Sandra M. Ayers v. Department of the Army

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2015 MSPB 58

Docket No. DA-0752-12-0396-I-3

Sandra M. Ayers,

Appellant,

v.

Department of the Army,

Agency.

November 2, 2015

Daniel J. Gamino, Esquire, Oklahoma City, Oklahoma, for the appellant.

Melissa Beeson Heindselman, Fort Sill, Oklahoma, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

OPINION AND ORDER

¶1 The agency has filed a petition for review of the initial decision, which

reversed the appellant’s removal. We DENY the petition for review. Except as

expressly MODIFIED by this Opinion and Order to find that the appellant’s

disclosure of an alleged inappropriate relationship was not protected, we

AFFIRM the initial decision.

BACKGROUND

¶2 The appellant was formerly employed as a Diagnostic Radiologic

Technologist (Mammography), GS-0647-08, at the agency’s Reynolds Army

Community Hospital (RACH), Department of Radiology, Diagnostic Service, in

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Fort Sill, Oklahoma. On February 21, 2012, the agency proposed to remove her

based on 25 specifications of Conduct Unbecoming a Federal Civilian Employee.

Ayers v. Department of the Army, MSPB Docket No. DA-0752-12-0396-I-1,

Initial Appeal File (I-1 IAF), Tab 40, Subtab 4e. The appellant responded in

writing, and on April 5, 2012, the agency issued a decision letter effecting her

removal that same day. I-1 IAF, Tab 45, Subtab 4b.

¶3 The appellant filed a timely appeal, raising affirmative defenses of

retaliation for whistleblowing, union activity, and equal employment opportunity

(EEO) activity. I-1 IAF, Tabs 1, 111. A hearing was held over 7 days in August

through October 2012. The appeal was dismissed without prejudice twice

pending the Board’s decision in Day v. Department of Homeland

Security, 119 M.S.P.R. 589 (2013), concerning the retroactivity of certain

portions of the Whistleblower Protection Enhancement Act of 2012 (WPEA). I-

1 IAF, Tab 140, Initial Decision; Ayers v. Department of the Army, MSPB Docket

No. DA-0752-12-0396-I-2, Initial Appeal File, Tab 2, Initial Decision. Following

the issuance of Day, the appeal was again refiled on June 28, 2013. Ayers v.

Department of the Army, MSPB Docket No. DA-0752-12-0396-I-3, Initial Appeal

File (I-3 IAF), Tab 2.

¶4 The proceedings below culminated in a 253-page initial decision. I-3 IAF,

Tab 12, Initial Decision (ID). Ultimately, the administrative judge sustained the

charge, but only the following specifications: (a); (c) (in part); (d); (e); (j) (in

part); (k) (in part); (l) (in part, merged with (j)); (r); and (s). See ID at 53-204.

He further found that the appellant did not establish her claim of EEO retaliation,

ID at 241-44, but did establish her claims of retaliation for whistleblowing, ID

at 205-36, and union activity, ID at 236-41. Accordingly, the administrative

judge reversed the action. ID at 244.

¶5 On petition for review, the agency challenges the administrative judge’s

findings on whistleblowing and union activity reprisal, and also contends that he

should not have considered the whistleblowing retaliation claim in the first

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instance. Petition for Review (PFR) File, Tab 3. The appellant has filed a

response to the agency’s petition. PFR File, Tab 6.

ANALYSIS

Interim Relief

¶6 Where, as here, the appellant was the prevailing party in the initial decision

and interim relief was ordered, a petition for review filed by the agency must be

accompanied by a certification that the agency has complied with the interim

relief order, either by providing the interim relief ordered, or by making a

determination that returning the appellant to the place of employment would

cause undue disruption to the work environment. 5 C.F.R. § 1201.116(a);

see 5 U.S.C. § 7701(b)(2)(A)(ii), (B). In its certification, the agency stated that it

had determined that it would be unduly disruptive to return the appellant to the

mammography section at Fort Sill. PFR File, Tab 1 at 26. The agency explained

that it therefore had placed the appellant on paid administrative leave beginning

February 21, 2012, the date of the initial decision, and that she would remain in

that status until April 14, 2012, at which time the agency would detail her to

another department in RACH. Id.

