Lauranell Burch v. Department of Health and Human Services

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LAURANELL BURCH, DOCKET NUMBER

Appellant, DC-1221-14-0894-W-1

v.

DEPARTMENT OF HEALTH AND DATE: November 16, 2015

HUMAN SERVICES,

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Vanessa Katherine Lucas, Esquire, Raleigh, North Carolina, for

the appellant.

Keith A. Eichenholz, Esquire, and Laura VanderLaan, Esquire, 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,

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

VACATE the initial decision, and REMAND the case to the regional office for

further adjudication in accordance with this Order.

BACKGROUND

¶2 The appellant was employed as a Staff Scientist with the agency’s National

Institute of Environmental Health Sciences (NIEHS) in a time-limited, renewable

position under 42 U.S.C. § 209(g). Initial Appeal File (IAF), Tab 1 at 10. By

letter dated May 26, 2013, the agency informed her that her appointment

would not be extended beyond June 30, 2014, due to budget constraints. Id. She

filed the instant appeal alleging, in part, that her appointment was not renewed in

retaliation for her prior protected disclosures. Id. at 5, 7.

¶3 Regarding her protected disclosures, the appellant alleged the following:

(1) since 2007 she made repeated disclosures to management concerning wasteful

contractor charges, mismanaged research studies, and underutilized facilities;

(2) on April 26, 2013, 2 during a meeting with the NIEHS Scientific Director, she

disclosed underutilization of the microarray core facility laboratories and inflated

contractor costs related to mouse genotyping; (3) on May 5, 2013, she disclosed

inflated contractor charges, Environmental Polymorphism Registry (EPR) study

waste, and personnel mismanagement to the Office of Special Counsel (OSC); 3

and (4) in a May 21, 2013 email to the NIEHS Scientific Director, she disclosed

the underutilization and mismanagement of microarray core staff and molecular

genetics staff, and other waste and mismanagement issues. IAF, Tab 1 at 13-14,

Tab 12 at 18-22, 27. The appellant further alleged that, in retaliation for these

disclosures, the agency took a number of personnel actions against her,

2

The appellant asserts that the meeting occurred on or about April 25, 2013 or April 26,

2013. IAF, Tab 12 at 21.

3

The appellant references her OSC disclosure as being filed on May 3, 2013, however,

according to OSC’s records it was filed on or about May 5, 2013. IAF, Tab 1 at 22,

Tab 12 at 8, 22.

3

culminating in the nonrenewal of her appointment in 2013. 4 IAF, Tab 1 at 10,

13-14, 16.

¶4 Without holding the appellant’s requested hearing, the administrative judge

issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,

Tab 1 at 3, Tab 14, Initial Decision (ID). 5 The administrative judge found that

the appellant failed to make nonfrivolous allegations of protected disclosures. ID

at 6-9. Regarding the appellant’s repeated disclosures since 2007 of wasteful

contractor charges, mismanaged research studies, and underutilized facilities, the

administrative judge found that she failed to identify specifically what she

disclosed, to whom she disclosed it, and when; thus, she failed to satisfy the

requirement that disclosures be detailed and specific. ID at 7-8. Regarding the

appellant’s April 26, 2013 disclosure of inflated contractor costs and the

underutilization of the microarray core facility laboratories, the administrative

judge found that such a claim, even if true, was not a disclosure of gross

mismanagement or a gross waste of funds. ID at 8-9. The administrative judge

also found that an agency’s decision not to renew an appointment under 42 U.S.C.

§ 209(g) is not an action otherwise appealable to the Board. ID at 2-3.

¶5 The appellant has filed a petition for review in which she asserts that the

administrative judge incorrectly identified her disclosures, improperly failed to

address two of her disclosures, and erred in finding that her disclosures were not

protected. Petition for Review (PFR) File, Tab 1 at 12-13, 16-19. The appellant

also asserts that she was denied the opportunity to participate in discovery. Id.

4

The appellant asserts that, in 2012, the agency eliminated her supervisory duties,

micromanaged her, and forced her to change offices. IAF, Tab 12 at 28-29.

