The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARGARET M. REED, DOCKET NUMBER
Appellant, CH-1221-13-1557-M-1
v.
DEPARTMENT OF VETERANS DATE: September 25, 2015
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
John R. Folkerth, Jr., Esquire, and Kenneth J. Heisele, Esquire, Dayton,
Ohio, for the appellant.
Demetrious A. Harris, Esquire, Dayton, Ohio, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 At the Board’s request, the U.S. Court of Appeals for the Federal Circuit
(Federal Circuit) remanded this individual right of action (IRA) appeal for further
proceedings before the Board. For the reasons set forth below, we REMAND this
appeal to the regional office for further adjudication.
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
¶2 The facts of this case are set forth more fully in the Board’s previous
Opinion and Order. Reed v. Department of Veterans Affairs, 122 M.S.P.R. 165,
¶¶ 3-11 (2015). Briefly, the Assistant Chief of Human Resources issued the
appellant an admonishment for disrespectful conduct. Id, ¶ 4. The appellant
grieved the admonishment, but her grievance was denied. Id., ¶¶ 4-6. The
appellant then complained to the Medical Center Director that she had been
admonished without due process and that the agency failed to follow the
administrative grievance procedures. Id., ¶¶ 7-8. Approximately 1 month later,
the Chief suspended the appellant for 3 days based on three complaints that he
recently had received about the appellant from other agency officials. Id., ¶ 9.
¶3 The appellant filed a whistleblower complaint with the Office of Special
Counsel (OSC). Id., ¶ 10. OSC closed its file without taking corrective action,
and the appellant filed a Board appeal. Id. The administrative judge dismissed
the appeal for lack of jurisdiction on the basis that the appellant failed to make a
nonfrivolous allegation that she made a protected disclosure. Id. The appellant
petitioned for review, and the Board affirmed the initial decision as modified,
finding that, although the appellant made a nonfrivolous allegation that she made
a protected disclosure, she failed to make a nonfrivolous allegation that her
disclosure was a contributing factor in a personnel action. Id., ¶¶ 2, 11, 15-25.
The Board also found that the appellant failed to make a nonfrivolous allegation
that the agency perceived her as a whistleblower. Id., ¶¶ 26-27.
¶4 The appellant appealed the Board’s decision to the Federal Circuit.
Litigation File (LF), Tab 1. After reviewing the file, the Board determined that
the appellant had, in fact, made a nonfrivolous allegation that at least one of her
disclosures was a contributing factor in a personnel action. LF, Tab 7 at 3. At
the Board’s request, with the appellant’s concurrence, the court vacated the
Board’s Opinion and Order and remanded the appeal to the Board for further
3
proceedings. LF, Tabs 8-9. We, in turn, remand the appeal to the regional office
for further adjudication.
ANALYSIS
¶5 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 Veterans Affairs, 242 F.3d 1367,
1371 (Fed. Cir. 2001); Rusin v. Department of the Treasury, 92 M.S.P.R. 298,
¶ 12 (2002).
¶6 The Board found in its prior Opinion and Order that the appellant made a
nonfrivolous allegation that her June 22, 2012 email was a protected disclosure.
Reed, 122 M.S.P.R. 165, ¶ 17; Initial Appeal File (IAF), Tab 4 at 3, 54 of 70. We
adopt that previous finding. The Board also found that the appellant did not
allege that either the Chief or the Assistant Chief were aware of this disclosure.
Reed, 122 M.S.P.R. 165, ¶ 17. This finding, however, was incorrect. The
appellant alleged that the Director sent copies of the email to the Chief and the
Assistant Chief, and the record contains documentary evidence corroborating that
the Chief received this email. 2 IAF, Tab 4 at 54-56 of 70; id. at 15, 22 of 33. We
2
The appellant included an email chain in her response to the administrative judge’s
jurisdictional order, showing that the Chief received her June 22, 2012 email via the
Director’s reply to that email. IAF, Tab 4 at 54-56 of 70. The fact that this was an
email chain previously escaped our attention because the appellant submitted the pages
out of order. Id. The record does not appear to contain any documentary evidence to
substantiate the appellant’s allegation that the Director forwarded the June 22, 2012
email directly to the Chief and the Assistant Chief. IAF, Tab 4 at 22 of 33. On remand,
the administrative judge will need to determine whether the Assistant Chief became
aware of the June 22, 2012 email during the relevant time period.
4
find that the appellant made a nonfrivolous allegation that the Chief became
aware of the June 22, 2012 email and its contents in June or July of 2012.
¶7 The Board also found in its prior Opinion and Order that the appellant
failed to make a nonfrivolous allegation that her July 26, 2012 email to the
Director and Chief, among others, constituted a protected disclosure or that it was
a contributing factor in a personnel action. Reed, 122 M.S.P.R. 165, ¶¶ 19-21.