¶7 Following her response to the agency’s petition for review, the appellant

filed an additional pleading, labeled as a “Petition for Enforcement,” in which she

alleged that the agency had failed to comply with the interim relief order. PFR

File, Tab 10. She requested that the Board issue an order enforcing the interim

relief previously ordered, and award attorney fees incurred in the preparation of

her pleading. Id. The appellant’s request is denied, because our regulations do

not allow for a petition for enforcement of an interim relief order. See 5 C.F.R.

§ 1201.182(a)-(b). Her request for attorney fees is likewise premature, because

our regulations do not allow for an award of attorney fees before the decision of

the Board becomes final. See 5 C.F.R. § 1201.116(f).

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¶8 We instead consider the appellant’s pleading as a challenge to the agency’s

certification of compliance. See 5 C.F.R. § 1201.116(b). Ordinarily, where an

appellant challenges the agency’s certification of compliance with an interim

relief order, the Board will issue an order affording the agency the opportunity to

submit evidence of compliance. Id. If the agency fails to provide evidence of

compliance in response to such an order, the Board may, at its discretion, dismiss

the agency’s petition for review. 5 C.F.R. § 1201.116(e). In this case, however,

we find that the agency’s petition does not meet the criteria for review in any

event, and the issuance of our final decision renders moot any dispute concerning

the agency’s compliance with the interim relief order. Under these

circumstances, it is unnecessary to issue an order under 5 C.F.R. § 1201.116(b).

If the appellant believes the agency is in noncompliance with the Board’s final

order, or if she seeks an award of attorney fees as the prevailing party in this

appeal, she may file a petition for enforcement and/or a request for attorney fees

in accordance with the instructions provided below.

The administrative judge did not abuse his discretion in permitting the appellant

to raise her affirmative defense of whistleblowing reprisal.

¶9 On petition for review, the agency first argues that the administrative judge

improperly considered the appellant’s whistleblower reprisal claim. PFR File,

Tab 3 at 5-7. The agency suggests that her claim was not raised in a timely

fashion. We disagree.

¶10 The Board’s regulations provide that an appellant may raise a claim or

defense not included in the appeal at any time before the end of the conference(s)

held to define the issues in the case. 5 C.F.R. § 1201.24(b). The regulation

further provides that the appellant may not raise a new claim or defense after that

time, except for good cause shown, and that a claim or defense not included in

the appeal may be excluded if a party shows that including it would result in

undue prejudice. Id. In this case, by the time of the July 13, 2012 prehearing

conference that defined the issues in dispute, the appellant had timely raised a

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claim that the agency removed her in retaliation for protected disclosures made in

her April 2011 complaint to the agency’s Inspector General (IG). I-1 IAF,

Tabs 62, 111.

¶11 Furthermore, the agency has not demonstrated that it was unduly

prejudiced by the inclusion of the defense. First, the record shows that agency

counsel was already in possession of the complaint as well as the resulting IG

report. I-1 IAF, Tabs 107, 118. The agency objects that the appellant did not

identify which particular disclosures she believed to be protected until the close

of the record. PFR File, Tab 3 at 7. However, the agency easily could have

surmised that the disclosures in question were the two contained in her complaint,

namely her allegations of workplace harassment and an inappropriate relationship

between her first- and second-level supervisors. I-1 IAF, Tab 107. The agency

was already well versed in these topics, as it had removed her in part for making

the same allegations in the same April 8, 2011 written statement she provided to

the IG. I-1 IAF, Tab 30, Subtab 4e (specifications “b” and “n”). Nonetheless,

the administrative judge granted the agency’s request for a continuance, partly in

order to provide it additional time to consider the affirmative defenses raised for

the first time at the prehearing conference. I-1 IAF, Tab 123. Under these

circumstances, we find the administrative judge did not err by including the

appellant’s whistleblowing reprisal claim.

The administrative judge correctly found that the appellant established her

whistleblowing reprisal claim.

