Thasha A. Boyd v. Department of Labor

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

THASHA A. BOYD, DOCKET NUMBERS

Appellant, AT-3443-13-7178-B-1

AT-1221-13-3375-B-1

v.

DEPARTMENT OF LABOR,

and DATE: March 10, 2016

DEPARTMENT OF HOMELAND

SECURITY,

Agencies.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Thasha A. Boyd, Kennesaw, Georgia, pro se.

Uche N. Egemonye, Esquire, Atlanta, Georgia, for the Department

of Labor.

Beverly R. Brooks, Esquire, Washington, D.C., for the Department of

Homeland Security.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

FINAL ORDER

¶1 The appellant has filed petitions for review of two initial decisions, which

denied her requests for corrective action in these individual right of action (IRA)

appeals. We CONSOLIDATE the appeals because we have determined that doing

so will expedite processing of the cases and will not adversely affect the parties’

interests. 5 C.F.R. § 1201.36. Generally, we grant a petition only when: the

initial decision contains erroneous findings of material fact; the initial decision is

based on an erroneous interpretation of statute or regulation or the erroneous

application of the law to the facts of the case; the administrative 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

these appeals, we conclude that the petitioner has not established any basis under

section 1201.115 for granting the petitions for review. Therefore, we DENY the

petitions for review and AFFIRM the initial decisions, AS MODIFIED, to

VACATE the finding that the Department of Homeland Security (DHS) proved by

clear and convincing evidence that it would have rescinded the appellant’s

tentative job offer in the absence of her whistleblowing.

¶2 This case was docketed as three separate IRA appeals against the Office of

Personnel Management (OPM), Department of Labor (DOL), and DHS, the three

parties named by the appellant. Boyd v. Office of Personnel Management, MSPB

Docket No. AT-0731-13-7162-I-1 (Boyd I), Initial Appeal File (7162 IAF);

Boyd v. Department of Labor, MSPB Docket No. AT-3443-13-7178-I-1 (Boyd II),

Initial Appeal File (7178 IAF); Boyd v. Department of Homeland Security, MSPB

Docket No. AT‑1221‑13-3375-W-1 (Boyd III), Initial Appeal File (3375 IAF). In

3

short, the appellant alleged that each of the agencies engaged in whistleblower

reprisal in connection with protected disclosures she made at DOL, her former

employer, and the rescission of a tentative job offer at DHS, her prospective

employer. E.g., 7178 IAF, Tab 1 at 4‑10.

¶3 The administrative judge dismissed Boyd I for lack of jurisdiction, and we

affirmed. See Boyd v. Office of Personnel Management, MSPB Docket No.

AT-0731-13-7162-I-1, Final Order (Nov. 21, 2014). 2 The administrative judge

also dismissed Boyd II and Boyd III for lack of jurisdiction, 7178 IAF, Tab 10,

Initial Decision; 3375 IAF, Tab 11, Initial Decision, but we granted the

appellant’s petitions for review and remanded those cases to be heard on the

merits, Boyd v. Department of Labor, MSPB Docket No. AT-3443-13-7178-I-1,

Remand Order (Nov. 21, 2014) (7178 Remand Order); Boyd v. Department of

Homeland Security, MSPB Docket No. AT-1221-13-3375-W-1, Remand Order

(Nov. 24, 2014).

¶4 On remand, the administrative judge consolidated Boyd II and Boyd III for

purposes of developing the record. Boyd v. Department of Labor, MSPB Docket

No. AT-3443-13-7178-B-1, Remand File (7178 RF), Tab 3; Boyd v. Department

of Homeland Security, MSPB Docket No. AT-1221-13-3375-B-1, Remand File

(3375 RF), Tab 4. Thereafter, he issued separate decisions, each denying the

appellant’s requests for corrective action. 3 7178 RF, Tab 38, Remand Initial

Decision (7178 RID); 3375 RF, Tab 18, Remand Initial Decision (3375 RID).

¶5 The appellant has filed similar petitions for review of the Boyd II and

Boyd III remand initial decisions. Boyd v. Department of Labor, MSPB Docket

No. AT-3443-13-7178-B-1, Petition for Review (7178 PFR) File, Tab 1; Boyd v.

