrative judge did not address it in his remand
initial decision. Because the appellant withdrew his request for a hearing, the
Board can decide this issue on review. See Shingles v. U.S. Postal Service,
90 M.S.P.R. 245, ¶ 10 (2001) (the effect of an appellant withdrawing his request
for a hearing is an adjudication based on the record).
¶16 The appellant’s temporary appointment expired on September 30, 2011, but
he alleged that the decision to close the department in which he worked was made
in April 2011, and he was informed of the decision in May 2011. IAF, Tab 1 at 8,
Tab 7, Subtab 4G; RAF, Tab 14 at 17. Therefore, the appellant has proven the
timing element of the knowledge/timing test by preponderant evidence because
the appellant made his disclosure approximately 20 months before the decision to
end the program. RAF, Tab 14 at 17; see Ontivero, 117 M.S.P.R. 600, ¶ 23. On
remand, the agency submitted evidence that the provost decided to reorganize due
to a lack of work. The appellant has failed to meet his burden to prove the
knowledge element of the knowledge/timing test, because he provided no
evidence or argument that the provost had any knowledge of his protected
disclosure. As mentioned above, the appellant acknowledged that he was not
aware of what actions, if any, the former dean took regarding his disclosure.
RAF, Tab 14 at 17. There is no evidence that the former dean shared the
disclosure with the provost. There is also no evidence that the former dean
influenced the provost to end the program and not to extend the appellant’s
temporary appointment. Because the appellant has not shown that the provost
was aware of his protected disclosure, he has not demonstrated that the disclosure
was a contributing factor in the agency’s decision to allow his temporary
appointment to expire. Therefore, his claim regarding the termination of his
temporary appointment also fails.
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NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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 have the right to
request the United States Court of Appeals for the Federal Circuit to review this
final decision.
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of the Board’s decision concerning your claims of
prohibited personnel practices under 5 U.S.C. § 2302(b)(8), (b)(9)(A)(i),
(b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge the Board’s
disposition of any other claims of prohibited personnel practices, you may request
review of this final decision by the United States Court of Appeals for the Federal
Circuit or any court of appeals of competent jurisdiction. The court of appeals
must receive your petition for review within 60 days after the date of this order.
See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose to file,
be very careful to file on time. You may choose to request review of the Board’s
decision in the United States Court of Appeals for the Federal Circuit or any
other court of appeals of competent jurisdiction, but not both. Once you choose
to seek review in one court of appeals, you may be precluded from seeking
review in any other court.
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
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States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information about the United States 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, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.