Anthony Salazar v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2022 MSPB 42

Docket No. SF-1221-15-0660-W-1

Anthony G. Salazar,

Appellant,

v.

Department of Veterans Affairs,

Agency.

December 13, 2022

Anthony G. Salazar, Pico Rivera, California, pro se.

Steven R. Snortland, Esquire, Los Angeles, California, for the agency.

Wonjun Lee, Esquire, Oakland, California, for amicus curiae, the Office of

Special Counsel.

Noah J. Fortinsky, Esquire, Washington, D.C., for amicus curiae, the

Office of Special Counsel.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

OPINION AND ORDER

¶1 The appellant has filed a petition for review of the initial decision denying

his request for corrective action in this individual right of action (IRA) appeal.

For the following reasons, we GRANT the petition for review. We AFFIRM the

initial decision IN PART, to the extent it determined the appellant proved the

agency took personnel actions against him and his disclosures were a contributing

2

factor under the knowledge/timing test. However, we otherwise VACATE the

initial decision and REMAND the appeal for further adjudication.

BACKGROUND

¶2 The appellant was a Motor Vehicle Operator Supervi sor in the agency’s

Greater Los Angeles Healthcare System. Initial Appeal File (IAF), Tab 6

at 27-28. Between November 2012, when his former first-level supervisor left

her position as Chief of Transportation, and July 2014, when she was replaced,

the appellant assumed the duties of the Chief of Transportation positi on. Hearing

Transcript (HT) at 10, 13-16, 43-44 (testimony of the appellant). Both the Motor

Vehicle Operator Supervisor and Chief of Transportation were required to

oversee the vehicle fleet and fleet cards. 1 IAF, Tab 6 at 27-28, Tab 15 at 11; HT

at 66-68 (testimony of the appellant).

¶3 On October 10, 2013, the appellant sent his supervisor an email reporting

that an employee for the Greater Los Angeles Healthcare System’s Community

Care Program had stored the keys and fleet cards for the vehicles assig ned to the

Program in an unsecured location. IAF, Tab 5 at 62; HT at 16-19 (testimony of

the appellant). On October 24, 2013, the appellant emailed his supervisor, as well

as his second-level supervisor. IAF, Tab 5 at 63. In this email, he reported

further details related to the failure of the Community Care Program to secure

vehicle keys and cards, including that vehicles were missing and that there may

have been fraudulent card use. Id.; HT at 19-20 (testimony of the appellant).

Although these vehicles and cards were assigned to the Program, the appellant

was responsible for overseeing their security. HT at 67-68 (testimony of

the appellant).

1

A fleet card is a credit card for gasoline that goes with an individual fleet vehicle. HT

at 67 (testimony of the appellant).

3

¶4 In January 2014, the agency convened an Administrative Investigation

Board (AIB) to look into the theft of fleet vehicles, including those assigned to

the Community Care Program. IAF, Tab 8 at 4. The AIB submitted its report

2 months later, which included findings that the appellant’s supervisor failed to

adequately oversee fleet vehicles and cards. Id. at 14-20. It made

recommendations, including that “disciplinary or other administrative action

should be taken with respect to” the issues identified in its report. Id. at 23. As a

result, the supervisor received a letter of counseling, for which he held t he

appellant partially responsible. HT at 230-32, 245 (testimony of the

appellant’s supervisor).

¶5 In March 2014, the appellant requested training in fleet management, which

was to occur in May 2014. IAF, Tab 5 at 72-73. His supervisor responded that

he “wanted to hold off a while . . . [because they] need[ed] to do a number of

things before then in order to take full advantage of the training.” Id. at 72; HT

at 251-52 (testimony of the appellant’s supervisor). He permitted the appellant to

receive the training in September 2014. HT at 249-50 (testimony of the

appellant’s supervisor). In June 2014, the supervisor changed the appellant’s

performance standards. IAF, Tab 5 at 26-30, 49-52. After observing his

performance on the new standards for 3 months, the supervisor issued the

appellant an unacceptable performance notification and a performance

improvement plan (PIP). Id. at 103-09. The appellant was on the PIP for

3 months when his supervisor proposed his removal for unacceptable

performance. IAF, Tab 6 at 4-15. Following the appellant’s response, the agency

removed him effective February 4, 2015. IAF, Tab 5 at 16.

