The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ZAINAB MOHAMMED, DOCKET NUMBER
Appellant, SF-1221-15-0093-W-1
v.
DEPARTMENT OF THE ARMY, DATE: September 11, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Zainab Mohammed, Monterey, California, pro se.
William L. Sims, Monterey, California, 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 in this
individual right of action (IRA) appeal, which granted in part and denied in part
the appellant’s request for corrective action. Generally, we grant petitions such
as this one only when: the initial decision contains erroneous findings of material
fact; the initial decision is based on an erroneous interpretation of statute or
*
A nonprecedential order is one that the Board has determined does not add
significantly 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 Parties may cite nonprecedential orders,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
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 and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
BACKGROUND
¶2 In this IRA appeal, the appellant, an Assistant Professor at the agency’s
Defense Language Institute Foreign Language Center, asserted that the agency
took numerous personnel actions in retaliation for allegedly protected disclosures
she claimed to have made on February 12 and 22, 2013. Initial Appeal File
(IAF), Tabs 1, 14. The appellant claimed to have disclosed to a dean at the
Foreign Language Center that her supervisor violated rules, wasted government
funds, abused his authority, and committed a prohibited personnel practice
involving a violation of the appellant’s right to compete. IAF, Tab 14. The
administrative judge found jurisdiction over the appeal and held a hearing. IAF,
Tab 37, Initial Decision (ID) at 1.
¶3 In her initial decision, the administrative judge found that the appellant had
exhausted her administrative remedies before the Office of Special Counsel
(OSC) and that a reasonable person with knowledge of the essential facts could
reasonably conclude that the appellant’s supervisor had violated a law, rule, or
regulation, or had abused his authority when he, as the appellant alleged in her
3
purported disclosure, gave preferential treatment to other teachers. ID at 10. The
administrative judge further found that the deciding official had knowledge of
this disclosure at the time it occurred. ID at 11. As for the appellant’s other
alleged disclosures, because the appellant failed to provide any evidence to
support her alleged disclosure that her supervisor had either engaged in gross
mismanagement or was responsible for a gross waste of funds, the administrative
judge determined that a reasonable person with knowledge of the essential facts
could not reasonably conclude that such wrongdoing occurred. Id.
¶4 The administrative judge analyzed the several personnel actions for which
the appellant had exhausted her administrative remedies and found four that only
qualified as such under the Whistleblower Protection Enhancement Act (WPEA):
(1) contract renewals for less than 1 year; (2) letters of counseling that contain a
threat of disciplinary or other corrective action; (3) unfavorable or low
performance evaluation, and; (4) reassignment to another department. ID
at 13-14. Of the three letters of counseling the appellant alleged that she received
in reprisal for her protected disclosures, the administrative judge found that the
letters issued on March 11, 2013, and January 16, 2014, did not threaten
discipline such that either one could be considered a personnel action. ID
at 19-20. The administrative judge found that the third letter dated March 19,
2013, which concerned the disruption following the agency’s investigation of the
appellant’s disclosures, threatened disciplinary action and therefore was a
personnel action under the WPEA. ID at 20-22.
¶5 Regarding the appellant’s contract renewals, performance evaluations, and
reassignment, the administrative judge determined that the agency established by
clear and convincing evidence that it would have taken those three personnel
actions in the absence of the appellant’s protected activity. ID at 14-18. The
administrative judge, however, found that the agency failed to establish by clear
and convincing evidence that it would have issued the March 19, 2013 letter of
counseling absent the appellant’s protected activity. ID at 20-22. Having found
4
that the appellant proved that she established a prima facie case of whistleblower
reprisal and that the agency did not meet its burden of showing it would have
issued the March 19, 2013 letter absent her protected disclosure, the
administrative judge ordered corrective action. ID at 22.
¶6 The appellant filed a petition for review. Petition for Review (PFR) File,
Tab 1. The agency filed a response in opposition, and the appellant filed a reply
to the agency’s response. PFR File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 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. §§ 1214(a)(3), 1221(e)(1); Yunus v. Department of Veterans
Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). Once an appellant establishes
jurisdiction over her IRA appeal, she is entitled to a hearing on the merits of her
claim. E.g., Aquino v. Department of Homeland Security, 121 M.S.P.R. 35, ¶ 9
(2014). To prevail on the merits of her claim, the appellant must prove by
preponderant evidence (1) that she reasonably believed she made a protected
disclosure concerning one or more categories of wrongdoing enumerated in
section 2302(b)(8), and (2) that her protected disclosure was a contributing factor
in the challenged personnel action. Id., ¶ 10. If the appellant makes such a
showing, the burden shifts to the agency to prove by clear and convincing
evidence that it would have taken the same action in the absence of the
disclosure. Id.; see 5 U.S.C. § 1221(e)(2).