Department of Homeland Security, MSPB Docket No. AT-1221-13-3375-B-1,

2

Boyd I is not at issue here.

3

The administrative judge issued the decisions on the written record because the

appellant withdrew her hearing request. 7178 RF, Tab 24 at 1.

4

Petition for Review (3375 PFR) File, Tab 1. DOL and DHS each filed a response.

7178 PFR File, Tab 3; 3375 PFR File, Tab 3.

The appellant failed to meet her burden of proving whistleblower reprisal.

¶6 To prevail on the merits of an IRA appeal, an appellant must establish by a

preponderance of the evidence that she made a protected disclosure

under 5 U.S.C. § 2302(b)(8) that was a contributing factor in an agency’s

personnel action. Aquino v. Department of Homeland Security, 121 M.S.P.R. 35,

¶ 10 (2014). If the appellant is able to offer such proof, the Board must order

corrective action unless the agency can establish by clear and convincing

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

disclosure. Id.

¶7 In one of several prior appeals involving the appellant, the Board confirmed

that the disclosures she relied on in the instant appeals were protected. See, e.g.,

7178 RF, Tab 27 at 6; Boyd v. Department of Labor, Docket Nos. AT‑1221-12-

0456-W-1 & AT-1221-12-0665-W-1, Final Order at 7 (Sept. 17, 2013). 4

However, the administrative judge found that the appellant failed to meet her

burden of proving the other requisite elements of whistleblower reprisal in the

instant appeals. 7178 RID at 12-17; 3375 RID at 10‑14.

Boyd II

¶8 In the appeal against DOL, the administrative judge found that the appellant

failed to prove that the agency took a “personnel action” against her in connection

with DHS’s rescinded job offer. 7178 RID at 12-17. We agree.

4

The protected disclosures were the appellant’s letters to the Government

Accountability Office in May 2010 and April 2011, while employed at DOL, requesting

investigation into the operations of the Office of Foreign Labor Certification as it

related to a lack of production standards, frequent breaks, pay inequality, questionable

hiring practices, misuse of Government equipment, and poor training. See Boyd, MSPB

Docket Nos. AT‑1221-12-0456-W-1 & AT-1221-12-0665-W-1, Final Order at 3 n.4

(Sept. 17, 2013).

5

¶9 The appellant generally alleged that two of her former supervisors at DOL

were in positions to be able to provide negative employment references

concerning a tentative job offer for her at DHS. 7178 IAF, Tab 5 at 4-5. She

surmised that these DOL supervisors provided such references to prevent her

appointment elsewhere in retaliation for her whistleblowing. Id. at 5. As we

remanded the matter for a hearing on the merits, we noted that the allegations

could be construed as DOL blacklisting her from future employment, which could

constitute a personnel action. 7178 Remand Order, ¶¶ 9-10; see 5 U.S.C.

§ 2302(a)(2)(A) (defining “personnel action” for purposes of the Whistleblower

Protection Act); Mattil v. Department of State, 118 M.S.P.R. 662, ¶ 23 (2012)

(recognizing that although “blacklisting” is not an enumerated personnel action

under 5 U.S.C. § 2302(a)(2)(A), construed broadly, it could constitute a failure to

appoint, which would be properly before the Board in an IRA appeal if an

appellant identifies particular employment opportunities that the agency denied as

part of the alleged “blacklisting”).

¶10 On remand, the administrative judge found that, although the appellant

speculated about her former DOL supervisors providing negative references in

reprisal for her whistleblowing, the evidence demonstrated that they did not

provide references at all, based upon agency policy and ongoing litigation. 5

7178 RID at 12-15. The appellant’s petition for review seems to further speculate

that DOL may have provided a negative reference to DHS in reprisal for her

whistleblowing. 7178 PFR File, Tab 1 at 14-15. She alleges that the

5

The record does not establish that the ongoing litigation, which appears to be a

defamation lawsuit, was protected activity subject to the Board’s jurisdiction over IRA

appeals. See 7178 RF, Tab 20, Subtab 4e at 82‑85; Mudd v. Department of Veterans

Affairs, 120 M.S.P.R. 365, ¶ 7 (2013) (recognizing that the Board’s jurisdiction over

IRA appeals includes claims alleging that an agency took a personnel action because of

the employee’s exercise of any appeal, complaint, or grievance right granted by any

law, rule, or regulation with regard to remedying a violation of 5 U.S.C. § 2302(b)(8)).