¶6 The appellant asserted in this IRA appeal that the actions beginning with

the delay of his training in May 2014, and ending with his removal in

February 2015, were in reprisal for his two disclosures in October 2013. IAF,

Tab 14 at 7-8, Tab 15 at 3-5, Tab 17 at 5-6. The administrative judge found that

the Board had jurisdiction over the appeal and held a hearing. IAF, Tab 28,

4

Initial Decision (ID) at 1-2, 14 n.7. He then issued an initial decision in which he

found that the appellant made his disclosures in the normal course of his duties.

ID at 19-26. The administrative judge determined that, pursuant to 5 U.S.C.

§ 2302(f)(2) (2016), such disclosures are protected only if the employee proves

by preponderant evidence that the agency took a given perso nnel action with an

improper retaliatory motive. ID at 18-19, 29.

¶7 Upon finding no direct evidence of retaliatory motive, the administrative

judge held that circumstantial evidence supporting an inference of an actual

purpose to reprise could encompass the following factors: (1) whether the agency

officials responsible for the personnel actions knew of the appellant’s disclosures

and the timing of those actions; (2) the strength or weakness of the agency’s

reasons for the actions; (3) whether the disclosures were directed personally at the

agency officials responsible for the actions; (4) any desire or motive to retaliate

against the appellant; and (5) whether the agency took similar personnel actions

against similarly situated employees who had not made disclosures. ID at 30.

After looking at the totality of the evidence, the administrative judge concluded

that the appellant failed to prove by preponderant evidence that the agency took

the personnel actions with the actual purpose of retaliating agains t him. ID at 19,

26-52. Thus, he found that the appellant did not prove that his disclosures were

protected and denied corrective action. ID at 52-53.

¶8 The appellant has filed a petition for review, disagreeing with the standard

articulated by the administrative judge. Petition for Review (PFR) File, Tab 1

at 8-10. He also has challenged the administrative judge’s factual findings, as

well as his determination that he could not consider the appellant’s due process

and harmful error defenses. Id. at 9-32. The Office of Special Counsel (OSC)

has filed an amicus curiae brief. PFR File, Tab 5; see 5 C.F.R. § 1201.34(e)

(setting forth the procedures for amicus curiae). The agency h as not responded to

the petition for review, and neither party has responded to OSC.

5

ANALYSIS

The administrative judge erred by applying 5 U.S.C. § 2302(f)(2) because the

appellant’s principal job function was not to regularly investigate and

disclose wrongdoing.

¶9 The administrative judge applied 5 U.S.C. § 2302(f)(2) (2016) to find that

the appellant’s disclosures were not protected. For the reasons that follow, we

find that the appellant’s disclosures should have been analyzed under 5 U.S.C.

§ 2302(b)(8) and not subjected to the slightly higher burden of 5 U.S.C.

§ 2302(f)(2).

The enactment of 5 U.S.C. § 2302(f)(2) as part of the Whistleblower

Protection Enhancement Act of 2012 (WPEA) clarified the scope of

5 U.S.C. § 2302(b)(8).

¶10 Under the Whistleblower Protection Act (WPA), which was in place before

the WPEA, agencies generally were prohibited from engaging in reprisal for “any

disclosure” that an employee reasonably believed evidenced certain categories of

wrongdoing. 5 U.S.C. § 2302(b)(8) (2011). A Senate report accompanying the

bill that was enacted as the WPEA indicated that judicial and Board

interpretations of the WPA had “narrow[ed] the scope of protected disclosures” in

a manner that “undermine[d] the WPA’s intended meaning.” S. Rep.