¶12 In a removal appeal, an appellant’s claim of whistleblowing reprisal is

treated as an affirmative defense. Simmons v. Department of the

Air Force, 99 M.S.P.R. 28, ¶ 22 (2005), aff’d sub nom. Gebhardt v. Department

of the Air Force, 186 F. App’x 996 (2006). In such an appeal, once the agency

proves its initial case by a preponderance of the evidence, the appellant must

show by a preponderance of the evidence that she made a protected disclosure

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under 5 U.S.C. § 2302(b)(8) 1 and that the disclosure was a contributing factor in

the agency’s personnel action. Simmons, 99 M.S.P.R. 28, ¶ 22. If the appellant

establishes a prima facie case of whistleblowing reprisal, then the burden of

persuasion shifts to the agency to show by clear and convincing evidence that it

would have taken the same personnel action absent any protected activity. Id.,

¶ 23.

The appellant made a protected disclosure concerning alleged harassment

by her first-level supervisor, but her disclosure of an alleged intimate

relationship between her first- and second-level supervisors was not

protected.

¶13 A protected disclosure includes “any disclosure . . . to the Inspector

General of an agency . . . of information which the employee [] reasonably

believes evidences a violation of any law, rule, or regulation, or gross

mismanagement, a gross waste of funds, an abuse of authority, or a substantial

and specific danger to public health or safety.” 5 U.S.C. § 2302(b)(8)(B) (2011).

The test of a reasonable belief is whether a disinterested observer with knowledge

of the essential facts known to and readily ascertainable by the employee could

reasonably conclude that the actions evidenced one of the types of wrongdoing

listed above. Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999). Here,

the administrative judge found that the appellant made protected disclosures in

her April 2011 IG complaint concerning (1) alleged harassment by her first-level

supervisor, J.P.; and (2) an alleged inappropriate relationship between J.P. and

the appellant’s second-level supervisor, W.G. ID at 209-11. The agency

contends that the administrative judge erred on both counts. PFR File, Tab 3

at 11-17.

1

Insofar as the appellant may have engaged in activity under 5 U.S.C.

§ 2302(b)(9)(A)(i) and (C), which would now be protected under the WPEA, these

provisions of the WPEA do not retroactively apply to this case. See Colbert v.

Department of Veterans Affairs, 121 M.S.P.R. 677, ¶ 7 (2014).

7

¶14 Regarding disclosure (1), the agency cites several nonprecedential

decisions by the U.S. Court of Appeals for the Federal Circuit for the proposition

that disclosure of personal workplace grievances is not protected by the

Whistleblower Protection Act (WPA). PFR File, Tab 3 at 8; see Suggs v.

Department of Veterans Affairs, 415 F. App’x 240 (Fed. Cir. 2011); Winfield v.

Department of Veterans Affairs, 348 F. App’x 577 (Fed. Cir. 2009); Riley v.

Department of Homeland Security, 315 F. App’x 267 (Fed. Cir. 2009); Doyle v.

Department of Veterans Affairs, 273 F. App’x 961 (Fed. Cir. 2008). However,

none of the cases cited by the agency involved allegations of harassment by a

supervisor, which we have found may constitute an abuse of authority. See, e.g.,

Herman v. Department of Justice, 115 M.S.P.R. 386, ¶¶ 11-12 (2011) (explaining

that an abuse of authority occurs when there is an arbitrary or capricious exercise

of power by a Federal official or employee that adversely affects the rights of any

person or results in personal gain or advantage to himself or preferred other

persons); Murphy v. Department of the Treasury, 86 M.S.P.R. 131, ¶ 6 (2000).

¶15 Moreover, the administrative judge correctly found that the appellant had a

reasonable belief in the truth of her allegation that J.P. was harassing her. See ID

at 83-112. The appellant’s belief that J.P. was harassing her was based in part—

but not exclusively—on the decision by J.P. and Chief Radiologist P.D. to place

her on a retraining program following her return from maternity leave in

February 2011. That decision was itself ostensibly based on two suboptimal

mammograms conducted by the appellant in December 2010 that resulted in P.D.

recalling the two affected patients. However, the administrative judge agreed

with the appellant that, assuming the callbacks did occur, the blame fell at least

as much on the reviewing radiologist, who should not have released the patients

when the initial images were taken. The administrative judge further noted that

these were the only two purported patient recalls among the “innumerable”

screenings the appellant performed both before and after December 2010. ID

at 111-12.

