The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DORETHA MCDELL, DOCKET NUMBER
Appellant, DA-1221-14-0341-W-1
v.
DEPARTMENT OF THE ARMY, DATE: June 3, 2015
Agency.
THIS ORDER IS NO NPRECEDENTIAL 1
Henry Mesa, El Paso, Texas, for the appellant.
John Lyslaught, Fort Bliss, Texas, for the appellant.
Betty Baxter, Esquire, and Therese M. Novell, Esquire, Warren, Michigan,
for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction. For the reasons discussed below, we
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
GRANT the appellant’s petition for review and REMAND the case to the regional
office for further adjudication in accordance with this Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant, a Contract Procurement Analyst, filed an individual right of
action (IRA) appeal claiming that she disclosed alleged contracting and
procurement improprieties to the Office of the Inspector General (IG), agency
attorneys, a member of Congress, and the Government Accountability Office
(GAO). Initial Appeal File (IAF), Tab 1. She asserts that in retaliation for her
disclosures, the agency issued her a lower performance rating than she deserved,
failed to select her for promotion, excluded her from some staff meetings, and
denied her training opportunities. Id.
¶3 The administrative judge found that the appellant had exhausted her
administrative procedures before the Office of Special Counsel (OSC) regarding
some of her alleged protected disclosures and had made a nonfrivolous allegation
that she made disclosures protected under 5 U.S.C. § 2302(b)(8). IAF, Tab 15,
Initial Decision (ID) at 5-6. However, the administrative judge found that the
appellant failed to make a nonfrivolous allegation that any official who took the
personnel actions against her had knowledge of her disclosures. ID at 6-8. On
that basis, he dismissed the appeal for lack of jurisdiction.
¶4 In her petition for review, the appellant asserts that the administrative judge
failed to consider all of her submissions on the jurisdictional issue. Petition for
Review (PFR) File, Tab 1. Generally, to establish jurisdiction over an IRA
appeal regarding activity protected under 5 U.S.C. § 2302(b)(8), an appellant
must prove that she exhausted her administrative remedies before OSC and make
nonfrivolous allegations that (1) she engaged in whistleblowing activity by
making a protected disclosure under 5 U.S.C. § 2302(b)(8), and (2) the disclosure
was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a). Yunus v. Department of
3
Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001); Rusin v. Department of
the Treasury, 92 M.S.P.R. 298, ¶ 12 (2002). The question of whether the
appellant has made a nonfrivolous allegation of fact is determined based on the
written record, without holding a hearing. Boechler v. Department of the
Interior, 109 M.S.P.R. 638, ¶ 6 (2008).
¶5 We agree with the administrative judge that the appellant established
through her written submissions she exhausted administrative procedures before
OSC regarding her disclosures to the IG and agency attorneys. ID at 5-6. We
also agree that the appellant made a nonfrivolous allegation that she had a
reasonable belief that, in her complaint to the IG, which referenced her
communications to agency attorneys, she disclosed that an employee at the
agency was preselecting contractors or providing an unfair advantage to favored
contractors, a protected disclosure under 5 U.S.C. § 2302(b)(8). ID at 5-6.
¶6 However, we disagree with the administrative judge’s conclusion that the
appellant failed to make a nonfrivolous allegation that her alleged protected
disclosures were a contributing factor to the manager’s decisions to give her a
lowered performance rating, deny her a promotion, give her a reduced workload,
and deny her training opportunities. To satisfy the contributing factor criterion,
an appellant need only raise a nonfrivolous allegation that the fact or content of
the protected disclosure was one factor that tended to affect the personnel action
in any way. Mason v. Department of Homeland Security, 116 M.S.P.R. 135, ¶ 26
(2011). One way to establish this criterion is the knowledge-timing test, under
which an employee may nonfrivolously allege that the disclosure was a
contributing factor in a personnel action through circumstantial evidence, such as
evidence that the official 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 action. Id.
