The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THASHA A. BOYD, DOCKET NUMBER
Appellant, AT-1221-15-0008-W-1
v.
DEPARTMENT OF HOMELAND DATE: June 25, 2015
SECURITY,
Agency.
THIS ORDER IS NO NPRECEDENTIAL 1
Thasha A. Boyd, Kennesaw, Georgia, pro se.
Kenneth William, Atlanta, Georgia, 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 individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review and
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
REMAND the case to the regional office for further adjudication in accordance
with this Order.
BACKGROUND
¶2 The appellant filed a complaint with the Office of Special Counsel (OSC) in
which she alleged that the agency would not select her for employment and was
retaliating against her because of her prior disclosures, her status as a perceived
whistleblower, and her ongoing litigation against the agency. 2 Initial Appeal File
(IAF), Tab 6 at 21. In her complaint to OSC, the appellant alleged that, in
May 2010, and April 2011, while she was employed by the Department of Labor
(DOL), she made disclosures of fraud, waste, and abuse. Id. at 22. She stated
that she had been applying for positions with the agency since mid-2012, but that
when she was not selected for employment in 2013, she filed a complaint with
OSC and then a Board appeal. Id. at 23. She further stated that, on March 20,
2014, she received an email from an agency official stating that a panel decided
that she would not be interviewed for a position. Id. She asserted that the agency
had constructive knowledge of both her disclosures and her ongoing litigation
against it. Id. at 24. She added that she previously told one of the supervisors at
the agency that she was not certain when she would be entering on duty due to
issues with her background investigation. Id. The appellant also stated that, after
her background investigation took place, every position she applied for was either
canceled, reannounced, and/or she was not selected. Id. OSC issued a letter to
the appellant stating that she had alleged that the agency failed to select her for
2
In a prior appeal, the appellant alleged that the same agency intentionally delayed and
misused the security clearance process to justify withdrawing its tentative job offer
based upon the perception that she was a whistleblower. Boyd v. Department of
Homeland Security, MSPB Docket No. AT-1221-13-3375-W-1, Initial Decision
(Jan. 13, 2014). After the administrative judge initially d ismissed the case for lack of
jurisdiction, the Board remanded that appeal for a hearing on the merits. I d., Remand
Order (Nov. 24, 2014). The remanded appeal was then consolidated with Boyd v.
Department of Labor, MSPB Docket No. AT-3443-13-7178-B-1. The consolidated
appeal is pending at the regional office.
3
positions based upon disclosures she made as a DOL employee in 2010 and 2011
and informing her of her right to seek corrective action before the Board. IAF,
Tab 1.
¶3 The appellant filed this IRA appeal alleging that the agency retaliated
against her because of her prior disclosures at DOL, her status as a perceived
whistleblower, and her ongoing litigation against the agency. Id. The agency
responded with a motion to dismiss the appeal for lack of jurisdiction. IAF,
Tab 5. The administrative judge granted and denied the agency’s motion in part,
finding that the nonselections from 2012 and 2013 were covered by prior OSC
complaints and that the only subsequent nonselection the appellant identified to
OSC involved the one about which she received notice on March 20, 2014. IAF,
Tab 10 at 2-5. The administrative judge therefore found that only this particular
nonselection was administratively exhausted and he therefore ordered the
appellant to supplement the record by specifically identifying this nonselection.
Id. at 5-6.
