The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEAN A. MATIAS, DOCKET NUMBERS
Appellant, SF-1221-13-0178-W-2
SF-1221-13-0493-W-1
v.
DEPARTMENT OF HOMELAND
SECURITY, DATE: April 14, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Jean A. Matias, Honolulu, Hawaii, pro se.
Jessica A. Neff, Washington, D.C., for the agency.
Reagan N. Clyne, Springfield, Virginia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action in these joined individual right of action
(IRA) appeals. Generally, we grant petitions such as this one only when: the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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 expressly
MODIFIED by this Final Order to find that the appellant’s disclosure number 15
was protected, we AFFIRM the initial decision.
BACKGROUND
¶2 Beginning in April 2007, the appellant served as the GS-15 Assistant
Special Agent in Charge (ASAIC) of the U.S. Secret Service’s Honolulu field
office (HFO). Matias v. Department of Homeland Security, MSPB Docket No.
SF-1221-13-0178-W-1, Initial Appeal File (IAF1), Tab 5, Vol. 3 at 384. Her
direct supervisor was A.J., Special Agent in Charge (SAIC) of the HFO, her
second-level supervisor was C.M., Deputy Assistant Director (DAD) of the
Office of Investigations (INV), 2 and her third-level supervisor was M.M.,
Assistant Director (AD) of the INV. 3 Id., Vol. 2 at 10; IAF1, Tab 8, Vol. 6,
2
C.M. was DAD of the INV from July or August 2008 until 2010, when he transferred
to the position of DAD of the Office of Strategic Intelligence and Information (OSII).
Hearing Transcript (HT) at 55. Effective February 10, 2013, he was reassigned to the
position of Assistant Director (AD) of the OSII. See IAF1, Tab 12 at 96.
3
Effective October 25, 2010, M.M. was reassigned to the position of AD of the Office
of Administration (ADM). See IAF1, Tab 8, Vol. 6, Agency File, Part 3 at 56.
3
Agency File, Part 3 at 57; HT at 55. In 2008 and 2009, the appellant reported to
C.M. that A.J. had engaged in “malfeasance, violation of Federal law and
harassment.” IAF1, Tab 5, Vol. 2 at 10. Based on the reports of the appellant
and other HFO employees, C.M., with M.M.’s concurrence, assigned two SAICs
to conduct a fact-finding investigation involving personnel assigned to the HFO.
IAF1, Tab 8, Vol. 6, Agency File, Part 4 at 35; HT at 79.
¶3 From January 5-8, 2009, the SAICs conducted 30 interviews in Honolulu in
support of the investigation. IAF1, Tab 8, Vol. 6, Agency File, Part 4 at 35.
During her interview on January 5, 2009, the appellant reported, inter alia, that:
the HFO had 10 revolving memberships at a private gym where A.J. exercised
every day even though there was a gym in the HFO, id. at 43; A.J. saw no value
in ensuring that Special Agents (SAs) could access Hawaii Department of Motor
Vehicles (DMV) records directly from the HFO, stating that they could obtain the
same information by going to the DMV, id.; and Foreign Service Nationals
(FSNs) were using government-owned vehicles (GOVs) for their home-to-work
(HTW) transportation, id. at 45. The appellant also told the fact-finders that A.J.
was too old (68 years old), was born on a pineapple plantation, and “need[ed] to
go.” Id. at 47. In addition, she disclosed that she had taken money from the
Confidential Fund to provide travel advances to agents because no one with
authority to issue drafts was available. Id.
¶4 Following the investigation, the appellant bid on and was selected for a
lateral reassignment to the GS-15 position of ASAIC of the INV’s Criminal
Investigative Division (CID) in Washington, D.C., to be effective August 30,
2009. 4 IAF1, Tab 8, Vol. 6, Agency File, Part 4 at 18, 29. The appellant asked to
be excused from that position when she was unable to sell her home in Honolulu
4
The record indicates that the position was open for bid from February 26, 2009, to
March 12, 2009. IAF1, Tab 8, Vol. 6, Agency File, Part 4 at 28-29. On April 14, 2009,
the agency announced that the appellant had been selected for the position. Id. at
17-18.
4
without taking a substantial loss. IAF1, Tab 5, Vol. 2 at 50; HT at 453-54. By
then, however, her position as ASAIC of the HFO had been filled by someone
else. IAF1, Tab 5, Vol. 2 at 50; HT at 454-55. With the agency’s assistance, in
January 2010, the appellant obtained a GS-15 position at the Hawaii Department
of Homeland Security State and Local Fusion Center (Fusion Center) in
Honolulu. IAF1, Tab 5, Vol. 2 at 50; HT at 455-60.
¶5 In the meantime, C.M. issued a memorandum dated August 14, 2009,
advising the appellant of his decision to suspend her for 1 day, effective
August 21, 2009, for Unauthorized Use of Confidential Funds and Making
Inappropriate Comments. IAF1, Tab 5, Vol. 2 at 157-58. On August 18, 2009,
the appellant filed an administrative grievance of her suspension, which was
denied by P.M., AD of the Office of Protective Research, 5 on November 23,
2009. Id. at 160-63.
¶6 On December 4, 2009, the appellant filed a complaint with the Office of
Special Counsel (OSC) alleging that the agency had suspended her for 1 day in
reprisal for whistleblowing and for filing a grievance of the suspension. See
IAF1, Tab 5, Vol. 2 at 98. After exhausting her remedies with OSC, the appellant
filed an IRA appeal with the Board, which was dismissed as settled in an initial
decision. 6 Matias v. Department of Homeland Security, SF-1221-10-0588-W-1,
Initial Decision (June 29, 2010) (suspension ID); see IAF1, Tab 8, Vol. 6, Agency
File, Part 4 at 6-8 (copy of the settlement agreement).
¶7 Thereafter, the appellant expressed interest in other positions, but she was
not selected for them. See, e.g., IAF1, Tab 5, Vol. 3 at 454-57 (September 9,
2011 email from the appellant expressing interest in the GS-15 positions of
5
P.M. subsequently served as AD of the Office of Government and Public Affairs
(GPA) from October 9, 2011, until February 10, 2013, when he was reassigned to the
position of AD of the INV. See IAF1, Tab 8, Vol. 6, Agency File, Part 3 at 101, Tab 12
at 96.
6
That decision became the Board’s final decision on August 3, 2010, when neither
party filed a petition for review. Suspension ID at 2.
5
Resident Agent in Charge (RAIC) of the London resident office and ASAIC of
the Rome field office), 458-62 (December 28, 2011 email announcing the
selectees for those positions). On January 6, 2012, the appellant applied for the
Department of Homeland Security (DHS) Fellows Program, a leadership
development program, id. at 356-63, but she was not selected to participate, see
id. at 366-67.