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¶16 On petition for review, the agency argues that the appellant was solely

responsible for the patient recalls, because patients are released by the

mammography technologist before the radiologist reviews the images. The

agency also contends that, in comparing the number of exams performed by the

appellant to those performed by J.P. and another technologist, G.A., the

administrative judge failed to distinguish between different types of

mammograms, some of which take longer than others. In addition, the agency

contends that the appellant was responsible for a number of poor images (or

“failures”) in addition to the faulty mammograms that resulted in the two patient

recalls. PFR File, Tab 1 at 12-13. However, assuming arguendo that the agency

is correct on these points, the justification for the retraining program was

nonetheless questionable. As the administrative judge noted, there was no

contemporaneous documentation of the December 2010 recalls, which were first

mentioned in memoranda for the record (MFR) by P.D. and J.P., dated April 11,

and April 25, 2011, respectively. These MFRs were prepared after the appellant

provided an April 8, 2011 statement to P.D. alleging harassment and an

inappropriate relationship between J.P. and W.G., after the appellant informed

P.D. and W.G. of her intent to file an IG complaint concerning these issues, and,

in the case of J.P.’s MFR, after the appellant actually made the IG complaint. As

the administrative judge observed, the timing of these events suggests that the

MFRs were prepared after the fact as defensive measures, and not because the

patient recalls were deemed to be serious when they purportedly took place. ID

at 111.

¶17 Moreover, the agency overlooks other evidence that the retraining program

was unjustified. Notably, RACH Chief of Staff E.G., who later proposed the

appellant’s removal, indicated in a May 26, 2011 email message that he was

concerned there was an ulterior motive behind the retraining program. I-1 IAF,

Tab 23 at 247-49. In addition, as the administrative judge noted, the appellant

received a within-grade increase on January 2, 2011, which is at odds with the

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decision to place her on a retraining program on February 23, 2011. Id. We

therefore agree that the appellant reasonably believed that her placement on a

retraining program was part of a pattern of harassment.

¶18 In any case, the decision to place the appellant on a retraining plan was not

the only basis for her belief that J.P. was harassing her. I-1 IAF, Tab 107 at 2-3.

Another factor was the appellant’s negative performance evaluation issued by J.P.

on March 25, 2011. Id. at 3. Significantly, the appellant successfully challenged

that evaluation, and her grievances ultimately resulted in the elevation of her

grades in two critical elements, the elevation of her overall rating to the second

highest possible level, the removal of negative “bullets” and comments from the

appraisal, and the removal of negative “key points made” from the cover sheet for

her next performance year. I-1 IAF, Tab 12 at 406. The fact that the appellant

succeeded in her challenge lends support to a finding that the negative

performance evaluation was part of a pattern of harassment.

¶19 Moreover, as the administrative judge discussed at length, the appellant’s

perception that she was being harassed was shared by several other employees,

not all of whom were her allies. See Greenspan v. Department of Veterans

Affairs, 464 F.3d 1297, 1305 (Fed. Cir. 2006) (considering that others shared the

appellant’s beliefs as evidence those beliefs were reasonable). Most notably,

E.G., who proposed the appellant’s removal, also proposed to demote and

suspend J.P. for 10 days on a charge of “Deficient Behavior as a Supervisor,” one

specification of which alleged that J.P. “[a]t times demonstrated poor

communication, professional animosity, lack of collegiality and refusal to work

with . . . [her] subordinates.” I-1 IAF, Tab 112 at 22-23. In addition, RACH

Chief of Nursing M.K., who conducted the agency’s internal investigation that

led to the appellant’s removal, concluded that the disruptive workplace

environment in the Mammography Section had been caused, at least in part, by

“all parties,” and faulted J.P.’s poorly planned and poorly documented retraining

of the appellant. I-1 IAF, Tab 39.