¶4 In response to the administrative judge’s order, the appellant filed a motion
for interlocutory appeal, challenging the administrative judge’s order to the extent
that it limited her claims to a single vacancy as well as placed the burden upon
her within a brief time period to obtain further information about the vacancy
mentioned in the March 20, 2014 email. IAF, Tab 11. The administrative judge
denied the motion and extended the appellant’s time to submit evidence
concerning the nonselection, but she did not submit the requested evidence and
instead filed a similar motion for interlocutory appeal. IAF, Tabs 12-13. The
administrative judge again denied the appellant’s motion. IAF, Tab 14. He stated
that the appellant’s failure to provide information about which nonselection she
was attempting to challenge casted doubt on whether she could satisfy her
jurisdictional burden. Id. at 6. He therefore ordered the appellant to show cause
why sanctions should not be imposed based on her failure to provide the
requested argument and/or evidence. Id. He also ordered her to provide
4
argument and/or evidence constituting a nonfrivolous allegation that any
protected disclosure or her status as a perceived whistleblower was a contributing
factor in the agency’s decision not to select her for the particular position about
which she was notified on March 20, 2014. Id. The appellant responded to the
order stating that she was waiting for a decision on her second motion for
interlocutory appeal before initiating discovery. IAF, Tab 15 at 7-10. She also
stated that sanctions were not warranted and that any dismissal of her appeal
should be without prejudice pending the disposition of another appeal at the
United States Court of Appeals for the Federal Circuit. Id.
¶5 The administrative judge issued an initial decision in which he found that
the appellant had exhausted before OSC only the nonselection about which she
received notice on March 20, 2014. IAF, Tab 18, Initial Decision (ID) at 5. The
administrative judge also found that the Board did not have jurisdiction over this
nonselection because the appellant had not alleged facts which, if proven, would
establish that the selecting official either was aware of her prior whistleblower
activity or perceived her as a whistleblower. ID at 9. Lastly, the administrative
judge stated that the appeal equally could have been dismissed as a sanction
based upon the appellant’s willful failure to respond to the Board’s orders. ID
at 9.
¶6 The appellant timely petitioned for review. Petition for Review (PFR) File,
Tab 1. She argued that the administrative judge erred in denying her motions for
interlocutory appeal, that she exhausted before OSC as to the nonselections that
the administrative judge excluded, that sanctions should not have been imposed
because she did not exhibit bad faith and exercised due diligence in pursuing her
appeal, and that she should not have been required to provide additional
information concerning the nonselection mentioned in the March 20, 2014 email
because the agency was in the best position to provide this information. Id.
at 4-12. The agency has responded in opposition to the appellant’s petition. PFR
File, Tab 3.
5
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 Generally, the Board has jurisdiction over an IRA appeal if the appellant
exhausts her administrative remedies before OSC and makes nonfrivolous
allegations 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(a); Yunus v.
Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). However,
an individual who is perceived as a whistleblower is still entitled to
whistleblower protections, even if she has not made protected disclosures. Reed
v. Department of Veterans Affairs, 122 M.S.P.R. 165, ¶ 26 (2015). In such cases,
the issue of whether the appellant actually made protected disclosures is
immaterial; the issue of whether the agency perceived the appellant as a
whistleblower will essentially stand in for that portion of the Board’s analysis in
both the jurisdictional and merits stages of the appeal. King v. Department of the
Army, 116 M.S.P.R. 689, ¶ 8 (2011).
The appellant has exhausted her administrative remedies as to the nonselections
from mid-2012 until the time of her OSC complaint.
¶8 Under 5 U.S.C. § 1214(a)(3), an employee is required to seek corrective
action from OSC before seeking corrective action from the Board. The Board’s
jurisdiction is limited to issues raised before OSC. See Ellison v. Merit Systems
Protection Board, 7 F.3d 1031, 1037 (Fed. Cir. 1993). To meet the exhaustion
requirement, the appellant must provide OSC with a sufficient basis to pursue an
investigation which might have led to corrective action. Briley v. National
Archives & Records Administration, 236 F.3d 1373, 1377 (Fed. Cir. 2001). That
is, the appellant must articulate with reasonable clarity and precision before OSC
the basis of her request for corrective action. Coufal v. Department of
Justice, 98 M.S.P.R. 31, ¶ 14 (2004).
6
¶9 The administrative judge found that the appellant only clearly identified the
nonselection mentioned in the March 20, 2014 email and that this therefore was
the sole nonselection that she exhausted before OSC. ID at 4-5. We disagree.