6

administrative judge erred in crediting the statements of DOL employees because

the agency is not trustworthy. Id. at 15-16. We find no merit to her arguments.

¶11 The evidence demonstrates that the pertinent DOL component had a policy

of providing employment dates but no other substantive information in response

to reference checks for prior employees. See 7178 RF, Tab 21 at 11, 15‑16.

Consistent with that policy, records from individuals investigating the appellant’s

background for the DHS vacancy reflect DOL’s refusal to provide additional

information. 7178 RF, Tab 17 at 19, Tab 21 at 13. Although the appellant

disagrees with the findings of the administrative judge, who credited the

aforementioned evidence, including statements of pertinent DOL officials

concerning DOL policy and inquiries about her prior employment, her mere

disagreement does not warrant disturbing the initial decision. See Crosby v. U.S.

Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the

administrative judge’s findings when she considered the evidence as a whole,

drew appropriate inferences, and made reasoned conclusions); Broughton v.

Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).

As discussed above, it was the appellant’s burden to prove her claim. See

Aquino, 121 M.S.P.R. 35, ¶ 10. Because the appellant’s allegations were not

supported by persuasive evidence, we agree with the administrative judge’s

conclusion that she failed to meet that burden; she thus failed to establish that her

protected disclosures were a contributing factor in a DOL personnel action.

Boyd III

¶12 In the appeal against DHS, the administrative judge found that the appellant

failed to prove that her protected disclosures at DOL were a contributing factor in

DHS’s rescission of its tentative job offer. 6 3375 RID at 10‑14. We agree.

6

The administrative judge also found that DHS proved by clear and convincing

evidence that it would have rescinded the tentative job offer in the absence of the

appellant’s whistleblowing. 3375 RID at 14-15. However, because the appellant failed

to prove that her whistleblowing was a contributing factor in the rescission of the

7

¶13 The most common way of proving that a disclosure was a contributing

factor in a personnel action is the knowledge/timing test. Shannon v. Department

of Veterans Affairs, 121 M.S.P.R. 221, ¶ 23 (2014). 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.

¶14 The agency’s tentative selection of the appellant for its Citizenship and

Immigration Services (CIS) vacancy occurred in October 2012. 7178 RF,

Tab 20, Subtab 4b. Over the following months, the agency’s Office of Security

and Integrity (OSI) and the appellant engaged in back and forth communications,

in an attempt to complete her background investigation. See, e.g., 7178 RF,

Tab 20, Subtabs 4d-4q. Because that investigation was still pending as of

March 2013, CIS contacted OSI, requesting an update on when it would be

completed. 7178 RF, Tab 20, Subtab 4s at 3. OSI responded, indicating that it

could not provide any estimate “due to the complexity of [the appellant’s]

security case.” Id. at 2. Two weeks later, CIS rescinded the tentative job offer,

citing the aforementioned delay and a need to fill the position immediately.

7178 RF, Tab 20, Subtab 4t, Tab 30 at 50‑51.

¶15 Although the appellant revealed her disclosures to OSI as part of her

background investigation just months before CIS rescinded her job offer, the

agency presented evidence that the information was not relayed to the selecting

official or anyone else outside of OSI. Compare, e.g., 7178 RF, Tab 20,

Subtab 4e at 4 (the appellant’s responses to the background investigation,

tentative job offer, the administrative judge erred in reaching that issue. See Clarke v.

Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19 n.10 (2014) (recognizing that

the Board may not proceed to the clear and convincing evidence test unless it has first

made a finding that the appellant established his prima facie case), aff’d,

No. 2014-3013, 2015 WL 8538501 (Fed. Cir. Dec. 11, 2015). We therefore vacate the

administrative judge’s clear and convincing finding.