¶8 On March 1, 2012, the appellant filed a complaint with OSC alleging that
she was reassigned to the Fusion Center and was not selected for promotion to a
Senior Executive Service (SES) position, 7 reassignment to other GS-15 positions,
or participation in the DHS Fellows Program in reprisal for her disclosures in
2008 and 2009, her August 2009 grievance, and her Board appeal. IAF1, Tab 8,
Vol. 5, Agency File, Part 2 at 4-26. In the appellant’s November 26, 2012
response to OSC’s November 9, 2012 letter advising her of its preliminary
determination to close its inquiry into her allegations, she identified the following
16 disclosures:
(1) A.J. nicknamed her “Madame Bulldog”;
(2) A.J. permitted illegal/improperly staffed applicant panel
interviews in violation of Secret Service policy;
(3) A.J. allowed for the payment of an undercover telephone line
without a telephone attached for 10 years;
(4) A.J. allowed for an unmonitored/excessive HFO annual utility bill
of $66,608.21, which the appellant reduced to $12,289 for Fiscal
Year 2008;
(5) A.J. placed a performance expectation letter in an employee’s
personnel file without the approval of the Secret Service’s employee
relations branch;
7
The Office of Personnel Management certified the appellant as eligible for an SES
position on December 30, 2008. See Matias v. Department of Homeland Security,
MSPB Docket No. SF-1221-13-0493-W-1, In itial Appeal File (IAF2), Tab 19 at 4; HT
at 9.
6
(6) A.J. had a private gym membership paid for by the Secret Service
and he left work early every day to exercise there;
(7) A.J. denied the purchase of search warrant breaching tools, which
caused delays, downtime and distraction from the Secret Service’s
mission, resulting in a lack of efficacy and efficiency;
(8) A.J. denied SAs access to the Hawaii Driver’s License System,
stating that computer access to drivers’ license information was
unnecessary, as there were other investigative tools available and
SAs could go to the DMV for the information;
(9) 12 of the HFO’s 21 official Secret Service vehicles were not
equipped with police lights/siren packages for emergency/response
purposes;
(10) The HFO regularly engages in excessive official travel to
destinations that are farther from Hawaii and closer to Europe, New
York, or Chicago, resulting in the purchase of business-class airline
tickets, excessive travel, and excessive overtime expenses. The
HFO’s district lines require reevaluation;
(11) A.J. failed to discipline an SA assigned to the Federal Bureau of
Investigation (FBI) Joint Terrorism Task Force who did not
participate in any HFO cases or perform other duties for the Secret
Service;
(12) A.J. failed to have the HFO’s administrative personnel properly
cross-trained with the appropriate authority and access;
(13) A.J. allowed the HFO’s Administrative Officer to dispense
confidential funds in the absence of the Confidential Fund Cashier
and the Assistant Confidential Fund Cashier, which is a violation of
Secret Service policy;
(14) A.J. misused his GOV by using it to go shopping once a week;
(15) A.J. gave foreign nationals working for Secret Service offices in
Hong Kong and Bangkok official Secret Service vehicles for their
daily commute to work. This is a violation of federal law;
7
(16) A.J. used derogatory names when referring to FBI supervisors
(male and female) and to the female Health and Human Services
(HHS) supervisor.
Id., Agency File, Part 1 at 114-16, 135-38.
¶9 On November 28, 2012, OSC terminated its inquiry into the appellant’s
allegations and issued her a closure letter and notice of Board appeal rights.
IAF1, Tab 8, Vol. 5, Agency File, Part 1 at 111-12. The appellant timely filed an
IRA appeal on January 8, 2013, and requested a hearing. IAF1, Tab 1.
¶10 On January 25, 2013, the agency announced appointments to six SES
positions; however, the appellant was not one of the appointees. IAF1, Tab 12 at
96-97. The appellant filed another OSC complaint on March 7, 2013, alleging
that she was not selected for any of the SES positions announced on January 25,
2013, in reprisal for her disclosures. Id. at 81-95. In light of the appellant’s new
OSC complaint, the administrative judge issued a March 27, 2013 initial decision
dismissing her IRA appeal without prejudice to refiling, noting that the parties
agreed that the personnel actions at issue in the appellant’s appeal 8 and her new
OSC complaint should be adjudicated together for administrative efficiency.
IAF1, Tab 16. On May 3, 2013, OSC issued a closure letter regarding the
appellant’s March 7, 2013 complaint. IAF2, Tab 1 at 11. On May 21, 2013, the
appellant filed an IRA appeal with the Board and requested a hearing. Id. at 3.
The same day, she refiled her January 2013 IRA appeal. Matias v. Department of
Homeland Security, MSPB Docket No. SF-1221-13-0178-W-2, Refiled Appeal
8
These personnel actions are the appellant’s assignment to the Fusion Center in January
2010, her nonselection for participation in the 2012 DHS Fellows Program, and her
nonselection for the following positions between December 2010 and September 2012:
(1) SES SAIC of the HFO in December 2010, IAF1, Tab 5, Vol. 3 at 432; (2) GS-15
RAIC of the London resident office in December 2011, id., Vol. 4 at 458, 460;
(3) GS-15 ASAIC of the Rome field office in December 2011, id. at 458, 462; (4) SES
SAIC of the Technical Security Division (TSD), Office of Technical Development and
Mission Support (TEC) in August 2012, IAF1, Tab 8, Vo l. 5, Part 2 at 54; (5) SES
SAIC of the HFO in August 2012, id.; (6) GS-15 ASAIC of the Rome field office in
September 2012 , IAF1, Tab 8, Vol. 5, Part 2 at 66; and (7) GS-15 Deputy SAIC of the
Chicago field office in September 2012, id. at 65; see IAF1, Tab 11 at 5, Tab 12 at 9.
8
File (RAF), Tab 1. The administrative judge joined the two appeals. IAF2, Tab
26.
¶11 Following a hearing, the administrative judge issued an initial decision in
which she found that the Board has jurisdiction over the joined appeals but
denied the appellant’s request for corrective action. RAF, Tab 21, Initial
Decision (ID) at 2. The administrative judge found that disclosures (2), (6), 9
(11), (13), and (14) were protected, but not the remainder, ID at 16-29, and that
the appellant had proved by preponderant evidence that her disclosures were a
contributing factor in each personnel action at issue, ID at 29-32. However, the
administrative judge found that the agency proved by clear and convincing
evidence that it would have taken the same personnel actions in the absence of
the protected disclosures. ID at 32-51.
¶12 On petition for review, the appellant challenges the administrative judge’s
findings that several of her disclosures were not protected, Petition for Review
(PFR) File, Tab 1 at 8-12, and that the agency proved by clear and convincing
evidence that it would have taken the same actions in the absence of her
whistleblowing activity, id. at 12-20. She also contends that the fact-finding
investigation was improper, id. at 5-6, and that the administrative judge
improperly denied her witness requests, id. at 9, 14-17. The agency has filed a
response in opposition to the petition for review. PFR File, Tab 2.
