The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEE JOHNSON, DOCKET NUMBER
Appellant, SF-1221-14-0828-W-1
v.
DEPARTMENT OF THE NAVY, DATE: June 4, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Peter B. Broida, Esquire, Arlington, Virginia, for the appellant.
Tracey Rockenbach, Esquire, Washington Navy Yard, D.C., 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 for alleged whistleblower reprisal.
Generally, we grant petitions such as this one only when: the 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellant serves as a contract and procurement attorney for the agency.
Initial Appeal File (IAF), Tab 1 at 53. The agency proposed to suspend the
appellant for 5 days based on her involvement in an investigation into allegations
that a contracting officer with whom she worked, and with whom she had a
contentious relationship, harassed an intern. Id. at 53-60. The record reflects that
the appellant contacted the agency’s security office raising concerns about the
contracting officer’s conduct and demeanor toward the intern and that, in
response to her allegations, a security specialist was assigned to conduct an
investigation. Id. at 54. At the security specialist’s request, the appellant
arranged for a meeting between the intern and the security specialist, and together
they interviewed the intern at an offsite location. Id. During the interview, the
intern denied that the contracting officer acted in an inappropriate manner, and,
after the interview concluded, the intern reported the appellant’s conduct to
several agency employees, who in turn informed the appellant’s supervisor. Id.
¶3 The agency conducted its own investigation into the circumstances
surrounding the appellant’s involvement in the offsite interview of the intern, and
it solicited statements from the appellant, the security specialist, and the intern.
Id. at 35-40, 50-51; IAF, Tab 4 at 88-95. In her statement, the intern explained
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that she felt trapped during the interview and that the appellant appeared to lose
patience when she did not complain about the contracting officer’s behavior.
IAF, Tab 4 at 90. Neither the appellant nor the security specialist denied meeting
with the intern offsite, although both denied intimidating the intern during the
meeting. IAF, Tab 1 at 35-40, 50-51.
¶4 Based on these events, the agency proposed to suspend the appellant for
5 days on a charge of notoriously disgraceful conduct. See id. at 53-60. After
receiving an oral response from the appellant, the deciding official reduced the
proposed suspension to 3 days, citing the appellant’s length of service and
rehabilitation potential. Id. at 62-64.
¶5 The appellant thereafter filed a complaint of whistleblower reprisal with the
Office of Special Counsel (OSC), and she subsequently filed the instant
individual right of action (IRA) appeal challenging her suspension. IAF, Tab 1.
The appellant withdrew her request for a hearing, see IAF, Tab 15, and, based on
the written record, the administrative judge found that the appellant established
jurisdiction over her IRA appeal, but he denied the appellant’s request for
corrective action on the merits, finding that the agency proved by clear and
convincing evidence that it would have taken the same action in the absence of
the appellant’s protected whistleblowing, see IAF, Tab 26, Initial Decision (ID).
Specifically, the administrative judge found that the appellant established by
preponderant evidence that she made a protected disclosure concerning an alleged
violation of the agency’s standards of conduct for employees based on the
contracting officer’s actions toward the intern and that the deciding official who
imposed her suspension was aware of her disclosure because she raised it in her
response to the proposed suspension. ID at 4-6. The administrative judge found,
however, that the strength of the agency’s reasons for taking the action
outweighed the fact that the appellant, but not the security specialist, was
disciplined for her involvement in interviewing the intern and that the agency
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established by clear and convincing evidence that it imposed the suspension based
upon her conduct and not upon her protected disclosure. ID at 7-11.
¶6 The appellant has filed a petition for review arguing that the administrative
judge erred in denying her request for corrective action. Petition for Review
(PFR) File, Tab 1. Specifically, the appellant argues that the agency failed to
prove its charge of notoriously disgraceful conduct and that, if the appellant’s
actions were as egregious as alleged by the agency, the agency also should have
disciplined the security specialist for his involvement in the investigation. Id.
at 10-14, 21. The agency has filed a response in opposition to the petition for
review, and the appellant has filed a reply. PFR File, Tabs 3-4. For the reasons
that follow, we AFFIRM the administrative judge’s denial of corrective action.