Instead, we find that the appellant has exhausted before OSC her allegation that
she was not selected for vacancies beginning in mid-2012 until the time of her
complaint. In her complaint, the appellant alleged that she had applied to
positions with the agency since mid-2012 and that she was not selected for them
because of her status as a perceived whistleblower, the agency’s constructive
knowledge of her previous disclosures, and her ongoing litigation against it. IAF,
Tab 6 at 21-24. She specified the subdivision of the agency to which she had
applied, the grade and series of positions to which she applied, the name and
contact information of an agency acting field office director who she alleged was
involved in the retaliation, and the name of a supervisor who she claimed had
knowledge of the issues with her background investigation. Id. We find that the
appellant’s complaint was sufficiently detailed to allow OSC to investigate
because she identified applications that she submitted within a limited timeframe
in a specific division of the agency and also included the names of individuals
who she alleged were involved in the retaliation. Id. Accordingly, we find that
the appellant has exhausted her administrative remedy concerning nonselections
for vacancies beginning in mid-2012 until the time of her complaint. 3 See Reeves
v. Department of the Army, 99 M.S.P.R. 153, ¶ 11 (2005) (finding that the
3
OSC’s letter characterized the appellant’s claim as alleging that the agency failed to
select her for positions based upon disclosures she made as a DOL employee in 2010
and 2011. IAF, Tab 1. Nevertheless, an IRA appeal is a de novo action, and OSC’s
characterizations of the appellant’s allegations are not binding on the Board. Wheeler
v. Department of Veterans Affairs, 88 M.S.P.R. 236, ¶ 22 (2001). Therefore, because
these allegations are contained in her OSC complaint, the appellant has exhausted her
administrative remedy based upon allegations of retaliation due to her status as a
perceived whistleblower, the agency’s constructive knowledge of her previous
disclosures, and her ongoing litigation against it.
7
appellant exhausted his administrative remedy before OSC regarding allegations
that he was not selected for promotion).
The appellant has nonfrivolously alleged that she made protected disclosures and
participated in protected activities.
¶10 In her OSC complaint, the appellant alleged that, in 2010 and 2011, she
made disclosures of fraud, waste, and abuse concerning DOL. IAF, Tab 6 at 22.
The Board previously found that the appellant made protected disclosures while
an employee at DOL. Boyd v. Department of Labor, MSPB Docket Nos.
AT-1221-12-0456-W-1, AT-1221-12-0665-W-1, Final Order at 3 (Sept. 17,
2013). Therefore, we again find that the appellant has nonfrivolously alleged that
she made protected disclosures.
¶11 Next, we find that the appellant has nonfrivolously alleged that she engaged
in protected activity. Under 5 U.S.C. § 2302(b)(9)(A)(i), an employee engages in
protected activity when she exercises any appeal, complaint, or grievance with
regard to remedying a violation of 5 U.S.C. § 2302(b)(8). 4 In her OSC complaint,
the appellant alleged that the agency was retaliating against her because of her
prior Board appeal, in which she asserted that the agency rescinded its tentative
offer because of the protected disclosures she made while employed at DOL.
IAF, Tab 6 at 24; see Boyd v. Department of Homeland Security, MSPB Docket
No. AT-1221-13-3375-W-1, Initial Appeal (Aug. 11, 2013). We find that this
prior appeal constituted a protected activity.
The appellant has not nonfrivolously alleged that her disclosures were a
contributing factor in her nonselection, but she has nonfrivolously alleged that
her protected activity in filing a Board appeal was a contributing factor in her
nonselection.
¶12 The appellant appears to have alleged in her OSC complaint that her prior
disclosures and her ongoing litigation against the agency were contributing
factors in her nonselection. IAF, Tab 6 at 21. The term “contributing factor”
4
Under 5 U.S.C. § 2302(b)(8), it is a prohibited personnel practice to take certain
personnel actions against an employee because of certain protected disclosures.