5

The initial decision dismissed the appeal for lack of jurisdiction without reaching the

merits; however, the administrative judge improperly stated that “the appellant’s

request for corrective action is DENIED.” ID at 2; Hagen v. Department of

Transportation, 103 M.S.P.R. 595, ¶ 10 (2006) (holding that it is improper to deny a

request for corrective action on the merits without first determining whether the Board

has jurisdiction over the appeal).

4

at 4 n.1. The agency has filed a response in opposition to the appellant’s petition.

PFR File, Tab 3. The appellant has filed a reply. PFR File, Tab 4.

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 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).

The appellant exhausted her administrative remedies before OSC.

¶7 The administrative judge did not make explicit findings on exhaustion, but

rather identified two disclosures and two personnel actions referenced in OSC’s

close-out letter. ID at 5-6. To satisfy the exhaustion requirement, an appellant

must inform OSC of the precise ground of her whistleblowing claim, giving OSC

a sufficient basis to pursue an investigation that might lead to corrective action.

Ward v. Merit Systems Protection Board, 981 F.2d 521, 526 (Fed. Cir. 1992). An

appellant must prove exhaustion by preponderant evidence. See Mason v.

Department of Homeland Security, 116 M.S.P.R. 135, ¶¶ 9-10 (2011) (finding

that an administrative judge failed to provide proper jurisdictional notice

regarding the appellant’s burden to prove exhaustion of the alleged disclosures

and personnel actions). Exhaustion with OSC is a jurisdictional prerequisite to

Board consideration of the substance of the appellant’s allegedly protected

disclosures, Ward, 981 F.2d at 526, and the scope of an IRA appeal is limited to

those disclosures raised before OSC, Sazinski v. Department of Housing & Urban

Development, 73 M.S.P.R. 682, 685 (1997).

5

¶8 The record reflects that the appellant filed a complaint with OSC and

subsequently provided OSC with additional documentation and emails concerning

her claims. IAF, Tab 1 at 11-17; see IAF, Tab 12 at 19, 24-53. Before OSC she

alleged first that she had disclosed waste related to contractor charges,

mismanaged research studies, and underutilized facilities to NIEHS leadership

since 2007. IAF, Tab 1 at 13. She also alleged that she was subsequently forced

to change offices, her supervisory duties were eliminated, and she received an

overly controlling job plan in 2012. IAF, Tab 12 at 28-30.

¶9 Second, she alleged that during a meeting on April 26, 2013, she disclosed

inflated contractor charges related to mouse genotyping and the underutilization

of the microarray core facility to the NIEHS Scientific Director. IAF, Tab 1

at 13. Third, she alleged that she disclosed waste and mismanagement, including

underutilization and mismanagement of the microarray core staff and molecular

genetics staff via a May 21, 2013 email to the NIEHS Scientific Director and

others. Id. at 14. Finally, she alleged that, in a May 5, 2013 OSC disclosure

complaint, she disclosed inflated contractor charges, EPR study waste, and

personnel mismanagement issues resulting in gross waste. Id. The appellant

contended that the agency threatened her job and then declined to renew her

appointment in retaliation for her April and May 2013 disclosures. Id. at 13-14;

IAF, Tab 12 at 21, 31-32. The record includes a copy of an August 30, 2013

letter from OSC summarizing the appellant’s allegations consistent with the

above as well as a May 12, 2014 close-out letter from OSC. IAF, Tab 1 at 21-22,

29. Accordingly, we find that the appellant exhausted her administrative

remedies as to all four of her alleged disclosures, and as to the alleged personnel

actions of changing offices, her job plan, the elimination of her supervisory

6

duties, the threat to terminate or not renew her appointment, and the nonrenewal

of her appointment. 6

The appellant nonfrivolously alleged that she made two protected disclosures.

¶10 A nonfrivolous allegation of a protected disclosure is an allegation of facts

that, if proven, would show that the matter disclosed was one that a reasonable

person in the appellant’s position would believe evidenced one of the situations

specified in 5 U.S.C. § 2302(b)(8). See Mudd v. Department of Veterans Affairs,

120 M.S.P.R. 365, ¶ 8 (2013). At the jurisdictional stage, an appellant is not

required to prove that her disclosure is protected under 5 U.S.C. § 2302(b)(8). Id.