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¶20 The agency correctly observes that the fact that others may have shared the

appellant’s belief is not dispositive and that we should also consider the

appellant’s self-interest and potential bias in determining whether she had a

reasonable belief in the truth of her disclosures. See Kinan v. Department of

Defense, 87 M.S.P.R. 561, ¶ 13 (2001). Specifically, the agency contends that

the appellant made her disclosures after she was informed of the performance

appraisal and the planned retraining and that she “was angry” with these

decisions. PFR File, Tab 3 at 11. However, it is obvious that the appellant

could not have disclosed the alleged harassing actions until after they had taken

place. Further, while motive may be relevant to the determination of a reasonable

belief, a disclosure is not excluded from protection based on an appellant’s

motive in making it. Carter v. Department of the Army, 62 M.S.P.R. 393, 402

(1994), aff’d, 45 F.3d 444 (Fed. Cir. 1995) (Table); see WPEA, Pub. L.

No. 112-199, § 101(b)(2)(C), 126 Stat. 1465, 1466 (codified at 5 U.S.C.

§ 2302(f)(1)) (codifying this rule in the WPEA). In sum, under the circumstances

of this case, we find that the appellant’s self-interest and potential bias do not

undermine the reasonableness of her belief that J.P. was harassing her.

¶21 The agency also contests the administrative judge’s finding that the

appellant made a protected disclosure concerning an alleged improper

relationship between J.P. and W.G. The agency first argues that her IG complaint

was “not about the relationship” and that she only mentioned it to explain why

she had not brought the alleged harassment to W.G.’s attention. PFR File, Tab 3

at 10; see IAF, Tab 107. However, even if the alleged relationship was not the

primary focus of her IG complaint, the appellant nonetheless made the allegation

on the front page of the complaint, and again in the first two paragraphs of the

supporting list of “Grievances and Incidents.” I-1 IAF, Tab 107. Moreover, as

noted above, a disclosure is not excluded from protection because of the

appellant’s motive in making it. Carter, 62 M.S.P.R. at 402.

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¶22 We also discern no error in the administrative judge’s finding that the

disclosure was based on a reasonable belief. While it is undisputed that W.G. and

J.P. were not in fact in an intimate relationship, the record reflects that the

appellant was not alone in her impression. On April 18, 2011, P.D. counseled

W.G. in writing about a “perceived improper relationship” with J.P. I-1 IAF,

Tab 112 at 277-78. That same day, P.D. verbally counseled J.P. about the same

issue. I-1 IAF, Tab 21 at 272. In his MFR recording the counseling, P.D.

indicated that he told J.P. that, although he had not found sufficient evidence to

confirm the appellant’s allegations, he did find some Radiology Department

employees who shared the appellant’s perception of an improper relationship, and

he counseled J.P. to “refrain from activities or actions that would contribute to

this perception.” Id. The shared perception of an improper relationship, even if

inaccurate, weighs in favor of a finding that the appellant’s belief was

reasonable. 2 See Greenspan, 464 F.3d at 1305.

¶23 However, we disagree with the administrative judge that the appellant’s

allegation of an intimate relationship between J.P. and W.G. was a protected

disclosure of an abuse of authority. We have held that it is an abuse of authority

for a supervisor to give preferential treatment to a subordinate with whom he or

she is having an intimate relationship. Sirgo v. Department of

2

The agency cites Special Counsel v. Spears, 75 M.S.P.R. 639 (1997), in which the

Board found that an allegation of preferential treatment between the respondent and a

subordinate employee—who, according to office gossip, were having an affair—did not

meet the reasonable belief standard. In reaching that finding, the Board noted that,

while the agency’s IG had found that there was a perception that the respondent was

having an affair with the subordinate and giving her preferential treatment, that finding

was unpersuasive, because there was no indication that the IG had considered the

possibility that the rumors might have been malicious fabrications by a network of

disgruntled employees. Id. at 655-56. In this case, however, we find nothing in the

record to suggest such a conspiracy. Rather, it appears that the perception of an

intimate relationship between J.P. and W.G. was based on the observation of innocent

activities, e.g., shopping together, that were open to misinterpretation.

12

Justice, 66 M.S.P.R. 261, 266-67 (1995). In this case, however, while the

appellant stated in her IG complaint that she felt “uncomfortable” bringing her

concerns about the hostile work environment to W.G.’s attention, she did not

allege W.G. had in fact given J.P. preferential treatment or otherwise exercised

his authority in an arbitrary or capricious manner. This case is thus

distinguishable from Sirgo.