8
means any disclosure or protected activity that affects an agency’s decision to
threaten, propose, take, or not take a personnel action with respect to the
individual making the disclosure. 5 C.F.R. § 1209.4(d); see Carney v.
Department of Veterans Affairs, 121 M.S.P.R. 446, ¶ 7 (2014). The most
common way of proving the contributing factor element is the knowledge-timing
test. Chavez v. Department of Veterans Affairs, 120 M.S.P.R. 285, ¶ 27 (2013).
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
protected disclosure was a contributing factor in a personnel action. Gonzalez v.
Department of Transportation, 109 M.S.P.R. 250, ¶ 20 (2008).
¶13 In her OSC complaint, the appellant alleged that she made protected
disclosures in 2010 and 2011. IAF, Tab 6 at 21. However, she did not provide
any description of how agency officials would have known about these
disclosures that she made regarding another agency. Accordingly, we find that
the appellant has not nonfrivolously alleged, through the knowledge-timing test,
that her disclosures were a contributing factor in her nonselection. See
Reed, 122 M.S.P.R. 165, ¶ 17 (the appellant failed to nonfrivolously allege that
her disclosure was a contributing factor in her suspension because she did not
allege that the agency officials who were responsible for the alleged personnel
actions knew about the disclosure). However, even if the appellant fails to satisfy
this test, the Board considers other evidence, such as that pertaining to the
strength or weakness of the agency’s reasons for taking the personnel action,
whether the whistleblowing was personally directed at the relevant officials, and
whether those individuals had a desire or motive to retaliate against the appellant.
Stiles v. Department of Homeland Security, 116 M.S.P.R. 263, ¶ 24 (2011). There
9
is no evidence showing that any of the agency officials had a motive to retaliate
against the appellant, whose disclosures were made about a different agency. We
therefore also find, based upon our consideration of other evidence, that the
appellant has failed to nonfrivolously allege that her disclosures were a
contributing factor in her nonselection. Id.
¶14 We find, however, that the appellant nonfrivolously alleged that the filing
of her Board appeal was a contributing factor in her nonselection for certain
vacancies. The appellant alleged that the agency had constructive knowledge of
her Board appeal. IAF, Tab 6 at 24. An allegation of knowledge or constructive
knowledge is “minimally sufficient” to meet the burden of a nonfrivolous
allegation. Jessup v. Department of Homeland Security, 107 M.S.P.R. 1, ¶ 10
(2007). As to the timing portion of the knowledge-timing test, the appellant filed
her Board appeal in August 2013. Boyd v. Department of Homeland Security,
MSPB Docket No. AT-1221-13-3375-W-1, Initial Appeal (Aug. 11, 2013). The
Board has held that a personnel action that occurred within 1 year of a protected
disclosure satisfies the “timing” component of the knowledge-timing test. See
Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 10 (2013). Thus,
we find that the appellant satisfied the knowledge-timing test as to her claim that
the agency retaliated against her for her protected activity when it did not select
her for vacancies after she filed her Board appeal in August 2013, and before she
filed her OSC complaint in March 2014. 5
5
The Board has held that the Whistleblower Protection Enhancement Act provision that
took effect on December 27, 2012, and created a new Board appeal right in IRA appeals
for employees who allege that a personnel action was taken as a result of a prohib ited
personnel practice described in 5 U.S.C. § 2302(b)(9)(A)(i) is not retroactive. Miller v.
Federal Deposit Insurance Corporation, 122 M.S.P.R. 3, ¶ 15 (2014). Here, however,
any nonselections that could have been done in retaliation for filing the prior Board
appeal would have taken place no earlier than August 2013. Thus, there is no
retroactivity issue.