8

including information concerning lawsuits involving her allegations of

whistleblower reprisal at DOL), with 7178 RF, Tab 30 at 50-51 (declaration of the

CIS selecting official, P.O., denying any knowledge of the appellant’s

whistleblowing and explaining that the rescission was necessary to fill the

vacancy expeditiously), 54-55, 58-59, 61-62, 64-65 (declarations from R.M.,

K.A., C.F., and R.H., individuals with OSI, explaining that the processing of an

applicant’s background investigation does not include revealing responses to a

selecting official; denying any communications with the selecting official for the

appellant’s vacancy; and denying any involvement in the decision to rescind the

appellant’s tentative job offer). In the absence of contrary evidence, the

administrative judge found that the selecting official had no knowledge of the

appellant’s whistleblowing at DOL, and the appellant failed to demonstrate that

her protected disclosures at DOL were a contributing factor in the rescission of

the tentative job offer at DHS. 3375 RID at 10‑14.

¶16 On review, the appellant alleges that the administrative judge erred because

he failed to consider whether the selecting official, P.O., had constructive

knowledge of her whistleblowing. E.g., 3375 PFR File, Tab 1 at 9-14. As an

initial matter, we note that the appellant did not clearly argue that the selecting

official had constructive knowledge of her whistleblowing below. See 7178 RF,

Tab 27 at 10, 24-25; see generally Banks v. Department of the

Air Force, 4 M.S.P.R. 268, 271 (1980) (discussing that the Board generally

will not consider an argument raised for the first time in a petition for review

absent a showing that it is based on new and material evidence not previously

available despite the party’s due diligence). Moreover, although the appellant

asserts that the administrative judge should have considered the possibility, we

are not persuaded that constructive knowledge applies in this case.

¶17 An appellant may show that a protected disclosure was a contributing factor

by proving that the official taking the action had constructive knowledge of the

protected disclosure, even if the official lacked actual knowledge. Nasuti v.

9

Department of State, 120 M.S.P.R. 588, ¶ 7 (2014). An appellant may establish

constructive knowledge by demonstrating that an individual with actual

knowledge of her disclosure influenced the official accused of taking the

retaliatory action. Id.

¶18 As detailed above, the record reflects that the parties with actual knowledge

of the appellant’s whistleblowing merely declined to provide an estimate on when

her background investigation would be completed. E.g., 7178 RF, Tab 20,

Subtab 4s at 2-3, Tab 30 at 50-51, 54-55, 58-59, 61-62, 64‑65. The appellant

has not identified any persuasive argument or evidence that the individuals with

knowledge of her disclosures influenced the selecting official’s decision to

rescind the tentative job offer. Cf. Aquino, 121 M.S.P.R. 35, ¶¶ 21-24 (finding

that an appellant proved contributing factor through constructive knowledge

where his supervisor reported concerns about the quality of his work just days

after learning that he made disclosures, and higher-level agency officials

exclusively relied on those concerns in removing the appellant). While the

appellant seems to suggest that the agency’s evidence primarily consists of

self-serving sworn declarations, it was her burden to prove that her disclosures

were a contributing factor in the agency’s personnel action. 7 See

Aquino, 121 M.S.P.R. 35, ¶ 10. Accordingly, we agree with the administrative

judge’s conclusion that the appellant failed meet her burden; she therefore failed

to prove that her protected disclosures at DOL were a contributing factor in the

rescission of her tentative job offer at DHS.

7

To the extent that the appellant also has argued that the administrative judge erred in

crediting “self-serving” statements of DHS officials to find that the agency proved by

clear and convincing evidence that it would have rescinded the tentative job offer in the

absence of her whistleblowing, see 3375 PFR File, Tab 1 at 10-13, we need not address

the argument because we are vacating the administrative judge’s clear and

convincing analysis.

10

The appellant has failed to establish any other basis for disturbing the

initial decisions.