¶24 Nor did the appellant make a protected disclosure of a violation of law,

rule, or regulation. Ordinarily, to make a protected disclosure of a law, rule, or

regulation, an employee must identify the specific law, rule, or regulation that

was violated. Langer v. Department of the Treasury, 265 F.3d 1259, 1266 (Fed.

Cir. 2001). Although an individual need not identify a statutory or regulatory

provision by a particular title or number “when the statements and the

circumstances surrounding the making of those statements clearly implicate an

identifiable violation of law, rule, or regulation,” id., the appellant’s allegation of

an improper relationship between J.P. and W.G. falls short of this standard. In

finding the disclosure protected, the administrative judge cited Army Regulation

R 600-20, chapter 4-16, which prohibits fraternization between officers of

different ranks, but, as the agency correctly observes, J.P. and W.G. were not

service members of different ranks. The administrative judge elsewhere cited the

ethics regulations at 5 C.F.R. § 2635.101(b)(8) and (14), which prohibit

employees from giving preferential treatment or creating the appearance thereof.

See ID at 41 n.40; see also Department of Defense Directive 5500.07-R (Joint

Ethics Regulation), § 1-300(b) (making 5 C.F.R. § 2635 applicable to enlisted

military members). However, the appellant did not allege that W.G. gave or

appeared to give J.P. preferential treatment. In sum, we find that the appellant’s

allegation of an improper relationship between J.P. and W.G., even though based

on a reasonable belief, was not a protected disclosure.

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The appellant’s protected disclosure was a contributing factor in

her removal.

¶25 To prevail on a claim under the WPA, an appellant must prove by

preponderant evidence that her protected disclosures were a contributing factor in

a personnel action. The most common way of proving the contributing factor

element is the “knowledge/timing” test. Wadhwa v. Department of Veterans

Affairs, 110 M.S.P.R. 615, ¶ 12, aff’d, 353 F. App’x 434 (Fed. Cir. 2009). Under

that test, an appellant can prove the contributing factor element 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. To satisfy the test, the appellant need demonstrate only

that the fact of, not necessarily the content of, the protected disclosure was one of

the factors that tended to affect the personnel action in any way. Armstrong v.

Department of Justice, 107 M.S.P.R. 375, ¶ 19 (2007).

¶26 The timing component of the test is satisfied where, as here, the contested

personnel action took place slightly more than 1 year after the protected

disclosure. See Gonzalez v. Department of Transportation, 109 M.S.P.R. 250,

¶ 20 (2008). Furthermore, the agency’s report of its internal investigation, which

was a focus of both the notice of proposed removal and the deciding official’s

deliberations, included a reference to the appellant’s IG complaint. I-1 IAF,

Tab 37 at 15; see I-1 IAF, Tab 40, Subtab 4e (proposal notice). Hence, the

proposing and deciding officials were aware of at least the fact of the appellant’s

disclosure, which is sufficient to satisfy the knowledge component. Accordingly,

we proceed to the question of whether the agency proved by clear and convincing

evidence that it would have removed her in the absence of her protected

whistleblowing activity.

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The administrative judge properly found that the agency failed to prove by clear

and convincing evidence that it would have removed the appellant in the absence

of her IG complaint.

¶27 Because the appellant proved her prima facie case of whistleblower

reprisal, the burden shifted to the agency. See Simmons, 99 M.S.P.R. 28, ¶ 23. In

determining whether an agency met its burden to show by clear and convincing

evidence that it would have taken the same personnel action in the absence of

whistleblowing, the Board will consider the following factors: the strength of the

agency’s evidence in support of its action; the existence and strength of any

motive to retaliate on the part of the agency officials who were involved in the

decision; and any evidence that the agency takes similar actions against

employees who are not whistleblowers but who are otherwise similarly situated.

Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999).

Our reviewing court has further clarified that “[e]vidence 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).