ANALYSIS
¶13 In an IRA appeal, after establishing the Board’s jurisdiction, 10 the appellant
then must establish a prima facie case of whistleblower retaliation by proving by
9
As indicated above, this disclosure consists of the following two statements regarding
A.J.: (1) he had a private gym membership paid for by the Secret Service; and (2) he
left work early every day. IAF1, Tab 8, Vo l. 5, Agency File, Part 1 at 115. The
administrative judge found that only the second statement was a protected disclosure.
See ID at 20-21.
10
We discern no reason to disturb the administrative judge’s finding that the appellant
established jurisdiction over these appeals. See ID at 2.
9
preponderant evidence that: (1) she made a disclosure described under 5 U.S.C.
§ 2302(b)(8) or engaged in protected activity described under 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity
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). 5 U.S.C. § 1221(e)(1); Webb
v. Department of the Interior, 122 M.S.P.R. 248, ¶ 6 (2015). If the appellant
meets that burden, the Board shall order such corrective action as it considers
appropriate unless the agency shows by clear and convincing evidence that it
would have taken the same personnel action in the absence of the protected
disclosure. 5 U.S.C. § 1221(e)(1)-(2); Chambers v. Department of the Interior,
116 M.S.P.R. 17, ¶ 12 (2011). Clear and convincing evidence is “that measure or
degree of proof that produces in the mind of the trier of fact a firm belief as to the
allegations sought to be established.” 5 C.F.R. § 1209.4(d).
The appellant made protected disclosures.
¶14 A protected disclosure is a disclosure that an appellant reasonably believes
evidences a violation of any 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. 5 U.S.C. § 2302(b)(8)(A); Chambers v. Department of
the Interior, 515 F.3d 1362, 1367 (Fed. Cir. 2008). A reasonable belief exists if a
disinterested observer with knowledge of the essential facts known to and readily
ascertainable by the appellant could reasonably conclude that the actions of the
government evidence one of the categories of wrongdoing listed in section
2302(b)(8)(A). Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999). To
establish that she made a protected disclosure, the appellant need not prove that
the matter disclosed actually established one of the types of wrongdoing listed
under section 2302(b)(8)(A); rather, she must show that the matter disclosed was
one which a reasonable person in her position would have believed evidenced any
of the situations specified in 5 U.S.C. § 2302(b)(8). Chavez v. Department of
Veterans Affairs, 120 M.S.P.R. 285, ¶ 18 (2013).
10
¶15 As noted above, the administrative judge found that the appellant proved by
preponderant evidence that the following disclosures were protected: all of
disclosures (2), (11), (13), and (14), and a portion of disclosure (6) pertaining to
A.J.’s work schedule. ID at 16-17, 21, 26-27. The agency has not filed a cross
petition for review contesting the administrative judge’s findings regarding these
disclosures. The appellant does not challenge on review the administrative
judge’s finding that she failed to prove by preponderant evidence that disclosure
(3) was protected. ID at 18. Thus, we will limit our discussion to the remaining
disclosures.
¶16 Disclosures (1) and (16) involve A.J.’s alleged remarks about the appellant
(disclosure (1)) and employees of other agencies (disclosure (16)). See IAF1,
Tab 8, Vol. 5, Agency File, Part 1 at 115-16. Regarding disclosure (1), the
administrative judge found that the appellant did not disclose an abuse of
authority when she informed C.M. and the fact-finders that A.J. had nicknamed
her Madame Bulldog. ID at 16 (citing IAF1, Tab 5, Vol. 2 at 155, 194). An
abuse of authority occurs when there is an arbitrary or capricious exercise of
power by a federal official or employee that adversely affects the rights of any
person or that results in personal gain or advantage to himself or to preferred
other persons. Chavez, 120 M.S.P.R. 285, ¶ 22. We agree with the
administrative judge’s finding that a disinterested observer could not reasonably
conclude that A.J. calling the appellant Madame Bulldog constituted an arbitrary
or capricious exercise of power that adversely affected her rights. ID at 16. As
the administrative judge noted, A.J. did not threaten the appellant's career or take
any other unwarranted actions against her, and the appellant did not describe the
context or circumstances surrounding the remark. ID at 16. Thus, although A.J.
may have behaved unprofessionally by referring to the appellant as Madame
Bulldog, the appellant failed to prove that a disinterested observer could
reasonably conclude that A.J.’s use of this nickname constituted an abuse of his
authority.
11
¶17 As for disclosure (16), we agree with the administrative judge that the
appellant did not prove by preponderant evidence that she reasonably believed
that A.J.’s use of derogatory names to refer to employees of other agencies
constituted an abuse of his authority. ID at 29 (citing RAF, Tab 14 at 64). In
particular, the appellant disclosed that, during a conversation with her, A.J.
referred to a female HHS employee as “Bart Simpson,” and referred to the FBI as
the “Honolulu field office.” 11 ID at 29 (citing RAF, Tab 14 at 62-63). Again,
although A.J.’s remarks may have been unprofessional, a disinterested observer
could not reasonably conclude that they constituted an abuse of his authority.
¶18 Regarding disclosure (4), that the HFO had an excessive utility bill because
of A.J.’s decision to designate the HFO a 24-hour per day operation and run the
utilities around the clock, we agree with the administrative judge that the
appellant failed to prove by preponderant evidence that a reasonable person
would believe that this decision constituted gross mismanagement or resulted in a
gross waste of funds. ID at 19-20. “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. See Cassidy v. Department of Justice, 118 M.S.P.R.
74, ¶ 8 (2012). It does not include management decisions that are merely
debatable. See Johnson v. Department of Justice, 104 M.S.P.R. 624, ¶ 16 (2007).
Likewise, the Board has defined a gross waste of funds as “a more than debatable
expenditure that is significantly out of proportion to the benefit reasonably
expected to accrue to the government.” MaGowan v. Environmental Protection
Agency, 119 M.S.P.R. 9, ¶ 7 (2012) (quoting Downing v. Department of Labor,
98 M.S.P.R. 64, ¶ 11 (2004), aff’d, 162 F. App’x 993 (Fed. Cir. 2006)).
11
The transcript of the appellant’s July 20, 2013 deposition indicates that she reported
that A.J. referred to the FBI as the “Honolulu field office.” RAF, Tab 14 at 62-63. In
addressing disclosure (16) in her petition for review, however, the appellant alleges that
A.J. referred to the FBI’s Honolulu field office as the “Homolulu Office” because the
female SAIC supposedly “lived non-traditional lifestyles.” PFR File, Tab 1 at 12.