¶7 Where, as here, an appellant exhausts her administrative remedy with OSC
and establishes the Board’s jurisdiction in an IRA appeal, the appellant then must
establish a prima facie case of whistleblower retaliation by proving by
preponderant evidence that she made a protected disclosure that was a
contributing factor in a personnel action taken against her. 5 U.S.C. § 1221(e)(1);
Lu v. Department of Homeland Security, 122 M.S.P.R. 335, ¶ 7 (2015). If the
appellant makes this prima facie showing, the burden shifts to the agency to prove
by clear and convincing evidence that it would have taken the same personnel
action in the absence of the protected disclosure. Lu, 122 M.S.P.R. 335, ¶ 7.
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; it is a higher standard than the “preponderance of the evidence”
standard. Sutton v. Department of Justice, 94 M.S.P.R. 4, ¶ 18 (2003), aff’d,
97 F. App’x 322 (Fed. Cir. 2004); 5 C.F.R. § 1209.4(e). 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 the 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
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takes similar actions against employees who are not whistleblowers but who are
otherwise similarly situated. Lu, 122 M.S.P.R. 335, ¶ 7 (citing Carr v. Social
Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999)). The Board does
not view these factors as discrete elements, each of which the agency must prove
by clear and convincing evidence. Rather, the Board will weigh the factors
together to determine whether the evidence is clear and convincing as a whole.
Id.
¶8 Upon review of the record below, we agree with the administrative judge
that the appellant established by preponderant evidence that she reasonably
believed she was disclosing a violation of agency policy when she reported to the
agency’s security office her concerns about the contracting officer’s conduct
toward the intern. ID at 4-5 (citing Reed v. Department of Veterans
Affairs, 122 M.S.P.R. 165, ¶ 17 (2015) (disclosure of failure to follow an agency
handbook is a protected disclosure under section 2302(b)(8)). We further agree
that the appellant established that this disclosure was a contributing factor in her
3-day suspension under the knowledge and timing test because the deciding
official was aware of her disclosure when he decided to impose the suspension,
and his decision was made within a sufficiently close temporal nexus to her
disclosure. ID at 6 (noting that the timing of the decision to impose the 3-day
suspension satisfied the knowledge and timing test). The agency has not
challenged these findings on review, and we find no reason to differ with the
administrative judge’s well-reasoned conclusions. 2
2
We disagree with the appellant’s suggestion on review that the agency’s decision not
to challenge these findings in a cross-petition for review is probative of the ultimate
issue in this appeal, i.e., whether the agency established by clear and convincing
evidence that it would have taken the same personnel action in the absence of the
protected whistleblowing. See PFR File, Tab 4 at 5; see also Shibuya v. Department of
Agriculture, 119 M.S.P.R. 537, ¶ 13 (2013). We assign no weight to the agency’s
decision not to file a cross-petition for review on some of the administrative judge’s
findin gs.
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¶9 We further agree with the administrative judge that the agency established
by clear and convincing evidence that it suspended the appellant for 3 days
because of her involvement in the interview of the intern following her disclosure
and not based upon the disclosure itself. ID at 7-11. In reaching this conclusion,
the administrative judge carefully balanced the Carr factors, and on review the
appellant has presented no basis for us to disagree with his findings that the 3-day
suspension would have occurred in the absence of her protected disclosure.
Specifically, we find no merit to the appellant’s primary argument on review that
the agency failed to prove its charge of notoriously disgraceful conduct by clear
and convincing evidence. See PFR File, Tab 1 at 10. In an IRA appeal, the
Board lacks the authority to adjudicate the merits of the underlying personnel
action; rather, the Board’s jurisdiction is limited to adjudicating the
whistleblower allegations. See Lu, 122 M.S.P.R. 335, ¶ 7. Although the Board
will consider the strength of the agency’s justification for taking the challenged
action as part of the clear and convincing analysis, the Board does not conduct a
merits-based analysis of an agency’s charge of misconduct in an IRA appeal as it
would in an appeal under chapter 75, and we decline to do so here. 3 See, e.g.,
Marren v. Department of Justice, 51 M.S.P.R. 632, 638 (1991), aff’d, 980 F.2d
3
We similarly find unconvincing the appellant’s argument that the Board should
consider why the agency ultimately used a specific charge of m isconduct rather than a
generic conduct unbecoming charge as it had originally considered. See, e.g., PFR File,
Tab 4 at 10 (explaining that “at the last moment” the agency proposed to suspend the
appellant for notoriously disgraceful conduct rather than conduct unbecoming); IAF,
Tab 19 at 95. The Board does not have general jurisdiction to decide the merits of the
underlying personnel action, and it has held this proscription, for example, precludes
the Board from considering alleged due process violations in connection with the
underlying action. See Parikh v. Department of Veterans Affairs, 116 M.S.P.R. 197,
¶ 34 (2011). Where, as here, the appellant did not specifically challenge the agency’s
decision to change the nature of its charge in her OSC complaint, we will not consider
if such a change is a personnel action for purposes of an IRA appeal. See IAF, Tab 1
at 29 (identifying the challenged personnel action as a proposed 5-day suspension,
which the deciding official reduced to 3 days); see also Tucker v. Department of Health
& Human Services, 73 M.S.P.R. 278, 283 (1997) (an employee must specifically inform
OSC of the nature of her charge of wh istleblowing).