¶28 In considering the strength of the agency’s evidence in support of its

action, the administrative judge incorporated by reference his thorough analysis

of all 25 specifications under the agency’s charge. ID at 53-204, 216-27. We

find that the administrative judge gave due consideration to the evidence for and

against each specification, and we agree that the agency’s failure to prove a

majority of the specifications is a sign of overreach. Moreover, contrary to the

agency’s suggestion in its petition for review, the administrative judge did

acknowledge the extent to which the sustained conduct was disruptive to the work

environment. The question, however, is not whether the appellant’s conduct

could have warranted discipline, but whether the agency would have removed her

in the absence of her whistleblowing. See, e.g., Savage v. Department of the

15

Army, 122 M.S.P.R. 612, ¶ 52 (2015) (remanding for further adjudication on the

“clear and convincing” test even though at least one specification was sustained).

As the administrative judge correctly noted, the strength of the agency’s case is

diminished to the extent the stress caused by its wrongful actions, such as the

negative performance evaluation and placement of the appellant on a retraining

program, led the appellant to act out against her better judgment. See Whitmore,

680 F.3d at 1375. The administrative judge also properly considered the extent to

which the dysfunctional work environment was the result of the agency’s hostile

reaction to her whistleblowing. See id. at 1376; Chavez v. Department of

Veterans Affairs, 120 M.S.P.R. 285, ¶ 31 (2013). Here, the agency continued to

defend against the appellant’s challenges to the appraisal and continued to

implement the flawed retraining plan after her IG complaint was filed, and much

of the sustained misconduct also occurred during this time frame. See ID at 220.

¶29 Concerning the second Carr factor, while we have found that the

appellant’s allegation of an improper relationship between J.P. and W.G. is not a

protected disclosure, we nonetheless find that agency officials involved in the

appellant’s removal had a strong motive to retaliate against her based solely on

her disclosure that J.P. was harassing her. Most obviously, J.P. herself had a

clear and strong retaliatory motive. See Whitmore, 680 F.3d at 1371 (determining

that reprisal motive of employees other than just the proposing and deciding

officials may be relevant). Moreover, while neither the proposing nor deciding

official was directly implicated by the appellant’s protected disclosure, J.P was in

their chain of command; therefore, the appellant’s criticisms reflected on both in

their capacity as managers and employees, which is sufficient to establish a

substantial retaliatory motive. See Chavez, 120 M.S.P.R. 285, ¶ 33.

¶30 Finally, as the administrative judge explained, there is no evidence that the

agency took similar actions against employees who were not whistleblowers but

who were similarly situated. See ID at 235-36. In sum, notwithstanding our

finding that one of the appellant’s disclosures was not protected, we agree with

16

the administrative judge that the agency failed to prove by clear and convincing

evidence that it would have removed her in the absence of her whistleblowing.

Because we find that the removal action must be reversed based on the agency’s

violation of 5 U.S.C. § 2302(b)(8), we do not reach the question of whether the

administrative judge was correct in finding that the appellant’s removal was also

the result of reprisal for her union activity.

ORDER

¶31 We ORDER the agency to cancel the removal and to retroactively restore

the appellant effective April 5, 2012. 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.

¶32 We also ORDER the agency to pay the appellant the correct amount of

back pay, interest on back pay, and other benefits under the Office of Personnel

Management’s regulations, no later than 60 calendar days after the date of this

decision. We ORDER the appellant to cooperate in good faith in the agency’s

efforts to calculate the amount of back pay, interest, and benefits due, and to

provide all necessary information the agency requests to help it carry out the

Board’s Order. If there is a dispute about the amount of back pay, interest due,

and/or other benefits, we ORDER the agency to pay the appellant the undisputed

amount no later than 60 calendar days after the date of this decision.

¶33 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).

¶34 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

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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).

¶35 For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Defense Finance and

Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resulting from a Board decision

are attached. The agency is ORDERED to timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that payment can be

made within the 60-day period set forth above.

¶36 This is the final decision of the Merit Systems Protection Board in this

appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.

§ 1201.113(c)).

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

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.

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NOTICE TO THE APPELLANT

REGARDING YOUR RIGHT TO REQUEST

CONSEQUENTIAL 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. §§ 1201.201, 1201.202, and 1201.204. If you believe you

meet these requirements, you must file a motion for consequential 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 further review of this final decision. There

are several options for further review set forth in the paragraphs below. You may

choose only one of these options, and once you elect to pursue one of the avenues

of review set forth below, you may be precluded from pursuing any other avenue

of review.