No. 112-155, at 4-6 (2012), as reprinted in 2012 U.S.C.C.A.N. 589, 592-94.

Most relevant to our discussion here, the report stated disagreement with the

conclusion of the decision in Willis v. Department of Agriculture, 141 F.3d 1139,

1140-41 & n.1, 1144 (Fed. Cir. 1998), that disclosures made by a Government

inspector concerning private parties’ noncompliance with Federal Government

approved conservation plans were not protected under the WPA because he made

them as part of his regular job duties. S. Rep. No. 112-155, at 5-6 & n.13.

Accordingly, the WPEA added the following provision:

If a disclosure is made during the normal course of duties of an

employee, the disclosure shall not be excluded from subsection

[5 U.S.C. § 2302(b)(8)] if [the agency takes a personnel action] with

respect to that employee in reprisal for the disclosure.

6

WPEA, Pub. L. No. 112-199, § 101(b)(2)(C), 126 Stat. 1465, 1466 (codified at

5 U.S.C. § 2302(f)(2) (2012)).

¶11 In adopting this language, the Senate report stated that it was overturning

prior case law, including Willis, and clarifying that a whistleblower is not

deprived of protection just because the disclosure was made in the normal cour se

of an employee’s duties. S. Rep. No. 112-155, at 5. However, the Senate report

also explained that an appellant making a disclosure under 5 U.S.C. § 2302(f)(2)

was required to show that “actual reprisal occurred,” i.e., that “the agency took

the action with an improper, retaliatory motive.” Id. Thus, the report observed

that the language of section 2302(f)(2) imposed an “extra proof requirement” or

“slightly higher burden” for proving the disclosure was protected. S. Rep.

No. 112-155, at 5-6. In explaining the reason for this higher burden, the report

identified the concern of “facilitat[ing] adequate supervision of employees, such

as auditors and investigators, whose job is to regularly report wrongdoing”:

Personnel actions affecting auditors, for example, would ordinarily

be based on the auditor’s track-record with respect to disclosure of

wrongdoing; and therefore a provision forbidding any personnel

action taken because of a disclosure of wrongdoing would sweep too

broadly. However, it is important to preserve protection for such

disclosures, for example where an auditor can show that she was

retaliated against for refusing to water down a report.

Id.

¶12 In Day v. Department of Homeland Security, 119 M.S.P.R. 589, ¶ 18

(2013), the Board observed that the WPA’s definition of disclosure contained in

5 U.S.C. § 2302(b)(8) was ambiguous as to whether disclosures made in the

normal course of an employee’s duties were protected. It found the new

provision at 5 U.S.C. § 2302(f)(2), which was enacted as part of the WPEA,

clarified this ambiguity to provide that these types of disclosures were covered

under the WPA. Day, 119 M.S.P.R. 589, ¶¶ 18-26. The version of 5 U.S.C.

§ 2302(f)(2) enacted as part of the WPEA was the version in place when the

7

events in this case occurred and when the administrative judge issued his

May 2016 initial decision.

The National Defense Authorization Act for Fiscal Year 2018 (2018 NDAA)

explicitly clarified the intent of 5 U.S.C. § 2302(f)(2).

¶13 In May 2017, the Senate Committee on Homeland Security and

Governmental Affairs recommended passage of a bill titled the Office of Special

Counsel Reauthorization Act of 2017. S. Rep. No. 115-74, at 1 (2017). The bill

proposed to add language to 5 U.S.C. § 2302(f)(2) providing that, “[i]f a

disclosure is made during the normal course of duties of an employee, the

principal job function of whom is to regularly investigate and disclose

wrongdoing, . . . the disclosure shall not be excluded from subsection [5 U.S.C.