12
¶19 Applying these standards, the administrative judge correctly found that the
appellant’s complaint about the HFO’s utility bills did not disclose gross
mismanagement because the decision to designate the office a round-the-clock
operation, and thus incur higher utility bills, was a debatable management
decision within A.J.’s discretion, and there were legitimate reasons for his
decision. ID at 19-20. In that regard, the administrative judge noted the
appellant acknowledged that sometimes employees had to work evenings and
weekends, and that computer equipment was required to be stored at certain
temperatures. ID at 19 (citing RAF, Tab 14 at 20-21; HT at 26).
¶20 As for whether the appellant’s complaint about the utility bill constituted a
protected disclosure of a gross waste of funds, we agree with the administrative
judge that the expenditure was debatable because the higher bill was based on
A.J.’s decision to designate the office a “24/7 operation”—a decision that was
within his discretion and that he had legitimate reasons for making. ID at 19.
Moreover, in light of the fact that HFO employees were sometimes required to
work in the evenings and on weekends, and computers were required to be stored
at certain temperatures, this expenditure was not “significantly out of proportion”
to the benefit reasonably expected to accrue to the government. Thus, we agree
with the administrative judge’s finding that the higher cost did not reflect a gross
waste of funds. ID at 19. Therefore, we find that the appellant did not prove that
disclosure (4) was a protected disclosure.
¶21 Regarding disclosure (5), that A.J. placed a performance expectation letter
in an SA’s personnel file without having the letter approved by the Secret
Service’s employee relations branch, the administrative judge found that the
appellant did not prove that a reasonable person would believe this situation
resulted in a violation of a law, rule, or regulation, or any other category of
wrongdoing. ID at 20. In making this finding, the administrative judge noted
that M.M. testified that an SAIC “certainly” has the authority to place a
reprimand or letter of counseling in an employee’s file, ID at 20 (citing HT at
13
194), and that the appellant cited no law, rule, or regulation requiring that the
employee relations branch approve the performance expectation letter at issue, ID
at 20. Instead, the appellant testified that it was merely her “understanding” that
the process must be coordinated with employee relations. ID at 20 (citing HT at
27-28). In addition, the administrative judge noted that the appellant
acknowledged that she was unaware of whether A.J. had discussed the letter with
employee relations. ID at 20.
¶22 We agree with the administrative judge that the appellant failed to prove
that this disclosure was protected. To make a protected disclosure of a violation
of law, rule, or regulation, an employee must identify the specific law, rule, or
regulation that was violated. Langer v. Department of the Treasury, 265 F.3d
1259, 1266 (Fed. Cir. 2001). Although an individual need not identify a statutory
or regulatory provision by particular title or number when the statements and
circumstances surrounding the making of those statements clearly implicate an
identifiable violation of law, rule, or regulation, id., disclosure (5) falls short of
this broad standard. Further, a disinterested observer could not reasonably
conclude that this disclosure evidenced any other category of wrongdoing listed
in 5 U.S.C. § 2302(b)(8).
¶23 Regarding disclosure (6), that the Secret Service paid for A.J.’s membership
in a private gym, as previously noted, the appellant informed the fact-finders that
the HFO had 10 revolving memberships at a private gym even though there was a
gym at the HFO. IAF1, Tab 8, Vol. 6, Agency File, Part 4 at 43. We agree with
the administrative judge that the private gym memberships were not a gross waste
of funds, nor did they evidence an abuse of authority or gross mismanagement.
ID at 20-21. As the appellant acknowledged during her hearing testimony, SAs
are required to meet physical fitness standards, the private gym had facilities in
locations within the HFO’s jurisdiction that SAs could use during foreign travel,
and the 10 memberships cost a total of about $5,000.00 per year. HT at 29-31.
Given these circumstances, the expenditure on the gym memberships was not
14
“significantly out of proportion to the benefit reasonably expected to accrue to
the government” and, thus, we find that it was not a gross waste of funds.
¶24 We also agree with the administrative judge that, as SAIC of the HFO, A.J.
had the discretion to obligate the gym memberships and that the appellant simply
disagreed with A.J. about the value of having such memberships when there was
a gym available to HFO employees at no charge. ID at 21. Thus, a disinterested
observer with knowledge of the facts known to the appellant could not reasonably
believe that the gym memberships evidenced an abuse of authority or gross
mismanagement.
¶25 Disclosures (7)-(9) involve A.J.’s decisions not to obtain the following
equipment and resources for the HFO: search warrant breaching tools (disclosure
(7)); access to Hawaii DMV records (disclosure (8)); and police lights and sirens
for the 10 GOVs in the HFO’s fleet without them (disclosure (9)). The
appellant’s disclosures do not reveal anything more than the questioning of
management decisions that are merely debatable. Therefore, we agree with the
administrative judge that a reasonable person could not find that the decisions
described in these disclosures constituted gross management.
¶26 We also agree with the administrative judge that these disclosures did not
evidence a danger to public safety. Disclosures regarding danger to the public
must be both substantial and specific to be protected. Miller v. Department of
Homeland Security, 111 M.S.P.R. 312, ¶ 6 (2009). Factors to be considered in
determining if a disclosed danger is sufficiently substantial and specific to be
protected include the likelihood of harm, when the alleged harm may occur, and
the potential consequences of the harm. Id. Disclosure of an imminent event is
protected, but disclosure of a speculative danger is not. Id.
¶27 Regarding the breaching tools, the administrative judge noted that M.M.
testified that SAs worked with local law enforcement in executing search
warrants when breaching tools were necessary, and local police usually had such
tools. ID at 22 (citing HT at 234-35). Similarly, the appellant acknowledged in
15
her testimony that on the two occasions when agents in the HFO needed
breaching tools, they borrowed them from another agency and successfully
executed the search warrants. HT at 33. In light of this testimony, we agree with
the administrative judge that the appellant, at most, disclosed a speculative
danger with little likelihood of harm. ID at 22-23. Thus, we find that disclosure
(7) was not protected as a disclosure of a danger to public safety.
¶28 We also agree with the administrative judge that the appellant’s complaint
regarding the lack of lights and sirens on 10 GOVs in the HFO’s fleet (disclosure
(9)), at most, disclosed a speculative danger. ID at 24. As the administrative
judge noted, the appellant acknowledged that emergencies were not routine and
she provided no information identifying a substantial and specific danger that
could result from not having every GOV equipped with lights and sirens. ID at
24 (citing HT at 36). Thus, we find that this disclosure was not protected as a
disclosure of a danger to public safety.