¶8 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
5
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 takes similar actions against employees who are not
whistleblowers but who are otherwise similarly situated. Lu v. Department of
Homeland Security, 122 M.S.P.R. 335, ¶ 7 (2015) (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. Moreover, 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).
The appellant’s contentions on review do not provide a basis for disturbing the
administrative judge’s findings regarding which agency actions constituted
personnel actions under the WPEA.
¶9 In her timely filed petition for review, the appellant first argues that the
administrative judge incorrectly found that the harassment that she claimed she
experienced did not rise to the level of a significant change in working conditions
such that it was a personnel action under the WPEA. PFR File, Tab 1 at 7-10.
Specifically, the appellant had alleged that her supervisor harassed and
discriminated against her on account of her Iraqi accent and enrolled her in
Arabic Grammar and English classes in reprisal for her protected activity. IAF,
Tab 4 at 9; ID at 13.
¶10 We find the appellant’s contention unpersuasive. The appellant conceded in
her petition for review that the grammar workshops at issue were intended for all
teachers, not just for her, and that the English classes at issue were offered to all
faculty on a voluntary basis in acknowledgment that they are not native speakers.
PFR File, Tab 1 at 8-9. In light of the appellant’s concessions that the classes
6
were generally offered to all faculty and her claim that she had already attended
several of them before her supervisor instructed her to do so, id. at 9, we agree
with the administrative judge that enrolling the appellant in these classes did not
represent a significant change in working conditions, ID at 13.
¶11 The appellant also contends on review that the administrative judge erred in
finding that the March 11, 2013 and January 16, 2014 letters of counseling did
not constitute personnel actions under the WPEA. PFR File, Tab 1 at 14.
Regarding these two letters of counseling, the administrative judge found that
neither of them qualified as personnel actions under the WPEA because they did
not contain an actual threat of a personnel action. ID at 19. The appellant offers
no new argument or evidence on review that would cause us to revisit the
administrative judge’s conclusions on this issue.
The appellant does not provide a reason for disturbing the administrative judge’s
finding that the agency met its burden of proof with regards to three of the
personnel actions.
¶12 The appellant also challenges the administrative judge’s finding that the
agency met its burden of showing that it would have renewed the appellant’s
contracts for less than 1 year in the absence of her protected whistleblowing.
PFR File, Tab 1 at 10-14; see ID at 14-17. In this regard, the administrative
judge found that the agency’s decision to renew the appellant’s contract for less
than 1 year was not retaliatory because the record reflected that the agency made
its decision on one of the contract renewals prior to the appellant’s disclosure and
that, in any event, it had legitimate reasons in each instance not to recommend a
12-month renewal. ID at 14-17. Furthermore, the administrative judge found no
evidence to show that the agency officials involved had any motive to retaliate
against the appellant with respect to renewing contracts, noting that the
appellant’s most recent contract renewal was for a full 12 months. ID at 15-16.
¶13 The appellant has failed to provide a basis for disturbing these findings on
review. In support of her argument that the agency decided at the last minute to
7
cut the renewal term of her contract in reprisal for her protected activity, the
appellant argues that the February 12, 2013 memorandum that the administrative
judge relied upon to find that the agency met its burden of proof is falsified
because it does not match another agency official’s memorandum recounting a
February 14, 2013 meeting that was called in order to review the issues set forth
in the February 12 memorandum. PFR File, Tab 1 at 11-12. The appellant
contends that, because the memoranda do not match, the February 12
memorandum was instead recently drafted in order to protect the agency official
involved. Id. at 12.