Discrimination Claims: Administrative Review

You may request review of this final decision on your discrimination

claims by the Equal Employment Opportunity Commission (EEOC). See Title 5

19

of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you

submit your request by regular U.S. mail, the address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit your request via commercial delivery or by a method requiring a

signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, NE

Suite 5SW12G

Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after

your receipt of this order. If you have a representative in this case, and your

representative receives this order before you do, then you must file with EEOC no

later than 30 calendar days after receipt by your representative. If you choose to

file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final decision on your

discrimination claims, you may file a civil action against the agency on both your

discrimination claims and your other claims in an appropriate United States

district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with

the district court no later than 30 calendar days after your receipt of this order. If

you have a representative in this case, and your representative receives this order

before you do, then you must file with the district court no later than 30 calendar

days after receipt by your representative. If you choose to file, be very careful to

file on time. If the action involves a claim of discrimination based on race, color,

religion, sex, national origin, or a disabling condition, you may be entitled to

representation by a court-appointed lawyer and to waiver of any requirement of

20

prepayment of fees, costs, or other security. 42 U.S.C. § 2000e-5(f)

and 29 U.S.C. § 794a.

Other Claims: Judicial Review

If you want to request review of the Board’s decision concerning your

claims of prohibited personnel practices described in 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 the United States Court of Appeals for the Federal Circuit or any

court of appeals of competent jurisdiction to review this final decision. 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.

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 your 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

21

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.

DFAS CHECKLIST

INFORMATION REQUIRED BY DFAS IN

ORDER TO PROCESS PAYMENTS AGREED

UPON IN SETTLEMENT CASES OR AS

ORDERED BY THE MERIT SYSTEMS

PROTECTION BOARD

AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT

CASES

CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL

OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:

1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address

and POC to send.

2. Statement that employee was counseled concerning Health Benefits and TSP and the

election forms if necessary.

3. Statement concerning entitlement to overtime, night differential, shift premium,

Sunday Premium, etc, with number of hours and dates for each entitlement.

4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay

System), a statement certifying any lump sum payment with number of hours and

amount paid and/or any severance pay that was paid with dollar amount.

5. Statement if interest is payable with beginning date of accrual.

6. Corrected Time and Attendance if applicable.

ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:

1. Copy of Settlement Agreement and/or the MSPB Order.

2. Corrected or cancelled SF 50's.

3. Election forms for Health Benefits and/or TSP if applicable.

4. Statement certified to be accurate by the employee which includes:

a. Outside earnings with copies of W2's or statement from employer.

b. Statement that employee was ready, willing and able to work during the period.

c. Statement of erroneous payments employee received such as; lump sum leave, severance

pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew

Retirement Funds.

5. If employee was unable to work during any or part of the period involved, certification of the

type of leave to be charged and number of hours.

NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES

Below is the information/documentation required by National Finance Center to process

payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as

ordered by the Merit Systems Protection Board, EEOC, and courts.

1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise

information describing what to do in accordance with decision.

2. The following information must be included on AD-343 for Restoration:

a. Employee name and social security number.

b. Detailed explanation of request.

c. Valid agency accounting.

d. Authorized signature (Table 63)

e. If interest is to be included.

f. Check mailing address.

g. Indicate if case is prior to conversion. Computations must be attached.

h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to

be collected. (if applicable)

Attachments to AD-343

1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday

Premium, etc. with number of hours and dates for each entitlement. (if applicable)

2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and

amounts.

3. Outside earnings documentation statement from agency.

4. If employee received retirement annuity or unemployment, provide amount and address

to return monies.

5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)

6. If employee was unable to work during any or part of the period involved, certification of

the type of leave to be charged and number of hours.

7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual

Leave to be paid.

NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay

Period and required data in 1-7 above.

The following information must be included on AD-343 for Settlement Cases: (Lump

Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)

a. Must provide same data as in 2, a-g above.

b. Prior to conversion computation must be provided.

c. Lump Sum amount of Settlement, and if taxable or non-taxable.

If you have any questions or require clarification on the above, please contact NFC’s

Payroll/Personnel Operations at 504-255-4630.