¶29 Regarding disclosure (10), that the geographic boundaries of the Secret
Service’s districts required reevaluation because the Honolulu district is too
large, thereby resulting in excessive travel expenses, the purchase of
business-class airline tickets, and excessive overtime expenses, we agree with the
administrative judge that this complaint was not a protected disclosure. ID at
25-26. In making this finding, the administrative judge noted that the decision
regarding how best to define the geographic boundaries of the agency’s districts
was within the discretion of agency officials overseeing the agency’s operations
on a global scale. ID at 25. Although the appellant disagreed with the way in
which the districts were defined, she did not show that a disinterested observer
could reasonably believe that the way in which the agency defined its geographic
districts created a substantial risk of adverse impact on the agency’s ability to
accomplish its mission, or evidenced any other category of wrongdoing set forth
in 5 U.S.C. § 2302(b)(8). Further, it is unclear, and the appellant does not
16
explain, how the size of the Honolulu district resulted in the purchase of
business-class airline tickets.
¶30 Regarding disclosure (12), that the HFO’s administrative personnel were
not properly cross-trained, the administrative judge found that a reasonable
person could not believe the lack of cross-training evidenced a violation of a law,
rule, or regulation, an abuse of authority, or gross mismanagement. ID at 27.
Rather, the administrative judge found that the appellant pointed out
inefficiencies and suggested improving the functioning of the office by
cross-training the administrative staff. ID at 27. We agree with the
administrative judge. Although the failure to cross-train the HFO’s
administrative personnel arguably reduced the HFO’s efficiency, the appellant did
not prove that a disinterested observer could reasonably believe that the lack of
cross-training created a substantial risk of significant adverse impact upon the
agency’s ability to accomplish its mission. Consequently, we find that the
appellant’s complaint about lack of cross-training among the HFO’s
administrative personnel was not a protected disclosure of gross mismanagement,
nor was it a protected disclosure of any other category of wrongdoing identified
in 5 U.S.C. § 2302(b)(8).
¶31 Regarding disclosure (15), that A.J. allowed FSNs working for the Secret
Service’s offices in Hong Kong and Bangkok to use GOVs for their HTW
transportation, the administrative judge found that the appellant did not prove
that she reasonably believed that allowing FSNs to use GOVs violated a law, rule,
or regulation, or evidenced any other category of wrongdoing. ID at 29. The
statutory provision governing the use of GOVs for HTW transportation,
31 U.S.C. § 1344, generally prohibits such use unless it is for an “official
purpose.” 12 The Secret Service’s policy governing the use of GOVs for HTW
12
Pursuant to 31 U.S.C. § 1344(a)(2), HTW transportation, when approved in writin g
by an agency head, is for an official purpose when such transportation is: (A) required
for the performance of field work, or (B) essential for the safe and efficient
17
transportation—the HTW Transportation Determination Plan—is set forth in
Agency Directive Section AOD-04(03) of the Secret Service’s Administrative
Manual [AOD-04(03)], entitled “Home To Work Driving Authority.” See IAF2,
Tab 16, Vol. 5 at 410-18. The plan, which was approved by the Secretary of the
Treasury, authorizes the use of GOVs for HTW transportation by designated
personnel in specific categories, including employees designated for off-duty or
emergency response, such as physical security specialists and structural
engineers. Id. at 410-11.
¶32 In support of her finding that this disclosure was not protected, the
administrative judge noted the following: M.M. testified that FSNs were
designated as off-duty or emergency response personnel within the meaning of
the policy, ID at 29; the appellant acknowledged during her testimony that the
FSNs might have to assist Secret Service employees by responding to emergency
situations, ID at 28-29 (citing HT at 44-45); and when the appellant brought the
issue to A.J.’s attention, he explained that the FSNs’ use of the vehicles was in
full compliance with policy, and had been approved by the INV, ID at 28 (citing
IAF1, Tab 5, Vol. 3 at 240, 317; IAF2, Tab 16, Vol. 5 at 425).
¶33 Under the statute, however, the test for a protected disclosure is whether the
appellant had a reasonable belief that she was disclosing a violation of law, rule,
or regulation when she made the disclosure, not in light of events or
conversations occurring thereafter. See Webb, 122 M.S.P.R. 248, ¶ 13 (citing
5 U.S.C. § 2302(b)(8)). The record shows that A.J. did not notify the appellant
that the FSNs’ use of the vehicles was in full compliance with agency policy and
had been approved by the INV until January 9, 2009, i.e., 4 days after she made
this disclosure during her interview with the fact-finders. See IAF1, Tab 5, Vol.
3 at 240, Tab 8, Vol. 6, Agency File, Part 4 at 42, 45. Thus, it appears that the
appellant was not aware of this information at the time of her disclosure.
performance of intelligence, counterintelligence, protective services, or criminal law
enforcement duties.
18
¶34 Moreover, AOD-04(03) states that the policy governing the use of GOVs
for HTW transportation applies to all employees and offices of the Secret
Service. See IAF2, Tab 16, Vol. 5 at 410. Although the appellant acknowledged
during the hearing that FSNs might have to assist Secret Service employees by
responding to emergency situations, see HT at 44-45, she also testified that she
believed FSNs were either employees or contract employees of the State
Department, i.e., not the Secret Service. Id. at 44. In light of this testimony, the
scope of the agency policy governing the use of GOVs for HTW transportation,
and the evidence indicating that the appellant was not informed until after her
disclosure that the INV had approved the FSNs’ use of GOVS for HTW
transportation, we find that the appellant reasonably believed that the use of
GOVs for HTW transportation by the FSNs in Hong Kong and Bangkok was a
violation of law, rule, or regulation. Accordingly, we find that disclosure (15)
was protected and modify the initial decision regarding this matter.
The appellant’s disclosures were a contributing factor in the personnel actions.
¶35 To prevail in an IRA appeal before the Board, an appellant must prove by
preponderant evidence that her disclosure was a contributing factor in a personnel
action. Chavez, 120 M.S.P.R. 285, ¶ 27. The term “contributing factor” means
any disclosure that affects an agency’s decision to threaten, propose, take, or not
take a personnel action with respect to the individual making the disclosure.
Usharauli v. Department of Health & Human Services, 116 M.S.P.R. 383, ¶ 31
(2011); 5 C.F.R. § 1209.4(c). The most common way of proving the contributing
factor element is the “knowledge/timing test.” Chavez, 120 M.S.P.R. 285, ¶ 27.
Under that test, an appellant can prove that her disclosure was a contributing
factor in a personnel action through 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. Id. Once an
appellant has satisfied the knowledge/timing test, she has demonstrated that a
19
protected disclosure was a contributing factor in a personnel action. Gonzalez v.
Department of Transportation, 109 M.S.P.R. 250, ¶ 20 (2008).