Once an appellant establishes jurisdiction over her IRA appeal, she is entitled to a

hearing on the merits of her claim, which she must prove by preponderant

evidence. Benton-Flores v. Department of Defense, 121 M.S.P.R. 428, ¶¶ 4-5

(2014).

¶11 The appellant alleges that her disclosures revealed gross mismanagement

and gross waste of funds. 7 IAF, Tab 1 at 13-14. An employee discloses a gross

6

An agency’s decision not to renew a title 42 appointment is a personnel action under

5 U.S.C. § 2302(a). See Belyakov v. Department of Health & Human Services,

120 M.S.P.R. 326, ¶ 4 (2013). Further, the threat to take a personnel action, such as a

termination or the nonrenewal of an appointment, is a personnel action. 5 U.S.C.

§ 2302(a)(2)(A)(iii), (v), (vi), (b)(8). In light of our findings below, we find it

unnecessary to reach the issue of whether the appellant’s office change, job plan, or the

elimination of her supervisory duties were personnel actions because the appellant

failed to nonfrivolously allege that the disclosures that preceeded these personnel

actions were protected. IAF, Tab 12 at 28-29; see Hooker v. Department of Veterans

Affairs, 120 M.S.P.R. 629, ¶¶ 3, 6 (2014) (agreeing with an administrative judge’s

finding that an appellant could not prove that his disclosure was a contributing factor in

his proposed removal because the proposed removal was issued prior to the disclosure).

7

The appellant also alleged that each of her disclosures evidenced an abuse of

authority. IAF, Tab 1 at 13-14. Such an abuse 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. Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 15 (2014). There

is no evidence in the record that the appellant disclosed any actions that resulted in

personal gain. Although she alleged that the Scientific Director “prioritized the

purchase of new carpeting for the floor of the module where his office is located, and

also recovered perfectly functional cubicles in cloth of a different color,” IAF, Tab 12

7

waste of funds when she alleges that a more than debatable expenditure is

significantly out of proportion to the benefit reasonably expected to accrue to the

Government. Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶ 10

n.3 (2015).

¶12 Gross mismanagement is more than de minimis wrongdoing or negligence;

it means a management action or inaction that creates a substantial risk of

significant adverse impact on the agency’s ability to accomplish its mission.

Swanson v. General Services Administration, 110 M.S.P.R. 278, ¶ 11 (2008); see

S. Rep. No. 112-155, at 8 (2012), reprinted in 2012 U.S.C.C.A.N. 589, 596

(citing Swanson with approval in a U.S. Senate report on the Whistleblower

Enhancement Protection Act of 2012). The statutory protection for

whistleblowers is not a weapon in arguments over policy or a shield for

insubordinate conduct; policy disagreements with agency decisions or actions

are not protected unless they separately constitute a protected disclosure of one of

the categories of wrongdoing listed in section 2302(b)(8)(A). 5 U.S.C.

§ 2302(a)(2)(D); Webb, 122 M.S.P.R. 248, ¶ 8.

The administrative judge properly found that the appellant failed to

nonfrivolously allege that her repeated disclosures since 2007

were protected.

¶13 The appellant’s first alleged disclosure concerns her repeated disclosures to

management of mismanagement and waste. IAF, Tab 12 at 19-20. We find that

the appellant has not identified the specific disclosures she made, to whom, and

when, despite multiple opportunities to do so. PFR File, Tab 1 at 12 (containing

the appellant’s description of her “repeated disclosures since 2007” as

“[g]enerally disclosing information to different NIEHS leadership”); IAF, Tab 12

at 18 (naming some individuals to whom disclosures were made, but again failing

at 26, she did not allege additional facts from which a reasonable person might

conclude that the expenditure was arbitrary and capricious, or that the Scientific

Director or other preferred individuals personally benefitted from the expenditures.

8

to identify what information was specifically conveyed to whom or when it

was conveyed).

¶14 On her OSC complaint form, the appellant indicated that sometime in the

past she disclosed “to management” that a contractor was charging over $100 or

even $1,500 per mouse tail genotype. IAF, Tab 1 at 13; PFR File, Tab 1 at 17.