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745 (Fed. Cir. 1992) (Table), modified on other grounds by Robinson v. U.S.
Postal Service, 63 M.S.P.R. 307, 323 n.13 (1994).
¶10 We further agree with the administrative judge that, based on the
information available to the agency at the time of the appellant’s suspension, the
agency presented a sufficiently strong reason for taking the personnel action. See
Phillips v. Department of Transportation, 113 M.S.P.R. 73, ¶ 15 (2010); see also
ID at 7-8. We concur with the administrative judge that the agency had a strong
justification for suspending the appellant based upon her involvement in an
interview of an agency intern without supervisory permission at an offsite
location and that her history of personal conflict with the contracting officer, at a
minimum, appears to have played a role in both her reporting the actions of the
contracting officer to the agency’s security office and her involvement in the
interview of the intern. ID at 3, 7-8. The Board has held that, even if an
employee did not actually commit the alleged misconduct upon which the
challenged personnel action is based, it does not necessarily follow that the action
was taken in reprisal for protected whistleblowing. See Phillips, 113 M.S.P.R.
73, ¶ 15 (citing Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1372-73
(Fed. Cir. 2001)). As the administrative judge, we limit our review of the
agency’s explanation for taking the challenged personnel action to whether there
is a sufficiently strong reason for taking the action based on the evidence
available when the action occurred. Id. We agree that the agency had a
sufficiently strong reason for disciplining the appellant due to her involvement in
actions outside of her normal job duties and the lack of confidence the agency had
in her ability to work with the contracting officer following this incident. See
Redschlag v. Department of the Army, 89 M.S.P.R. 589, ¶ 90 (2001) (finding that
the nature of the charges provided a sufficiently strong reason for taking the
challenged action); see also ID at 9 (noting that both supervisory and subordinate
employees lacked trust and confidence in the appellant following the incident).
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¶11 Finally, we find adequate justification in the record for the agency’s having
counseled the security specialist for his involvement in the incident. ID at 10.
Unlike the appellant, who departed from her job duties and responsibilities as a
contract and procurement attorney by participating in the interview of the intern,
the security specialist responded to a report of harassment and acted within his
job duties by interviewing the intern and investigating the claim of harassment.
ID at 10-11. We also agree with the administrative judge that the employees’
different positions of employment within the agency justifies the different levels
of discipline imposed, and we find no reason to differ with the administrative
judge’s conclusion that neither the proposing nor the deciding official had a
strong motive to retaliate against the appellant. ID at 9-11.
¶12 Based on the foregoing, we agree with the administrative judge’s
conclusion that the agency presented clear and convincing evidence that it would
have suspended the appellant even in the absence of her protected disclosure. See
Shibuya, 119 M.S.P.R. 537, ¶ 37 (a proper analysis of the clear and convincing
issue requires all of the evidence to be considered) (citing Whitmore v.
Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012)); see also McCarthy
v. International Boundary & Water Commission, 116 M.S.P.R. 594, ¶ 66 (2011),
aff’d, 497 F. App’x 4 (Fed. Cir. 2012), cert denied, 134 S. Ct. 386 (2013).
Accordingly, the administrative judge’s denial of corrective action is
AFFIRMED.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision 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
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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
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 an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
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at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. 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.