The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2016 MSPB 30
Docket No. CH-1221-15-0517-W-1
Cleophas Bradley, Jr.,
Appellant,
v.
Department of Homeland Security,
Agency.
September 1, 2016
Joyce E. Kitchens, Esquire, Atlanta, Georgia, for the appellant.
Robert Gerleman, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review,
REVERSE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Order.
BACKGROUND
¶2 The appellant is employed at the Federal Protective Service (FPS or the
agency) as a GS-14 Deputy Regional Director for Region 5. Initial Appeal File
(IAF), Tab 4 at 16. The appellant filed a previous IRA appeal alleging that he
had been retaliated against for making protected whistleblowing disclosures when
2
the agency conducted a series of investigations and issued him a letter of
counseling. Bradley v. Department of Homeland Security, MSPB Docket
No. CH-1221-14-0831-W-2, Initial Decision (Feb. 4, 2015). The appellant’s
prior IRA appeal was dismissed based on a finding that he had not made a
nonfrivolous allegation that the agency took a personnel action as defined by
5 U.S.C. § 2302(a)(2). Id.
¶3 The appellant filed the current IRA appeal, identifying the same protected
disclosures and retaliatory actions, and additionally alleging that he was not
selected for the Region 5 Director position in retaliation for whistleblowing
disclosures. IAF, Tab 1. The administrative judge issued a show cause order
advising the appellant of the jurisdictional requirements for an IRA appeal based
on retaliation for protected disclosures under 5 U.S.C. § 2302(b)(8). IAF, Tab 3.
She directed the appellant to identify the protected disclosures and personnel
actions that were the subject of his IRA appeal and to present evidence and
argument establishing a nonfrivolous allegation of jurisdiction. Id. at 6-7. The
administrative judge granted the agency’s motion to stay discovery pending a
ruling on jurisdiction. IAF, Tab 16.
¶4 After considering the parties’ jurisdictional submissions, the administrative
judge issued a decision, without holding a hearing, finding that the appellant
failed to make a nonfrivolous allegation of jurisdiction because he had not
nonfrivolously alleged that his disclosures were a contributing factor in the
agency’s decision not to select him for the Director position. IAF, Tab 19, Initial
Decision (ID) at 10-13. Applying the doctrine of collateral estoppel, the
administrative judge declined to address the appellant’s allegations that he was
subjected to retaliatory investigations and a retaliatory letter of counseling
because those personnel actions were raised in his prior appeal. ID at 7-10.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The appellant also has filed numerous documents relating to his
claims as a supplement to his petition for review. PFR File, Tab 2. The agency
3
has filed an opposition arguing that the appellant’s petition does not satisfy the
criteria for review. PFR File, Tab 4.
ANALYSIS
¶6 The Board has jurisdiction over an IRA appeal based on whistleblower
reprisal under the Whistleblower Protection Act (WPA) if the appellant has
exhausted his administrative remedies before the Office of Special Counsel
(OSC) and makes nonfrivolous allegations of the following: (1) he engaged in
whistleblowing activity by making a protected disclosure; and (2) the disclosure
was a contributing factor in the agency’s decision to take or fail to take a
personnel action. 1 Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371
(Fed. Cir. 2001). A nonfrivolous allegation is an assertion that, if proven, could
establish the matter at issue. Lewis v. Department of Defense, 123 M.S.P.R. 255,
¶ 7 (2016); 5 C.F.R. § 1201.4(s). Whether allegations are nonfrivolous is
determined on the basis of the written record. Usharauli v. Department of
Health & Human Services, 116 M.S.P.R. 383, ¶ 19 (2011). Any doubt or
ambiguity as to whether the appellant made nonfrivolous jurisdictional
allegations should be resolved in favor of finding jurisdiction. Id. The parties
do not dispute, and we find no reason to disturb, the administrative judge’s
finding that the appellant sought corrective action from OSC based on his
allegation that he was being retaliated against for whistleblowing disclosures, and
he did not receive notice within 120 days that OSC would seek corrective action
1
The Whistleblower Protection Enhancement Act (WPEA) clarified, in relevant part,
that a disclosure made to a supervisor or to a person who participated in the activity
that is the subject of the disclosure, or a disclosure made during the normal course of
duties of an employee are not excluded from 5 U.S.C. § 2302(b)(8). Day v. Department
of Homeland Security, 119 M.S.P.R. 589, ¶¶ 18-26 (2013).
4
on his behalf. 2 IAF, Tab 1 at 7, 22-24, Tab 4 at 10-41; see 5 U.S.C.
§ 1214(a)(3)(B).
The appellant nonfrivolously alleged that he made protected disclosures.