She expressed her opinion that $20 would have been an expensive contract price

and that the work could have been performed in-house for less than $1 per

genotype. IAF, Tab 1 at 13. She also asserted that she became aware that

internal facilities were underutilized and work for which internal staff was

available was shifted to expensive contractors, but failed to state whether she

disclosed such information to anyone. Id. In her declaration submitted below,

she similarly contended that she “made repeated disclosures since 2007 reporting

waste, fraud and abuse related to inflated contractor cost, [EPR] study

mismanagement and waste, and wasteful management practices of core facilities

resulting in gross waste” to various management officials. IAF, Tab 12 at 18.

She submitted a document that she described as containing a history and summary

of her disclosures. Id. at 19, 24-34. In this summary, the appellant provided

additional specifics. Id. at 24-28. For example, she asserted that she reported to

her former supervisor that the failure to replace aging equipment led to the loss of

study samples. Id. at 26. However, she provides no context or timeframe from

which we can conclude when the disclosure was made or that it should be

considered protected.

¶15 The appellant has failed to provide sufficient specifics regarding her alleged

repeated disclosures since 2007. Rather, in her summary of disclosures, she

asserts broadly that she “expressed concerns in particular about supervisory

issues regarding the EPR, and discussed EPR delays and problems,” “reported

concerns regarding mismanagement of the EPR study to leadership,” and “related

concerns about spending priorities.” Id. We agree with the administrative judge

that the appellant’s conclusory and vague allegations of disclosures of

9

wrongdoing are insufficient to constitute nonfrivolous allegations of protected

disclosures. ID at 7-8; see Barela v. Merit Systems Protection Board,

388 F. App’x 965, 967 (Fed. Cir. 2010) (finding an appellant’s statements

concerning her alleged disclosures inadequate to establish jurisdiction where they

were “vague, conclusory, and unsupported by any evidentiary allegations”) 8;

Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 14 (2014) (stating that a

disclosure must be specific and detailed, not a vague allegation of wrongdoing).

The administrative judge erred in finding that the appellant failed to

nonfrivolously allege that her April 26, 2013 disclosure was protected.

¶16 As to the appellant’s second disclosure, she alleged that during a meeting

on April 26, 2013, she disclosed to the NIEHS Scientific Director that the

microarray core facility was being mismanaged in that staff were underutilized

and working inefficiently and personnel “were not working much, if at all, in the

laboratories.” 9 IAF, Tab 1 at 13, 26, Tab 12 at 21. We agree with the

administrative judge that, even if true, this alleged conduct does not constitute

gross mismanagement or a gross waste of funds. ID at 8-9. There is no evidence

of what other duties staff performed while not working in the laboratories, or

otherwise to suggest that other duties were not a better use of the employee’s time

and the agency’s resources. In any event, the appellant has not alleged that a

disinterested person in her position could reasonably believe there was a risk of

significant adverse impact on the agency’s mission or an expenditure significantly

out of proportion to the reasonably anticipated benefit. See Webb, 122 M.S.P.R.

248, ¶ 10 n.3; Swanson, 110 M.S.P.R. 278, ¶ 11.

8

The Board has held that it may rely on unpublished decisions of the U.S. Court of

Appeals for the Federal Circuit if it finds the reasoning persuasive. Graves v.

Department of Veterans Affairs, 114 M.S.P.R. 245, ¶ 11 n.2 (2010).

9

She claims that one individual told her that he was working at approximately one-sixth

of his prior speed, and that the budget officer advised her that productivity “had been

down for years without any reduction in budget, staffing or management.” PFR File,

Tab 1 at 19; IAF, Tab 12 at 30.

10

¶17 However, the appellant also asserted that, during this same meeting, she

disclosed that the same contractor at issue in her first disclosure was

overcharging for mouse genotyping. IAF, Tab 1 at 13. She contended that the

contractor was charging $1,500 per mouse when the work could have been

performed in-house for less than $1 per mouse and that one investigator

contracted out $1 million in a year genotyping a single mouse strain. PFR File,

Tab 1 at 5; IAF, Tab 12 at 14, 27, 41. The appellant’s allegations regarding

overcharging by the contractor are supported by evidence in the record that the

agency found her concerns to be “fully justified” and after looking into the

allegations, it terminated the use of the contract. IAF, Tab 13 at 19.