10
¶15 We therefore find that the appellant has established jurisdiction over any
nonselections 6 that occurred after she filed her August 2013 Board appeal and
before she filed her March 2014 OSC complaint. 7 Accordingly, the appellant is
entitled to a hearing on the merits to determine if her protected activity in filing
her Board appeal was a contributing factor in any nonselection that occurred
within this time period. See Rusin v. Department of the Treasury, 92 M.S.P.R.
298, ¶ 20 (2002) (an appellant is entitled to a hearing on the merits if she makes
the required nonfrivolous allegations of the elements of an IRA appeal).
On remand, the administrative judge should determine whether the appellant has
nonfrivolously alleged that she was perceived as a whistleblower, whether the
perception was a contributing factor in her nonselection, and whether any such
claims are barred by res judicata or collateral estoppel.
¶16 The appellant appeared to assert that she was perceived as a whistleblower
because she told a supervisor at the agency that the processing of her background
investigation was delayed. IAF, Tab 6 at 24. In its remand order in Boyd, MSPB
Docket No. AT-1221-13-3375-W-1, the Board found that the administrative judge
erred in finding that the appellant failed to make a nonfrivolous allegation that
she was perceived as a whistleblower. Id.; Remand Order at 4 (Nov. 24, 2014).
Specifically, we noted a letter that she sent to the agency in October 2012,
describing several of her legal actions against DOL. Id. Here, it is not clear if
the appellant is alleging that the agency perceived her as a whistleblower based
upon this letter or other similar facts. We note, however, that the appellant did
not submit the October 2012 letter into evidence in the current appeal. The
administrative judge must therefore determine on remand whether the appellant
has nonfrivolously alleged that she was perceived as a whistleblower. If the
6
On remand, the appellant must clarify whether the nonselections during this time
period are lim ited to the nonselection referenced in the March 20, 2014 email or
whether other nonselections are included as well.
7
Because, as previously discussed, the Board’s jurisdiction is limited to those matters
raised before OSC, Ellison, 7 F.3d at 1037, we may not consider any nonselections that
occurred after the appellant filed her OSC complaint.
11
administrative judge determines that the agency perceived the appellant as a
whistleblower, then he should determine if the appellant has nonfrivolously
alleged that this was a contributing factor in any of her nonselections. If the
administrative judge determines that the appellant established jurisdiction over
any such claims, he also may consider whether they are barred by collateral
estoppel or res judicata. 8 See Zgonc v. Department of Defense, 103 M.S.P.R. 666,
¶¶ 6-8 (2006), aff’d, 230 F. App’x, 967 (Fed. Cir. 2007). If the administrative
judge determines that the Board has jurisdiction over any of these claims and that
they are not barred by res judicata or collateral estoppel, then the appellant is
entitled to a hearing on the merits to determine if her status as a perceived
whistleblower was a contributing factor in her nonselection. See
Rusin, 92 M.S.P.R. 298, ¶ 20.
8
The administrative judge found that this IRA appeal equally could have been
dismissed as a sanction for the appellant’s refusal to comply with Board orders. ID
at 9. While we understand the administrative judge’s frustration with the appellant’s
conduct, we find that her conduct does not justify dismissal of her appeal. See Johnson
v. Department of the Treasury, 108 M.S.P.R. 592, ¶¶ 18-20 (2008) (reversing an
administrative judge’s dismissal of an appeal for failure to provide more specific
information regarding the appellant’s claims). However, we rem ind the appellant that
an administrative judge may impose various sanctions as necessary to serve the ends of
justice. 5 C.F.R. § 1201.43; see Heckman v. Department of the Interior, 106 M.S.P.R.
210, ¶¶ 8-12 (2007) (finding that an admin istrative judge did not abuse her discretion
by canceling the requested hearing as a sanction for repeated failure to provide
additional information). On remand, the appellant is expected to comply with all orders
issued by the administrative judge. See Lubert v. U.S. Postal Service, 110 M.S.P.R.
430, ¶ 15 (2009).
12
ORDER
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.