§ 2302(b)(8)] if . . . [the agency takes a personnel action] with respect to the

disclosing employee in reprisal for the disclosure.” S. Rep. No. 115-74, at 21-22

(emphasis added). In recommending this modification, the Committee stated that

it “clarifies that an employee with a principal job function of investigating and

disclosing wrongdoing will not be excluded from whistleblower protection law s”

if he can prove that actual reprisal occurred. Id. at 8; see S. Rep. No. 112-155,

at 5 (containing the “actual reprisal” language).

¶14 An amended version of the bill passed the Senate on August 1, 2017, and

was referred to the House of Representatives 3 days later, still containing the

proposed change to section 2302(f)(2). An Act to Reauthorize the Office of

Special Counsel, and for other purposes, S. 582, 115th Cong. § 4 (2017);

Communication from the Clerk of the House, 163 Cong. Rec. H6587 (Aug. 4,

2017). The language of the bill, as passed by the Senate, later appeared, with

relatively few changes, in the 2018 NDAA, Pub. L. No. 115-91, § 1097, 131 Stat.

1283, 1615-23 (2017), under the heading “Office of Special Counsel

Reauthorization.” In particular, the 2018 NDAA contained an amendment to

8

5 U.S.C. § 2302(f)(2) that was identical to the version in the Senate bill, save for

one non-substantive change that is not relevant to our discussion here. 2 Compare

Pub. L. No. 115-91, § 1097(c)(1)(B)(ii), 131 Stat. at 1618, with S. 582, 115th

Cong. § 4 (reflecting that the phrase “referred to” was moved from the middle to

the beginning of a parenthetical). Accordingly, we find that 5 U.S.C.

§ 2302(f)(2) now expressly applies only to employees whose principal job

functions are to regularly investigate and disclose wrongdoing.

¶15 Although not raised by the parties, we must address whether this amended

language applies to this appeal, given that the actions at issue here took place

before the 2018 NDAA was enacted. We find that it does. 3

¶16 The proper analytical framework for determining whether a new statute

should be given retroactive effect was set forth by the U.S. Supreme Court in

Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994):

When a case implicates a [F]ederal statute enacted after the events in

suit, the court’s first task is to determine whether Congress has

expressly prescribed the statute’s proper reach. If Congress has done

so, of course, there is no need to resort to judicial default rules.

When, however, the statute contains no such express command, the

court must determine whether the new statute would have retroactive

effect, i.e., whether it would impair rights a party possessed when he

acted, increase a party’s liability for past conduct, or impose new

duties with respect to transactions already completed. If the statut e

would operate retroactively, our traditional presumption teaches that

2

Apart from the Senate report on S. 582, discussed above, the legislative history is

silent as to the purpose of the 2018 NDAA’s amendment to 5 U.S.C. § 2302(f)(2). For

example, although it appears that the Senate and House agreed in November 2017 to

add the Senate’s proposed version of section 2302(f)(2) to the 2018 NDAA, the

accompanying report provides no explanation. H.R. Rep. No. 115-404, at 338-39

(2017) (Conf. Rep.).

3

Given our determination that the 2018 NDAA’s amendment to 5 U.S.C. § 2302(f)(2) is

retroactive, it is unnecessary to consider OSC’s motion seeking leave to file an

additional pleading about the 2018 NDAA as it relates to this appeal. PFR File, Tab 9

at 3.

9

it does not govern absent clear congressional intent favoring such

a result.

E.g., Edwards v. Department of Labor, 2022 MSPB 9, ¶ 31 (identifying Landgraf

as providing the proper analytical framework for determining whether a new

statute should be given retroactive effect); Day, 119 M.S.P.R. 589, ¶ 7 (same).

The first step under Landgraf is to determine if Congress expressly defined the

temporal reach of the statute. Landgraf, 511 U.S. at 280; Day, 119 M.S.P.R. 589,

¶¶ 7-8. If so, that command is controlling. Landgraf, 511 U.S. at 280. Here, the

2018 NDAA amending 5 U.S.C. § 2302(f)(2) is silent regarding retroactivity.

Pub. L. No. 115-91, § 1097(c)(1)(B)(ii), 131 Stat. at 1618; see Edwards,

2022 MSPB 9, ¶¶ 29, 32 (so finding as to the 2018 NDAA’s amendment of

5 U.S.C. § 2302(b)(9)(C)).

¶17 We must therefore determine whether the amended provision impairs the

parties’ respective rights, increases a party’s liability for past conduct, or imposes

new duties with respect to past transactions. Landgraf, 511 U.S. at 280. For the

reasons that follow, we find that the 2018 NDAA’s modification of 5 U.S.C.