¶7 A protected disclosure is a disclosure of information that the appellant
reasonably believes evidences any violation of any law, rule, or regulation, 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). At the
jurisdictional stage, the appellant only is burdened with making a nonfrivolous
allegation that he reasonably believed that his disclosure evidenced one of the
circumstances described in 5 U.S.C. § 2302(b)(8). Schoenig v. Department of
Justice, 120 M.S.P.R. 318, ¶ 8 (2013). The proper test for determining whether
an employee had a reasonable belief that his disclosures were protected is
whether a disinterested observer with knowledge of the essential facts known to
and readily ascertainable by the employee could reasonably conclude that the
disclosure evidenced one of the circumstances described in 5 U.S.C.
§ 2302(b)(8). Schoenig, 120 M.S.P.R. 318, ¶ 8.
¶8 The administrative judge found that, by a generous reading of the
appellant’s OSC complaint, he alleged that he made approximately nine protected
disclosures between March 23 and September 2, 2011. 3 ID at 8. The appellant
2
The administrative judge also found that, to the extent that the appellant’s filings
before the Board contained additional alleged whistleblowing disclosures that were not
included in the complaint to OSC, they could not be considered because there was
insufficient evidence showing that the appellant had exhausted his remedies on those
allegations before OSC. ID at 6-7. We agree with this finding.
3
The administrative judge also found that additional alleged disclosures that occurred
after the personnel actions at issue could not have been a contributing factor in those
personnel actions. ID at 8 n.2. We find no reason to disturb this finding on review.
See Mason v. Department of Homeland Security, 116 M.S.P.R. 135, ¶ 27 (2011)
(finding that disclosures occurring after the personnel actions at issue could not have
been contributing factors in those actions).
5
identified ten disclosures in the complaint he filed with OSC. 4 IAF, Tab 4
at 16‑32. The appellant argues that all of the disclosures identified are protected.
PFR File, Tab 1 at 4. He also argues that he cannot address the “deficiencies” in
the disclosure that the administrative judge found was not protected because she
did not state which disclosure she found not protected. Id. at 5. After careful
consideration of the appellant’s OSC complaint, we find that he nonfrivolously
alleged that he made the following protected disclosures:
1. An email that the appellant wrote was forwarded by his first-level
supervisor to the FPS Director, Deputy Director, and Chief of
Staff, in which he reported that ten contract security officers
had not received updated suitability determinations in violation of
the terms of the contract and FPS policies and procedures, IAF,
Tab 4 at 17;
2. On March 30, 2011, the appellant’s first-level supervisor
disclosed to the FPS Deputy Director that he and the appellant
had determined that 224 contract security officers within the
Region did not have the appropriate suitability determinations and
172 security officers were improperly working on the regional
contracts, id. at 18;
3. On May 10 and 18, 2011, the appellant’s first-level supervisor
disclosed to the Assistant Director of Field Operations that he and
the appellant had determined that 224 contract security officers
within the Region did not have the appropriate suitability
4
He also stated that his witness interview with OSC regarding his supervisor’s
complaint was a contributing factor in the agency’s decision not to select him for the
position at issue. IAF, Tab 4 at 32. The appellant was interviewed by OSC on
August 9, 2012, and provided OSC with documents on October 11, 2012. Id. at 25.
The WPEA went into effect later, on December 27, 2012. Miller v. Federal Deposit
Insurance Corporation, 122 M.S.P.R. 3, ¶ 14 (2014), aff’d, 626 F. App’x 261 (Fed. Cir.
2015), cert. denied, 136 S. Ct. 1510 (2016). The IRA appeals rights section of the
WPEA as it pertains to the prohibited personnel practices described at 5 U.S.C.
§ 2302(b)(9)(B)-(C) does not apply retroactively. Colbert v. Department of Veterans
Affairs, 121 M.S.P.R. 677, ¶ 7 (2014).
6
determinations and 172 security officers were improperly
working, id. at 18-19; 5
4. The appellant and his first-level supervisor disclosed to the FPS
Director that the March 18, 2011 incident in which an explosive
device passed through building security in Detroit was not solely
the responsibility of contractors, and Federal employees also
appeared to have contributed to the incident, id. at 19-20;
5. The appellant disclosed to an Assistant General Counsel that the
Director of FPS provided false testimony to Congress, id. at 20;
and
6. The appellant and his first-level supervisor wrote a memorandum
for the FPS Director describing the details of the March 18, 2011
incident in which an explosive device passed through building
security in Detroit, detailing their disclosures concerning the
investigation of this incident, and stating the possibility of
disciplinary action as a result of this incident, id. at 22-23.
We find that the appellant nonfrivolously alleged that a reasonable person would
have believed that disclosures (1)-(4) and (6) disclosed a violation of law, rule, or
regulation, gross mismanagement, and a substantial and specific danger to public
health and safety. In addition, we find that the appellant nonfrivolously alleged
that a reasonable person would have believed that disclosure (5) disclosed a
violation of law, rule, or regulation.