This finding, however, was inconsistent with the Board’s finding, adopted above,
that the June 22, 2012 email was protected because both emails pertained to the
same alleged wrongdoing. IAF, Tab 4 at 54, 56 of 70. Given the minimal
showing required to meet the nonfrivolous allegation standard, we find that the
appellant has met her burden regarding this disclosure as well. See Jessup v.
Department of Homeland Security, 107 M.S.P.R. 1, ¶ 10 (2007) (observing that
the appellant’s burden of making a nonfrivolous allegation is low and requires
only a minimally sufficient showing). The record also shows that the Chief, if
not the Assistant Chief, was aware of this email because he was one of its
recipients. IAF, Tab 4 at 56 of 70.
¶8 Next, the Board found in its prior Opinion and Order that the appellant
made a nonfrivolous allegation that her August 29, 2012 meeting with the
Director constituted a protected disclosure. Reed, 122 M.S.P.R. 165, ¶ 23; IAF,
Tab 4 at 4 of 70. We adopt that previous finding as well. 3 The Board further
found that the appellant failed to make a nonfrivolous allegation that this
disclosure was a contributing factor in a personnel action because there was no
indication that either the Chief or the Assistant Chief were aware of what
transpired during the meeting or of any particular disclosures that the appellant
might have made. Reed, 122 M.S.P.R. 165, ¶ 23. However, in light of our
3
We adopt the findings in our previous Opinion and Order regarding the remaining
disclosures that the appellant identified. They were either not properly raised before
the Board, the appellant failed to make a nonfrivolous allegation that they were
protected, or she failed to make a nonfrivolous allegation that they were a contributing
factor in a personnel action. Reed, 122 M.S.P.R. 165, ¶¶ 15-16, 18, 22, 24-25.
5
finding above that the appellant made a nonfrivolous allegation that the Chief was
privy to her June 22, 2012 and July 26, 2012 emails, we now find that he may
have been able to infer, at least generally, what transpired during the appellant’s
meeting with the Director. We therefore find that the appellant made a
nonfrivolous allegation that the Chief was aware of any protected disclosures that
the appellant made to the Director during the August 29, 2012 meeting, to the
extent that those disclosures are outlined in the June 22, 2012 or July 26, 2012
emails.
¶9 Given the Chief’s knowledge of the June 22, 2012 email, the July 26, 2012
email, and the appellant’s August 29, 2012 meeting with the Director, we find the
appellant made a nonfrivolous allegation that the disclosures were contributing
factors in the four personnel actions that followed. 4 First, the appellant alleged
that, on or about July 25, 2012, the Chief and the Assistant Chief threatened to
discipline her for her planned meeting with the Director. IAF, Tab 4 at 6 of 70;
id. at 15 of 33. Second, the appellant alleged that the Assistant Chief decided on
August 29, 2012, not to remove the appellant’s earlier admonishment from her
personnel file, even though it had become eligible to be removed 2 weeks earlier.
IAF, Tab 4 at 8-9 of 70; id. at 15 of 33. Third, the Chief proposed the appellant’s
3-day suspension on October 4, 2012. IAF, Tab 5, Subtab 4C. Fourth, the Chief
issued the 3-day suspension on October 29, 2012. Id., Subtab 4B. These
personnel actions all occurred within approximately 1 to 3 months of the
appellant’s disclosures. We find that the appellant has made a nonfrivolous
allegation, under the knowledge/timing test, that they were contributing factors in
the four personnel actions at issue. See 5 U.S.C. § 1221(e)(1) (an employee may
demonstrate that a disclosure was a contributing factor in a personnel action by
showing that the official taking the action knew of the disclosure and the action
occurred within a period of time such that a reasonable person could conclude
4
We adopt our findings in the previous Opinion and Order regarding the personnel
actions at issue in this appeal. Reed, 122 M.S.P.R. 165, ¶¶ 13-14.
6
that the disclosure was a contributing factor); see also Linder v. Department of
Justice, 122 M.S.P.R. 14, ¶ 17 (2014) (finding that interval of approximately
4 months was sufficient to satisfy the timing prong of the knowledge/timing test).
¶10 For these reasons, we find that the appellant has established jurisdiction
over her appeal and is entitled to the hearing that she requested. On remand, the
administrative judge should issue a new initial decision, determining whether the
appellant has shown by preponderant evidence that her June 22, 2012 and July 26,
2012 emails and her August 29, 2012 meeting with the Director constituted
protected disclosures, and whether the appellant has shown by preponderant
evidence that these disclosures were contributing factors in the four personnel
actions at issue. If the administrative judge finds that the appellant has proven
her case in chief, then she should determine whether the agency has shown by
clear and convincing evidence that it would have taken these four personnel
actions notwithstanding the appellant’s disclosures. See 5 U.S.C.
§ 1221(e)(1)-(2); Chambers v. Department of the Interior, 116 M.S.P.R. 17, ¶ 12
(2011).
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.