¶36 Regarding the knowledge prong of the knowledge/timing test, the record
reflects that at least two agency officials involved in the selections at issue in
these appeals 13 were aware of the appellant’s whistleblowing disclosures and/or
protected activities. Specifically, P.M. was a member of the board and, for two
of the selections at issue in this appeal (the December 2011 selections for the
London RAIC and Rome ASAIC positions), C.M. represented an AD on the board
because that AD was unavailable at that time. IAF1, Tab 8, Vol. 6, Agency File,
Part 3 at 102-03; HT at 75-76. As the administrative judge found, P.M. was
aware of the appellant’s disclosures and her grievance, in which she alleged
reprisal for those disclosures, because he was the agency official who denied her
grievance. ID at 32 (citing IAF1, Tab 5, Vol. 4 at 505); see IAF1, Tab 5, Vol. 2
13
As explained in the initial decision, the selection process for the positions at issue in
these appeals involved either an advisory board (for the GS-15 lateral assignments) or
the Executive Resources Board (for the SES positions). See ID at 7-8. Both boards
were comprised of the Secret Service’s Deputy Director, Chief of Staff, and the ADs for
its eight directorates. ID at 7, 8 n.6 (citing HT at 130, 335-36). Because the advisory
board and the Executive Resources Board were comprised of the same members, we
will refer to both boards interchangeably as the board, as the admin istrative judge d id in
the initial decision. See ID at 8 n.6. For GS-15 lateral reassignments, employees
indicated their interest in an open assignment on the mainframe computer system, the
AD of the office with responsibility over the vacancy recommended a candidate for
consideration by the board, and, after discussing the recommended candidate and other
candidates who had expressed an interest in the position, the board recommended a
candidate for consideration by the Secret Service’s Director and Deputy Director. ID at
7 (citing HT at 63-64, 66, 76, 142-43; IAF1, Tab 5, Vol. 4 at 484; Tab 8, Vol. 6 at 115).
The Director could concur with the recommendation or select a candidate from a list of
best qualified candidates. ID at 7 (citing IAF1, Tab 8, Vol. 6 at 115). For promotions
from the GS-15 level to the SES level, the board made recommendations to the
Director, who then made the final selection decision. ID at 8. For each of the GS-15
and SES selections at issue in these appeals, the Director concurred with the board’s
recommendations. ID at 7-8.
Regardin g the selection process for the 2012 DHS Fellows Program, as explained in the
in itial decision, the Secret Service did not select the participants for the program. ID at
38. Rather, the participants were selected by a panel of 13 managers from across DHS.
ID at 38 (citing IAF1, Tab 5, Vol. 3 at 366; HT at 433).
20
at 160-63. The administrative judge also correctly found that C.M. knew about
the appellant’s disclosures and protected activities because he received the
written summary of the 2009 fact-finding investigation, which detailed the
appellant’s disclosures, he was the proposing and deciding official for the
appellant’s 1-day suspension, and he acknowledged during his testimony that he
was aware of the appellant’s OSC complaint and the Board appeal challenging
her suspension. ID at 31-32 (citing HT at 86-87, 90); see IAF1, Tab 5, Vol. 2 at
129-31, 157-58.
¶37 Turning to the timing prong of the knowledge/timing test, the administrative
judge found that the agency’s nonselection decisions and other personnel actions
occurred within a period of time such that a reasonable person could conclude
that the disclosures were a contributing factor in the personnel actions. ID at 32
(citing Redschlag v. Department of the Army, 89 M.S.P.R. 589, ¶ 87 (2001)
(finding that the appellant’s disclosures were a contributing factor in her removal
when they were made approximately 21 months prior).
¶38 We agree. As noted above, the appellant made her disclosures in January
2009, filed the grievance of her suspension in August 2009, and filed the IRA
appeal challenging her suspension in December 2010. The first of the personnel
actions at issue in these appeals, her reassignment to the Fusion Center, occurred
in January 2010, and the first of the nonselections at issue occurred in December
2010, when her successor as ASAIC of the HFO was selected as SAIC of the
HFO. See IAF1, Tab 5, Vol. 3 at 432. The Board has 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). Thus, we discern no reason to disturb the
administrative judge’s finding that the appellant has proven that her disclosures
were a contributing factor in each personnel action at issue.
21
The agency proved by clear and convincing evidence that it would have taken the
same actions in the absence of the appellant’s whistleblowing.
¶39 Because the appellant met her burden to establish a prima facie case of
whistleblowing, the burden shifted to the agency to prove by clear and convincing
evidence that it would have taken the same personnel actions in the absence of
her whistleblowing. See Jenkins v. Environmental Protection Agency,
118 M.S.P.R. 161, ¶ 16 (2012). In determining whether an agency has met this
burden, the Board will consider the following 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 the agency officials who were involved in the
decision; and (3) any evidence that the agency takes similar actions against
employees who are not whistleblowers but who are otherwise similarly situated.
Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999);
Azbill v. Department of Homeland Security, 105 M.S.P.R. 363, ¶ 17 (2007).
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).
A. The strength of the agency’s evidence in support of its actions.
¶40 The Board has recognized that the first of the three Carr factors, set forth
above, does not apply straightforwardly when, as here, the personnel action is not
disciplinary and, therefore, does not require supporting evidence of misconduct.
See Azbill, 105 M.S.P.R. 363, ¶ 18. As the administrative judge noted, in such
circumstances, the Board considers the broader question of whether the agency
had legitimate reasons for its action when addressing the strength of the agency’s
evidence in support of its action. ID at 33 (citing Azbill, 105 M.S.P.R. 363, ¶ 18,
and Gonzales v. Department of the Navy, 101 M.S.P.R. 248, ¶ 12 (2006)).
¶41 Regarding the first Carr factor, the administrative judge found that the
agency’s evidence in support of its actions was strong. ID at 46. In making this
22
finding, the administrative judge considered the hearing testimony and
documentary evidence regarding each of the personnel actions at issue in these
appeals. 14 See ID at 33-46. The administrative judge found that agencies have
wider latitude to use subjective criteria when filling managerial positions,
especially at the SES level. ID at 46. The administrative judge concluded that,
because the positions at issue are high-level leadership positions involving a great
deal of discretion, trust, and responsibility, the agency’s use of subjective
criteria, such as leadership and interpersonal skills, does not detract from the
strength of its evidence. Id.