¶9 For the following reasons, we find that the appellant failed to
nonfrivolously allege that he made any other protected disclosures. The
5
The appellant describes the alleged May 18 disclosure as a reminder of the May 10
disclosure to the same individual. IAF, Tab 4 at 19. The appellant enumerated them as
separate disclosures #3 and #4 in his complaint. Id. at 18-19. For purposes of our
jurisdictional analysis at this stage of the proceeding, we find that the appellant has
made a nonfrivolous allegation that the information disclosed on these dates evidenced
a violation of law, rule, or regulation, gross mismanagement, and a substantial and
specific danger to public health and safety, and that the agency at least perceived the
appellant as a whistleblower based on his supervisor’s disclosure of information
attributable to the appellant. See, e.g., Rumsey v. Department of Justice, 120 M.S.P.R.
259, ¶ 7 (2013) (stating that one who is perceived as a whistleblower is entitled to the
protection of the WPA, even if he has not made protected disclosures).
7
disclosure the appellant identified as “disclosure #7” describes a meeting in
which he and his supervisor disputed the claims of the FPS Director, Deputy
Director, and Assistant Director of Field Operations that they were not aware that
FPS employees were implicated in the incident involving an explosive device that
occurred on March 18, 2011. IAF, Tab 4 at 22. The appellant’s description of
this meeting does not include an allegation of a disclosure of information. If, as
the appellant alleges, the Director, Deputy Director, and Assistant Director of
Field Operations already knew that FPS employees were involved in the incident
prior to this meeting, then he has not alleged a communication or transmission of
information. An alleged disagreement about what information was known by the
attendees, even if proven, could not meet the statutory definition of a
“disclosure.” 5 U.S.C. § 2302(a)(2)(D).
¶10 In the disclosure that the appellant identified as “disclosure #9,” he alleges
that the Assistant Director of Field Operations ordered him and his first-level
supervisor to shut down their investigation into whether FPS employees
committed misconduct in connection with the March 18, 2011 explosive device
incident. IAF, Tab 4 at 23. The appellant asserts that, in response, he told the
Assistant Director of Field Operations that he “was not the fall guy” and asked
the Assistant Director of Field Operations to put his directive in writing. Id. The
appellant further contends that his first-level supervisor advised the Director that
the instruction to shut down the investigation was “inappropriate.” Id. The
appellant’s description of his statements does not constitute a nonfrivolous
allegation of a protected disclosure. In his pleadings, the appellant asserts that he
was told to shut down the investigation to “cover up” the fact that the FPS
Director had provided false testimony to Congress, and that there was “a
violation of law, rule or regulation; substantial[,] specific danger to public health
or safety, abuse of authority, and gross waste of funds.” Id. at 23, 35. However,
he did not allege that he conveyed these concerns to anyone at the time of the
events in question. While the appellant claims that his first-level supervisor told
8
the Director that shutting down the investigation was “inappropriate,” he does not
contend that he personally made such a statement. Thus, the appellant’s
description of the incident he identified as disclosure #9 does not constitute a
nonfrivolous allegation that he made a protected disclosure within the
Board’s jurisdiction.
¶11 The disclosure the appellant identified as “disclosure #10” describes a
conference call that he was asked to attend “in silence.” IAF, Tab 4 at 24-25.
During the call, other agency managers allegedly discussed the improper storage
of classified materials by two FPS employees in Region 5, who had missed
required annual training on this topic. Id. There was some discussion about who
was responsible for ensuring that the employees were trained, and the appellant
allegedly wrote on a note pad that it was a headquarters, and not a regional,
responsibility. Id. The alleged difference of opinion concerning a policy, i.e.,
whether headquarters or the regional office was responsible for ensuring that FPS
employees were properly trained, is not a nonfrivolous allegation of a protected
disclosure. See Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶ 8 (2015)
(stating that, even under the expanded protections afforded to whistleblowers
under the WPEA, general philosophical or policy disagreements are not protected
unless they separately constitute a protected disclosure of one of the categories of
wrongdoing listed in 5 U.S.C. § 2302(b)(8)(A)).
The appellant has made a nonfrivolous allegation that his disclosures were a
contributing factor in his nonselection for the Director position.
¶12 The appellant argues that the administrative judge erred by finding that he
had not made a nonfrivolous allegation that his protected disclosures were a
contributing factor in his nonselection for the Director position. PFR File, Tab 1
at 4-6. The administrative judge found that the appellant had failed to
nonfrivolously allege that his disclosures were a contributing factor because he
had not satisfied the knowledge/timing test. ID at 10-13; see 5 U.S.C.