¶18 Taken together, we construe the appellant’s claims as an allegation that she

disclosed that employees were being underutilized and, instead, work which could

have been performed in-house was being contracted out at a high cost. We find

that a disinterested person in the appellant’s position could reasonably believe

that that this constituted a gross waste of funds. See, e.g., Parikh v. Department

of Veterans Affairs, 110 M.S.P.R. 295, ¶ 18 (2008) (finding the appellant made a

nonfrivolous allegation that his disclosure that the agency continued to pay for a

full staff, despite the fact that the facility had been scheduled to close and had

substantially decreased its workload, was a nonfrivolous allegation of a disclosure

of a gross waste of funds). Accordingly, we find that the appellant nonfrivolously

alleged that her disclosure of this contract expenditure was protected.

The administrative judge failed to address two of the appellant’s

disclosures, one of which she nonfrivolously alleged is protected.

¶19 We agree with the appellant that the administrative judge erred in failing to

address two of her claimed disclosures, instead considering only those disclosures

referenced in OSC’s close-out letter. PFR File, Tab 1 at 12-13; ID at 6; IAF,

Tab 12 at 56. The administrative judge improperly failed to consider the

appellant’s May 5, 2013 disclosure to OSC or her May 21, 2013 internal

disclosure, both of which she identified in her OSC complaint attached to her

11

initial appeal as well as articulated in her brief on jurisdiction. IAF, Tab 1

at 13-14, Tab 12 at 5-9. Thus, we address the appellant’s additional disclosures

on review, finding that she made a nonfrivolous allegation that one of these

disclosures was protected.

¶20 The appellant alleged that, on May 5, 2013, she disclosed to OSC the

agency’s “inflated contractor charges, EPR study waste and personnel

mismanagement issues resulting in gross waste.” IAF, Tab 1 at 14, Tab 12 at 22.

While a disclosure to OSC can be protected, see 5 U.S.C. § 2302(b)(8)(B), the

appellant has not submitted a copy of her disclosure statement and it is not clear

from the record what specifically she disclosed. We have previously determined

that the appellant’s broad contentions that she disclosed inflated contractor

charges, EPR study waste, and personnel mismanagement issues resulting in gross

waste to be too vague and conclusory to constitute nonfrivolous allegations of

protected disclosures. See supra ¶¶ 13-15.

¶21 The appellant also specifies that she informed OSC that the agency replaced

an experienced investigator managing the EPR study with other inexperienced or

less experienced individuals. IAF, Tab 12 at 14, 24-25; PFR File, Tab 1 at 6.

She states that this change ultimately resulted in genotyping delays, and required

additional “months of effort” by agency employees at “significant salary

expenditure.” IAF, Tab 12 at 14, 25; PFR File, Tab 1 at 7. We find that the

appellant has failed to nonfrivolously allege sufficient facts to establish that a

reasonable person could conclude that this management decision created a

substantial risk of significant adverse impact upon the agency’s ability to

accomplish its mission or constituted an expenditure significantly out of

proportion to the benefit reasonably expected to accrue.

¶22 Finally, the administrative judge failed to address the appellant’s fourth

disclosure, an email to NIEHS leadership on May 21, 2013, which the appellant

characterizes as a disclosure regarding “underutilization and mismanagement of

microarray core staff and molecular genetics staff, and other waste and

12

mismanagement issues.” IAF, Tab 1 at 14. In her email, which is a part of the

record below, the appellant asserted that certain managers lacked the technical

knowledge and ability to manage the facility and to advise individuals in their

work, expressed her disagreement with management’s decisions, and urged that

she be returned to supervising the molecular genetics staff because of her superior

knowledge of the work being performed. IAF, Tab 12 at 32-34. We find that the

appellant has failed to nonfrivolously allege sufficient facts to establish that a

reasonable person could conclude that such matters constituted a disclosure of a

gross waste of funds or gross mismanagement. Rather, the appellant was voicing

her disagreement with management’s policy decisions. See 5 U.S.C.

§ 2302(a)(2)(D); Webb, 122 M.S.P.R. 248, ¶ 8.