¶42 The administrative judge further found that the agency explained in detail
its reasons for selecting other candidates instead of the appellant, and that these
reasons were legitimate. ID at 46. In that regard, the administrative judge noted
that A.S., who was AD of the INV from January 2010 until April 2012, when he
became Deputy Director of the Secret Service, testified that the appellant had a
protection assignment with President Ronald Reagan, but she had no supervisory
experience on a protective detail nor did she have any specialized skills, technical
ability, or specialized computer skills, experience with an Electronic Crimes Task
Force, or other cyber-related experience. ID at 46-47 (citing HT at 402-03); see
ID at 35 (citing IAF1, Tab 5, Vol. 4 at 482, Tab 8, Vol. 6, Agency File, Part 3 at
5; HT at 368, 370)). In addition, the administrative judge noted that the board
members had the following concerns about the appellant’s ability to hold an SES
position: (1) she did not manage agency employees in her position at the Fusion
14
With the exception of the appellant’s assignment to the Fusion Center, all of the
personnel actions at issue in this appeal involve selection decisions; namely, the
decisions not to select the appellant for various positions or for the 2012 DHS Fellows
Program. Regarding the Fusion Center assignment, the administrative judge found that
the agency proved by clear and convincing evidence that it would have reassigned the
appellant to the Fusion Center even absent her protected disclosures, as the agency’s
action was in response to decisions that the appellant made for personal reasons, not in
response to her whistleblowing. ID at 34. The appellant does not challen ge th is finding
on review, and we see no reason to reexamine it.
23
Center; (2) she had declined a stepping stone position in headquarters15; and
(3) she had “issues” while employed at the HFO. ID at 47.
¶43 As noted above, our reviewing court has provided guidance that a proper
analysis of the clear and convincing evidence issue requires that all the evidence
be weighed together; i.e., both the evidence that supports the agency’s case and
the evidence that detracts from it. Whitmore, 680 F.3d at 1368. Consistent with
this guidance, the administrative judge here considered that the appellant’s
“issues” related at least in part to her complaints about A.J. and the HFO’s
Administrative Officer, which included her protected disclosures. ID at 47
(citing Whitmore, 680 F.3d at 1368). The administrative judge found, however,
that the appellant’s issues also included her inappropriate comments about A.J.’s
age, her misuse of confidential funds, her discipline for those matters, and other
information provided by HFO employees during the fact-finding investigation,
which called into question her judgment and leadership skills. ID at 47 (citing
IAF1, Tab 8, Vol. 6, Agency File, Part 4 at 42-75). In addition, as the
administrative judge noted, the evidence showed that the agency’s concerns
regarding the appellant’s management skills predated her protected disclosures
and protected activities, as the appellant’s supervisor documented his concerns
with her interpersonal skills and diplomacy when dealing with employees in
2006-2007. 16 ID at 47 (citing IAF2, Tab 15 at 48 (page number generated by fax
machine)). In sum, the administrative judge found little persuasive evidence
suggesting that the appellant’s protected disclosures or activities resulted in the
15
In September 2012, P.M. offered the appellant the GS-15 position of DAD of the
ADM, wh ich the appellant declined for personal reasons. See IAF 1, Tab 5, Vol. 3 at
395. The person who occupied that position after the appellant declined it was
promoted directly from that position to one of the SES appointments at issue. See
IAF2, Tab 6 at 80.
16
The appellant’s supervisor during th is time frame was the then-DAD of the Office of
Protective Operations. See IAF2, Tab 15 at 48 (page number generated by fax
machine).
24
concerns expressed by the board regarding her ability to manage people in a
high-level management or executive position. ID at 47.
¶44 In assessing the strength of the agency’s evidence, the administrative judge
also considered the appellant’s claim that the agency engaged in actions that
showed a pattern of reprisal. See ID at 48-49. The actions cited by the appellant
in support of this claim included the denial of her request to attend training
events, ID at 48 (citing IAF1, Tab 5, Vol. 3 at 370), and the authorization of the
fact-finding investigation which, she contended, did not conform to the Human
Resources and Training Manual, Investigation of Alleged Employee Misconduct,
ID at 49 (citing IAF2, Tab 21 at 16).
¶45 The administrative judge found that these events did not demonstrate a
pattern of reprisal against the appellant. ID at 49. Rather, the administrative
judge found that the record showed that the appellant was regarded as a valued
employee. ID at 49. To that end, the administrative judge noted that, among
other things, the agency awarded the appellant an assignment she requested in
2009, released her from that assignment at her request, assisted her in locating a
GS-15 position in Honolulu, and offered her a position as DAD of the ADM in
2012. ID at 49.
¶46 Although the administrative judge did not make any explicit credibility
determinations, she clearly credited the agency officials’ testimony, regarding
their reasons for selecting other candidates instead of the appellant, by finding
that those reasons were legitimate and that the agency’s evidence in support of its
selection decisions was strong. See ID at 46. The appellant challenges these
implied credibility findings on review, alleging that, during their testimony,
agency officials “made stories” about their reasons for recommending other
candidates instead of her and made statements about her that were untrue. See
generally PFR File, Tab 1 at 13-19. In particular, the appellant alleges that A.S.,
who recommended the candidates who were ultimately selected for the London
RAIC and Rome ASAIC positions in December 2011, “made stories” about why
25
he recommended those candidates, and she asserts that A.S.’s recommendations
were “biased.” Id. at 13-14. Similarly, she argues that M.M. and another
selecting official, the TEC AD, “made stories” regarding why another candidate
was selected for the SAIC-TSD position in August 2012. Id. at 15. She also
alleges that, during his testimony regarding the selection for the SAIC-TSD
position, M.M. “made a story” about her conduct during her tenure as the Paris
Field Office (PFO) ASAIC when he stated that she was disruptive in the PFO and
with foreign counterparts in Belgium. Id.
¶47 The Board will not disturb an administrative judge’s findings when she
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions of credibility. See Crosby v. U.S. Postal Service,
74 M.S.P.R. 98, 105-06 (1997); see also Broughton v. Department of Health &
Human Services, 33 M.S.P.R. 357, 359 (1987). The Board must give deference to
an administrative judge’s credibility determinations when they are based,
explicitly or implicitly, on the observation of the demeanor of witnesses
testifying at a hearing, and may overturn such determinations only when it has
“sufficiently sound” reasons for doing so. 17 Haebe v. Department of Justice,
288 F.3d 1288, 1301 (Fed. Cir. 2002); see McCarthy v. International Boundary &
Water Commission, 116 M.S.P.R. 594, ¶ 45 (2011) (in a whistleblower reprisal
case, the Board is required to apply appropriate deference to an administrative
judge’s credibility findings consistent with the principles contained in Haebe),
aff’d, 497 F. App’x 4 (Fed Cir. 2012).
¶48 The appellant has set forth no evidence to support her assertions or
otherwise substantively challenge the administrative judge’s implied credibility
17
A noted above, the administrative judge did not make any explicit cred ibility
determinations in the initial decision. A fortiori, she did not make any explicit
demeanor-based credibility determinations. Nonetheless, she heard live testimony and
her implied credibility determinations must be deemed to be at least implicitly based
upon witness demeanor. Little v. Department of Transportation, 112 M.S.P.R. 224, ¶ 4
(2009).
26
findings. These assertions are thus mere disagreement with the administrative
judge’s implied credibility determinations and, as such, provide no basis to
disturb the initial decision.