¶19 The appellant alleges that the administrative judge erred by denying her

motions to subpoena nonparties S.B. and R.R. below. 8 E.g., 3375 PFR File, Tab 1

at 5‑9. We disagree. A subpoena request “must identify specifically the books,

papers, or testimony desired.” 5 C.F.R. § 1201.81(b). The request also must “be

supported by a showing that the evidence sought is directly material to the issues

involved in the appeal.” 5 C.F.R. § 1201.81(c). The appellant’s subpoena

requests failed to meet those standards. Rather than specifically identifying

material information that she sought, the appellant generally and repeatedly

requested that the administrative judge order S.B. and R.R. to “respond to any

and all requests made by appellant for documents, evidence, scheduled

depositions and/or scheduled testimony regarding and related to the instant

appeal.” E.g., 7178 RF, Tab 5 at 4, Tab 10 at 4, Tab 22 at 8. Accordingly, we

find that the administrative judge did not abuse his discretion and that he properly

denied the motions to subpoena nonparties S.B. and R.R. 7178 RF, Tab 24 at 5-7;

7178 RID at 2-3; see generally Ryan v. Department of the

Air Force, 117 M.S.P.R. 362, ¶ 5 (2012) (finding that the Board will not reverse

an administrative judge’s rulings on discovery matters, the exclusion of

witnesses, and rulings concerning proceedings absent an abuse of discretion).

¶20 The appellant also alleges that the administrative judge’s processing of the

appeals included a number of factual errors. E.g., 3375 PFR File, Tab 1 at 14‑15.

For example, she alleges that a portion of a prehearing conference summary

discussing a motion to compel referred to DHS, when it should have referred to

8

The appellant identified S.B. as the Federal contractor responsible for conducting her

background investigation concerning DHS’s tentative job offer. 7178 RF, Tab 10 at 4.

She identified R.R. as the former DOL employee responsible for issuing the DOL

policy concerning responses to job referrals and background investigations that

permitted only the release of beginning and end dates of employees without referral to a

separate DOL component. 7178 RF, Tab 5 at 4-5, 11‑12.

11

DOL. Id. at 14. Another example is the appellant’s allegation that the

background discussions in the initial decisions refer to DOL imposing a 10‑day

suspension when, in fact, she resigned from her position before the agency had

the opportunity to impose the suspension. E.g., 3375 PFR File, Tab 1 at 14.

However, the appellant has failed to demonstrate how these alleged errors were

harmful to her substantive rights. See Panter v. Department of the

Air Force, 22 M.S.P.R. 281, 282 (1984) (explaining that an adjudicatory error

that is not prejudicial to a party’s substantive rights provides no basis for reversal

of an initial decision).

¶21 Finally, the appellant seems to assert that the administrative judge was

biased against her. E.g., 3375 PFR File, Tab 1 at 8, 15. For example, she

suggests that the administrative judge denied her motions in an effort to aid the

agencies’ litigation of these cases and delayed the processing of her appeals

without reason. Id. She also refers to the fact that we previously remanded the

appeals, suggesting that those remands are proof that the administrative judge

has not carefully considered her claims. Id. at 15. We find no merit to these

allegations. See Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386

(1980) (holding that, in making a claim of bias or prejudice against an

administrative judge, a party must overcome the presumption of honesty and

integrity that accompanies administrative adjudicators); see also Bieber v.

Department of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (discussing

that an administrative judge’s conduct during the course of a Board proceeding

warrants a new adjudication only if the administrative judge’s comments or

actions evidence “a deep-seated favoritism or antagonism that would make fair

judgment impossible”) (quoting Liteky v. United States, 510 U.S. 540,

555 (1994)).

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NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decisions, as supplemented by this Final Order, constitute the

Board’s final decisions in these matters. 5 C.F.R. § 1201.113. You have the

right to request review of this final decision by the U.S. Court of Appeals for the

Federal Circuit.

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 U.S. 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 U.S. 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 U.S. 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 U.S. Code, at our

13

website, http://www.mspb.gov/appeals/uscode.htm. Additional information about

the U.S. 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 the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

If you are interested in securing pro bono representation for an appeal to

the U.S. 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.