§ 1221(e)(1). Specifically, the administrative judge found that, because the
9
members of two panels that reviewed and scored the résumés of applicants for the
Director position had no actual knowledge about the appellant’s disclosures, the
appellant had not met his burden of showing that his disclosures were a
contributing factor in the nonselections. ID at 12. The appellant argues that the
first selection panel’s knowledge is irrelevant, given that the first time the
vacancy was announced he was referred to the selecting official and interviewed
for the position, and the selecting official had actual knowledge of his protected
disclosures. PFR File, Tab 1 at 5. The appellant further argues that the second
time the position was advertised, the interviewer and all of the selection panel
members had imputed knowledge about his protected disclosures. Id.
¶13 To satisfy the contributing factor criterion at the jurisdictional stage of an
IRA appeal, the appellant only need raise a nonfrivolous allegation that the fact
or the content of the protected disclosure was one factor that tended to affect the
personnel action in any way. Salerno v. Department of the Interior, 123 M.S.P.R.
230, ¶ 13 (2016). 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 who took 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. Id.
¶14 The administrative judge stated that the obvious bar to the appellant’s
claims of reprisal is that he has not alleged that the panel members had actual
knowledge of his disclosures. ID at 11. We do not agree. The language of
5 U.S.C. § 1221(e)(1) makes clear that the knowledge/timing test is not the only
way for an appellant to satisfy the contributing factor standard, and the legislative
history of that statute indicates that the knowledge/timing test is but “one of the
many possible ways” to satisfy the standard. Powers v. Department of the Navy,
10
69 M.S.P.R. 150, 156 (1995) (citing S. Rep. No. 622, 103d Cong.,
2d Sess. 8 (1994)).
¶15 An appellant can show that a protected disclosure was a contributing factor
in a personnel action by proving that the official taking the action had
constructive knowledge of the protected disclosure. Aquino v. Department of
Homeland Security, 121 M.S.P.R. 35, ¶ 19 (2014). An appellant may establish an
official’s constructive knowledge of a protected disclosure by demonstrating that
an individual with actual knowledge of the disclosure influenced the official
accused of taking the retaliatory action. Id. Lack of knowledge by a single
official is not dispositive. Dorney v. Department of the Army, 117 M.S.P.R. 480,
¶ 12 (2012). Rather, we must determine whether the agency took a wrongful
personnel action against the appellant and whether that action should be
corrected. Id.
¶16 The appellant alleges that senior agency officials with knowledge about his
protected disclosures conspired with others not to select him for the Director
position. IAF, Tab 1 at 40-41. At this stage, the appellant can meet his burden of
proof without specifically identifying which management officials were
responsible for the reprisal. See Cahill v. Merit Systems Protection Board,
821 F.3d 1370, 1373-75 (Fed. Cir. 2016). The burden to establish jurisdiction is
the appellant’s, but, when the personnel action at issue is a nonselection, the
evidence concerning who was involved in the selection process, what they knew
about the appellant’s protected disclosures, and who may have influenced their
decision is exclusively within the agency’s possession. See Parker v. Department
of Housing & Urban Development, 106 M.S.P.R. 329, ¶ 9 (2007) (finding
discovery appropriate to obtain materials in the agency’s possession that were
potentially relevant to an employment practices claim regarding a nonselection
for a position). The appellant claims that he was interviewed for the position by
the selecting officials, while the agency asserts that the decision not to select the
appellant was made by a panel. Compare IAF, Tab 1 at 39, with IAF, Tab 10
11
at 28-29. This factual dispute cannot be resolved in favor of the agency in
determining whether the appellant has made a nonfrivolous allegation of
jurisdiction. Ingram v. Department of the Army, 114 M.S.P.R. 43, ¶ 10 (2010)
(stating that, in assessing whether the appellant has made nonfrivolous
allegations, the administrative judge may consider the agency’s documentary
evidence; however, to the extent the agency’s evidence constitutes mere factual
contradiction of the appellant’s allegations, the administrative judge may not
weigh evidence and resolve conflicting assertions and the agency’s evidence
may not be dispositive). The appellant further alleges that he was interviewed for
the position by the Deputy Director and Director, two managers who were the
subject of several of his disclosures, and was told after the interview that the
Director “felt as if [he] did not have a proper vision to be in the position.” IAF,
Tab 4 at 30; PFR File, Tab 1 at 5.
¶17 Given the nature of the personnel action at issue, and reading the
appellant’s allegations in context with the entire record, we find that he has
nonfrivolously alleged that his whistleblowing disclosures were a contributing
factor in the agency’s decision not to select him for the Director position.
ORDER
¶18 For the reasons discussed above, we remand this case to the regional office
for further adjudication. On remand, the administrative judge shall permit the
parties to complete discovery prior to conducting a hearing on the merits.
FOR THE BOARD:
______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.