§ 2302(f)(2) does not have an impermissible retroactive effect under Langraf

because it does not alter the parties’ respective rights or liabilities, and does not

impose new duties to past transactions when compared to the earlier version of

the statute initially contemplated by Congress as part of the WPEA.

¶18 When legislation clarifies existing law, its application to preenactment

conduct does not raise concerns of retroactivity. Day, 119 M.S.P.R. 589, ¶ 10.

In determining whether a new law clarifies existing law, “[t]here is no bright-line

test.” Id., ¶ 11 (quoting Levy v. Sterling Holding Co., 544 F.3d 493, 506 (3d Cir.

2008) (citation omitted)). However, “[s]ubsequent legislation declaring the intent

of an earlier statute is entitled to great weight. ” Id. (quoting Red Lion

Broadcasting Co. v. Federal Communications Commission, 395 U.S. 367, 380-81

(1969)). Other factors relevant in determining whether a legislative enactment

clarifies, rather than effects a substantive change in, existing law are the presence

10

of ambiguity in the preceding statute and the extent to which the new law resolves

the ambiguity and comports with both the prior statute and any prior

administrative interpretation. Id. (citing Levy, 544 F.3d at 507 (finding these

factors “particularly important” for “determining whether a new regulation

merely ‘clarifies’ existing law”) (citations omitted)).

¶19 The first of these factors, expressions of legislative intent, weighs in favor

of finding that the amended language of 5 U.S.C. § 2302(f)(2) merely clarified its

predecessor. In making this determination, we look to the legislative history of

S. 582. When legislative history relates to prior drafts of a statute that did not

change before passage, the Board may rely on that history in interpreting the

enacted statute. See Ganski v. Department of the Interior, 86 M.S.P.R. 32, ¶ 12 &

n.2 (2000) (relying on legislative history for a bill with the same language as the

WPA that was pocket vetoed to interpret the enacted WPA); Special Counsel v.

Santella, 65 M.S.P.R. 452, 462 & n.9 (1994) (considering the legislative history

for a bill that never became law in interpreting a similar chan ge eventually

effectuated as part of the WPA). Here, the legislative history of the 2018 NDAA

does not explain the purpose of the modification to the WPEA’s version of

5 U.S.C. § 2302(f)(2). However, S. 582 included the same clause at issue here,

later enacted as part of the 2018 NDAA, limiting the scope of 5 U.S.C.

§ 2302(f)(2) to disclosures made during the normal course of duties of an

employee whose “principal job function . . . is to regularly investigate and

disclose wrongdoing.” Further, the 2018 NDAA was enacted in December 2017,

less than 5 months after the Senate passed S. 582 in August of the same year.

Therefore, we find it appropriate to rely on the statement of the Senate Committee

on Homeland Security and Governmental Affairs that S. 582 was intended to

clarify in 5 U.S.C. § 2302(f)(2) that employees whose principal job functions are

to investigate and disclose wrongdoing are not excluded from whistleblower

protections. S. Rep. No. 115-74, at 8. Accordingly, we conclude that the intent

11

of Congress in adopting the relevant language at issue here was to clarify

5 U.S.C. § 2302(f)(2). 4

¶20 We next turn to the question of whether the prior version of 5 U.S.C.