4
¶7 As noted, the administrative judge found that the appellant failed to make a
nonfrivolous allegation that her supervisors had any knowledge of her
whistleblowing disclosures. ID at 7-8. A careful reading of the appellant’s
submission, however, supports a different conclusion. In her January 17, 2013
email to the IG, the appellant states “I communicated to my immediate (first)
supervisor . . . that I have reported incidences to [agency] lawyers.” IAF, Tab 13.
Read broadly, the appellant’s statement indicates that she told her supervisor of
the alleged incidents of an employee at the agency preselecting contractors or
providing an unfair advantage to favored contractors, the allegations that the
appellant made to the agency lawyers and incorporated into her IG complaint.
Under these circumstances, we find that the appellant has satisfied the knowledge
prong of the knowledge-timing test. See Kinsey v. Department of the
Navy, 107 M.S.P.R. 426, ¶ 18 (2007). Further, because some or all of the
personnel actions taken against the appellant occurred shortly after she made her
disclosures, we find that she also satisfied the timing prong of the knowledge-
timing test. See Agoranos v. Department of Justice, 119 M.S.P.R. 498, ¶ 23
(2013) (the issuance of an alleged retaliatory performance evaluation within 2
years of an alleged protected disclosure occurred within a period of time such that
a reasonable person could conclude that the disclosure was a contributing factor
in the lowered performance rating).
¶8 Therefore, we conclude that the appellant has made a nonfrivolous allegation
of whistleblower reprisal in connection with some or all of the personnel actions
that she identified, and we remand this appeal. 2 On remand the administrative
judge shall afford the appellant the hearing that she requested. IAF, Tab 1;
2
Because we find that the appellant has made a nonfrivolous allegation that her alleged
protected disclosures were a contributing factor in the agency’s decision concerning at
least one of the personnel actions at issue, we find that she has met her jurisdictional
burden. On remand, the administrative judge shall make findings as to the merits
regarding which personnel action(s) is/are properly before the Board upon further
development of the record.
5
Aquino v. Department of Homeland Security, 121 M.S.P.R. 35, ¶ 9 (2014) (an
appellant who meets her jurisdictional burden is entitled to a hearing on the
merits in an IRA appeal).
¶9 With her petition for review, the appellant submits for the Board’s
consideration a number of documents and emails that she did not submit below.
PFR File, Tab 1. Under 5 C.F.R. § 1201.115, the Board will not consider
evidence submitted for the first time with the petition for review absent a showing
that it was unavailable before the record was closed despite the party’s due
diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). All of
the items that the appellant submits with her petition are dated prior to the
issuance of the initial decision. PFR File, Tab 1. We have not considered the
appellant’s submissions on petition for review because she has failed to show that
they were unavailable before the record was closed despite her due diligence.
However, the appellant may submit these documents into the record on remand.
¶10 In her petition, the appellant also asserts that the administrative judge erred in
denying her discovery. PFR File, Tab 1. The acknowledgment order notified the
appellant of the availability of discovery. IAF, Tab 2 at 3. Apparently, the
appellant submitted a copy of her discovery request to the administrative judge.
IAF, Tab 10. The administrative judge rejected the document, informing the
appellant that, except as an attachment to a motion to compel, it is unnecessary to
serve the Board with a discovery request. Id. The appellant has not shown that
the administrative judge erred regarding discovery, especially given that there is
no evidence that the agency did not respond to the appellant’s discovery request
3
and given the appellant’s failure to file a motion to compel discovery. See
3
The appellant alleges that the administrative judge was biased. Her assertions appear
to be mere disagreement with the administrative judge’s findings. Such disagreement
does not demonstrate bias. See Wood v. Department of the Navy, 43 M.S.P.R. 24, 30
(1989); see also Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386 (1980)
(in making a claim of bias or prejudice against an admin istrative judge, a party must
6
Coleman v. Department of the Army, 106 M.S.P.R. 436, ¶ 8 (2007). On remand,
however, the appellant will have an additional opportunity to engage in
discovery.
ORDER
¶11 For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
overcome the presumption of honesty and integrity that accompanies administrative
adjudicators).