¶14 We disagree. The fact that the first memorandum recounts the agency
official’s statement that he had already decided to renew the appellant’s contract,
and that the renewal could be for 3, 6, or 9 months, and the second memorandum
does not mention this fact, does not necessarily establish that the first
memorandum was falsified, as the documents were drafted by different persons
regarding two related, but completely separate events. Compare IAF, Tab 16
at 6-7, with IAF, Tab 25 at 20. Moreover, even if the point at issue was omitted
from the discussion at the February 14 meeting, that fact alone would not
necessarily establish that it was not discussed on February 12. The appellant also
argues that the memorandum was inconsistent with other testimony regarding why
the agency renewed the appellant’s contract for less than a full 1-year term. PFR
File, Tab 1 at 12-14. Although she accuses several individuals of providing false
testimony, id. at 7-13, she provides only scant and conclusory support for her
assertions and identifies no other evidence in the record that would either give
credence to her version of these events or provide impetus for overturning the
administrative judge’s findings on this issue.
¶15 In the second instance, the administrative judge found that the appellant’s
score on student evaluations, as well as hearing testimony that the appellant had
consistent problems in the areas of teamwork and English language ability,
provided strong evidence in support of the agency’s actions regarding the renewal
8
term of the appellant’s contract. ID at 15. The administrative judge further found
no evidence that either the proposing or deciding officials had a motive to
retaliate against the appellant with regard to the renewal of her contract, id., and
the appellant does not identify any such motive on review. As for the third Carr
factor, the record does not address any circumstances in which the agency took a
similar action against an employee who is not a whistleblower and is similarly
situated. Carr, however, does not impose an affirmative burden on the agency to
produce evidence on each individual factor, none of which is in and of itself
outcome determinative, and with respect to the third Carr factor, the absence of
any evidence in that regard can effectively remove it from the analysis.
Whitmore, 680 F.3d at 1374; Carr, 185 F.3d at 1323. Again, the appellant’s
arguments challenge individual determinations made by the administrative judge
with regard to this contract renewal, e.g., PFR File, Tab 1 at 13-14, but her
arguments do not illustrate that the administrative judge erred in her adjudication
of the facts or her application of those facts to the law.
¶16 To the extent the appellant also is contending that the administrative judge
erred in finding that the agency established that it would have given her
unfavorable performance evaluations and reassigned her in the absence of her
whistleblowing activity, we discern no basis for disturbing the administrative
judge’s finding that the agency met its burden of proof on these personnel
actions. As for the appellant’s performance evaluations, the administrative judge
found that the appellant received consistent ratings both before and after her
disclosure. ID at 17. The administrative judge found that the appellant’s
reassignment to another department was not retaliatory because the agency
regularly reassigns teachers according to the changing needs of the mission, and
the appellant’s transfer helped solve office issues. ID at 18. Moreover, the
administrative judge found, and the appellant has not contested, that the appellant
had requested a reassignment. ID at 17-18. The appellant has not provided a
reason for disturbing these findings on review.
9
¶17 Based on the foregoing, we find that the appellant has not provided a basis
for disturbing the initial decision. Neither party challenges the administrative
judge’s decision to order corrective action concerning the third letter of
counseling. Accordingly, we affirm the initial decision.
ORDER
¶18 We ORDER the agency to rescind the March 19, 2013 Notice of Counseling
and purge all copies from agency records, in order to restore the appellant to the
situation she would have been in absent the agency retaliatory action. See Kerr v.
National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency
must complete this action no later than 20 days after the date of this decision.
¶19 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it
took to carry out the Board’s Order. The appellant, if not notified, should ask the
agency about its progress. See 5 C.F.R. § 1201.181(b).
¶20 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
10
you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
NOTICE TO THE APPELLANT REGARDING YOUR RIGHT TO
REQUEST CONSEQUENTIAL OR COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your consequential
damages, including medical costs incurred, travel expenses, and any other
reasonable and foreseeable consequential damages. To be paid, you must meet
the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may
be found at 5 C.F.R. §§ 1201.202, 1201.202 and 1201.204.
In addition, the Whistleblower Protection Enhancement Act of 2012
authorized the award of compensatory damages including interest, reasonable
expert witness fees, and costs. 5 U.S.C. § 1214(g)(2).
If you believe you meet these requirements, you must file a motion for
consequential damages and/or compensatory damages WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your motion with the
office that issued the initial decision on your appeal.
NOTICE TO THE PARTIES
A copy of the decision will then be referred to the Special Counsel “to
investigate and take appropriate action under [5 U.S.C.] section 1215,” based on
the determination that “there is reason to believe that a current employee may
have committed a prohibited personnel practice” under 5 U.S.C.
§ 2302(b)(8). 5 U.S.C. § 1221(f)(3).
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.
11
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
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
12
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
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.