¶49 On review, the appellant also reasserts her argument from below that the
January 2009 fact-finding investigation was improper because it did not comply
with the Secret Service’s manual regarding investigations of employee
misconduct. PFR File, Tab 1 at 5; IAF2, Tab 21 at 16-17. She further asserts
that no witnesses were placed under oath during the interviews conducted as part
of the investigation, none of the interviews were recorded, no one was allowed to
read the reports of the interviews, and there were no stated consequences for any
untruthful information or statements. PFR File, Tab 1 at 6.
¶50 However, the record indicates that the appellant supported C.M.’s decision
to conduct an investigation. See IAF1, Tab 5, Vol. 3 at 306 (December 19, 2008
email from the appellant thanking C.M. for his “arranging the ‘fact finders’”).
Although she is now clearly dissatisfied with the results of the investigation, her
objections provide no reason to disturb the initial decision.
B. Evidence of the agency’s motive to retaliate.
¶51 Turning to the second Carr factor—the existence and strength of any
retaliatory motive on the part of the officials who were involved in the decision in
question—the administrative judge noted that there were multiple agency
officials who testified that the appellant’s whistleblowing did not allege
wrongdoing on their part, did not implicate them, and they were not disciplined
as a result of her disclosures. ID at 49 (citing HT at 97, 154-55, 279-80, 236,
323-24, 400-01, 424-25). The administrative judge found, however, that the
appellant’s whistleblowing did implicate these individuals to some extent, as they
were high-level management officials of the Secret Service. ID at 49-50 (citing
Phillips v. Department of Transportation, 113 M.S.P.R. 73, ¶ 23 (2010) (finding
that comments generally critical of the agency’s leadership would reflect poorly
on officials responsible for monitoring the performance of the field staff and
27
making sure that agency regulations are carried out correctly and consistently));
see Chambers, 116 M.S.P.R. 17, ¶ 69 (finding motive to retaliate because the
appellant’s disclosures reflected on the responsible agency officials as
representatives of the general institutional interests of the agency). The
administrative judge also noted that C.M. had issued the 1-day suspension that
was the subject of both the appellant’s first IRA appeal and her August 2009
grievance. ID at 50. Therefore, the administrative judge found that there was
some motive to retaliate on the part of the agency officials involved in the
selection decisions. ID at 50.
¶52 The administrative judge found, however, that A.J. seemed to be the
individual with the most motive to retaliate because he was the subject of the
appellant’s disclosures and other complaints and, presumably, he was verbally
counseled regarding some of those matters. ID at 50; see IAF1, Tab 5, Vol. 2 at
118-22. By contrast, the appellant’s disclosures were not aimed at the agency’s
higher-level management officials who sat on the board, nor were they highly
critical of the agency’s leadership. ID at 50. Therefore, as the administrative
judge found, although the board members and C.M. had some motive to retaliate
based on their positions in leadership, they did not have a high level of motive to
retaliate, as A.J. may have had. ID at 50. In addition, the administrative judge
found that there was little evidence to support the appellant’s claim that A.J. was
a close personal friend of some of the board members, or that these purported
friendships influenced the board’s selection decisions. ID at 51.
¶53 On review, the appellant does not specifically address the administrative
judge’s findings that the agency officials involved in her selection decisions had
some motive to retaliate, but that their motive was not as strong as that of A.J.,
nor does she challenge the administrative judge’s findings that there was little
evidence that A.J. influenced the board members in their selection decisions.
Based on our examination of the record, we find no reason to disturb the
administrative judge’s findings regarding the second Carr factor.
28
C. The agency’s treatment of similarly-situated nonwhistleblowers.
¶54 Regarding the third Carr factor, the administrative judge noted that there
was little record evidence regarding the agency’s treatment of similarly-situated
nonwhistleblowers. ID at 51. This factor has obvious relevance when the action
in question is a disciplinary action, i.e., when the appellant claims he was
punished or punished more harshly than nonwhistleblowers who were not
punished or punished more leniently. It has much less relevance when, as here,
the contested action is a nonselection, as it would be highly unlikely that the
selectee would also have made protected disclosures. Consequently, the third
Carr factor is not a significant factor in our analysis.
¶55 The record reflects that the administrative judge in this case considered the
relevant evidence as a whole under the Whitmore standard, made findings of fact
and credibility determinations supported by the record, and concluded that the
agency proved by clear and convincing evidence that it would have made the
same selection decisions even in the absences of the appellant’s protected
disclosures. ID at 32-51. We find that the appellant has set forth no basis on
review to disturb these findings.
The administrative judge did not abuse her discretion by denying the appellant’s
witness requests.
¶56 Although her argument is somewhat unclear, the appellant appears to
contend on review that the administrative judge improperly denied her witness
requests for two agency officials. 18 PFR File, Tab 1 at 9, 17; see IAF2, Tab 14 at
7-8, 25, 30-31. We disagree. An administrative judge has wide discretion to
control the proceedings, including the authority to exclude testimony he believes
would be irrelevant, immaterial, or unduly repetitious. Sanders v. Social Security
18
The appellant also seems to assert that two other individuals should have been
allowed as witnesses. See PFR File, Tab 1 at 14, 16. However, the appellant’s apparent
contention that these individuals should have been allowed to testify is unavailing
because the appellant did not request either of them as a witness during the proceedings
below.
29
Administration, 114 M.S.P.R. 487, ¶ 10 (2010). The Board will not disturb an
administrative judge’s decision to deny a party’s proposed witnesses unless such
denial constitutes an abuse of discretion. Dangerfield v. U.S. Postal Service,
77 M.S.P.R. 678, 684-85 (1998). The administrative judge disapproved these
agency officials as witnesses based on her finding that they did not appear to
have testimony that was relevant to the accepted issues and/or their testimony
appeared to be duplicative of other witnesses. IAF2, Tab 26 at 1. We discern no
abuse of discretion by the administrative judge in denying the appellant’s witness
requests for those reasons. In any event, the appellant did not timely object to the
administrative judge’s ruling denying these agency officials as witnesses and,
therefore, is precluded from doing so on review. See Tarpley v. U.S. Postal
Service, 37 M.S.P.R. 579, 581 (1988).
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 further review of this final decision. There are several options for further
review set forth in the paragraphs below. You may choose only one of these
options, and once you elect to pursue one of the avenues of review set forth
below, you may be precluded from pursuing any other avenue of review.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination claims
by the Equal Employment Opportunity Commission (EEOC). See Title 5 of the
United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit
your request 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
30
If you submit your request 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, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. 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.
Other Claims: Judicial Review
If you do not want to request review of this final decision concerning your
discrimination claims, but you do want to request review of the Board's decision
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without regard to your discrimination claims, you may request review of this final
decision on the other issues in your appeal by the United States Court of Appeals
for the Federal Circuit.
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 described in 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 by 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.
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
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
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respective websites, which can be accessed through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.