¶23 In her email, the appellant also disagreed with a recent decision to renew an

equipment servicing contract for $35,000. IAF, Tab 12 at 33. She identified an

agency employee who had successfully performed the servicing maintenance on

the equipment for years and alleged that this individual could have performed the

majority of the contract work in-house for no cost. Id. According to the

appellant, any work that could not have been performed in-house could have been

contracted out “for about 3k in cost.” Id. We find that the appellant has made a

nonfrivolous allegation that a reasonable person in her position would believe that

it was a gross waste of funds for the agency to renew the contract rather than

perform the work itself at a fraction of the cost. See Smith v. Department of the

Army, 80 M.S.P.R. 311, ¶¶ 8, 10 (1998) (finding that the appellant made a

nonfrivolous allegation that he had disclosed a gross waste of funds by disclosing

that the agency spent $15,000 on a fuel management system that would provide

no benefit to the Government because the new system provided the same

information as the system it replaced); Van Ee v. Environmental Protection

Agency, 64 M.S.P.R. 693, 698 (1994) (finding the appellant’s disclosure

regarding an expenditure of $400,000 for an allegedly unnecessary research study

was a nonfrivolous allegation of gross waste of funds).

13

The appellant nonfrivolously alleged that her disclosures were a contributing

factor in the agency’s decision not to renew her contract.

¶24 The final jurisdictional inquiry is whether the appellant made a

nonfrivolous allegation that her April 26, 2013 and May 21, 2013 disclosures

were a contributing factor in the agency’s alleged threat to her employment and

decision not to renew her appointment. The record reflects that the NIEHS

Scientific Director, the official who allegedly threatened the appellant’s job and

made the decision not to renew her appointment, IAF, Tab 1 at 10, knew of the

two disclosures because they were made directly to him, IAF, Tab 1 at 13, Tab 12

at 7, 32-33. Further, the appellant alleges that, during a meeting on May 23,

2013, her supervisor informed her that her appointment would not be extended

beyond June 30, 2014, and read her a “termination letter” written by the NIEHS

Scientific Director. IAF, Tab 12 at 51.

¶25 To make a nonfrivolous allegation that a disclosure was a contributing

factor in the agency’s decision to take a personnel action, an appellant need only

raise a nonfrivolous allegation that the fact of, or content of, the protected

disclosure was one factor that tended to affect a personnel action in any way.

Mason, 116 M.S.P.R. 135, ¶ 26. One way to establish this criterion is the

“knowledge-timing test,” under which an employee may nonfrivolously allege

that the disclosure was a contributing factor in a personnel action through

circumstantial evidence, such as evidence that the official taking the personnel

action knew of the disclosure, and that the personnel action occurred within a

period of time such that a reasonable person could conclude that the disclosure

was a contributing factor in the personnel action. 5 U.S.C. § 1221(e)(1); Mason,

116 M.S.P.R. 135, ¶ 26. Once the appellant has made a nonfrivolous allegation

that the knowledge-timing test has been met, she has met her jurisdictional

burden concerning the contributing factor criterion. Mason, 116 M.S.P.R. 135,

¶ 26.

14

¶26 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, 120 M.S.P.R. 365, ¶ 10. Thus, we find that the appellant made a

nonfrivolous allegation that she made protected disclosures that contributed to a

threat to her employment and the nonrenewal of her appointment. Accordingly,

she is entitled to a hearing on the merits of her claim. See Rusin v. Department of

the Treasury, 92 M.S.P.R. 298, ¶ 20 (2002) (explaining that an appellant is

entitled to a hearing on the merits if she makes the required nonfrivolous

allegations of the elements of an IRA appeal).

The administrative judge did not abuse his discretion concerning discovery.

¶27 Lastly, we find unavailing the appellant’s argument that she was denied the

opportunity to participate in discovery below. PFR File, Tab 1 at 4. The record

reflects that the administrative judge made no rulings on discovery and the

appellant did not file a motion to compel. See Szejner v. Office of Personnel

Management, 99 M.S.P.R. 275, ¶ 5 (2005) (determining that an appellant’s failure

to file a motion to compel below precluded him from raising a discovery dispute

for the first time on petition for review), aff’d, 167 F. App’x 217 (2006).

ORDER

¶28 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.