§ 2302(f)(2) was ambiguous and, if so, whether that ambiguity is resolved by the

2018 NDAA in a manner that comports with the prior statute and administrative

interpretation. We find that the WPEA’s version of section 2302(f)(2) was

ambiguous regarding what types of employees that provision was meant to cov er,

and that the 2018 NDAA resolved that ambiguity. The administrative judge in

Acha v. Department of Agriculture, MSPB Docket No. DE-1221-13-0197-W-2,

applied the heightened standard to a Forest Service purchasing agent. After the

case was appealed, OSC filed an amicus brief arguing that Congress did not

intend for the new heightened standard of section 2302(f)(2) to apply to a Federal

employee whose core job functions did not require investigating and reporting

wrongdoing. See Brief on Behalf of the United States Office of Special Counsel

as Amicus Curiae in Support of Petitioner-Appellant and in Favor of Reversal

at 10-11, Acha v. Department of Agriculture, 841 F.3d 878 (10th Cir. 2016).

¶21 Because of the confusion over this issue, OSC requested of Congress a

clarifying amendment, which was then included in the OSC reauthorization bill

along with other legislative requests from OSC. 5 The clarifying amendment

resolved this ambiguity and, as discussed above, comports with how Congress

4

In Edwards, 2022 MSPB 9, ¶¶ 29-33, we found that the expansion of 5 U.S.C.

§ 2302(b)(9)(C) to include additional protected activities did not apply retroactively. In

doing so, we observed that nothing in the 2018 NDAA, S. 582, or the latter’s bill report

indicated that it was intended to clarify an existing law. Id., ¶ 33 n.11. Because bill

report S. Rep. No. 115-74 contains such a statement as it concerns the change to

5 U.S.C. § 2302(f)(2), we find the situation distinguishable from Edwards, and we

do not apply the same analysis. See S. Rep. No. 115-74, at 8.

5

OSC’s amicus brief was submitted over a month after the House Committee on

Oversight and Government Reform had already voted to the floor its v ersion of an OSC

reauthorization bill, H.R. 4639, which is why the issue was not addressed in the

House bill.

12

described its purposes for the original language in the WPEA. Thus, we find that

the 2018 NDAA’s version of 5 U.S.C. § 2302(f)(2) may be applied retroactively

in this case.

The appellant’s principal job function was not to regularly investigate and

disclose wrongdoing.

¶22 Turning back to the facts of this appeal, the appellant made his disclosures

as part of his normal duties as a Motor Vehicle Supervisor. HT at 62 (testimony

of the appellant). Nonetheless, it is apparent that 5 U.S.C. § 2302(f)(2), as

recently clarified in the 2018 NDAA, does not apply to him. Section 2302(f)(2)

includes only employees whose principal job functions are regularly investigating

and disclosing wrongdoing. The appellant’s principal job functions included

supervising, scheduling, and monitoring staff, and ensuring good relationships

with customers. 6 IAF, Tab 5 at 49-51, Tab 15 at 11-15. Although his position

description indicated that he conducted “audits as directed,” this potential

assignment was listed among a number of “General Administration and

Operational Duties,” and there is no evidence that the agency routinely requested

that he conduct audits or that conducting audits was the reason his position

existed. IAF, Tab 15 at 12. Therefore, the appellant’s disclosures fall under the

generally applicable 5 U.S.C. § 2302(b)(8), rather than 5 U.S.C. § 2302(f)(2).

The appellant established a prima facie case of whistleblower retaliation.

¶23 To establish a prima facie case of reprisal for a disclosure under 5 U.S.C.

§ 2302(b)(8), an appellant must prove, by preponderant evidence, that: (1) he

6

We have considered the appellant’s principal duties in his assigned position of Motor

Vehicle Supervisor at the time he made his disclosures. Although the appellant was

performing the duties of the Chief of Transportation, he was not officially assigned to

this position, but rather was “fill[ing] in” as required by his position description. HT

at 15 (testimony of the appellant); IAF, Tab 15 at 14. There is no indication that the

Chief of Transportation was principally tasked with investigating and

disclosing wrongdoing.

13

made a disclosure that a reasonable person in his position would believe

evidenced any 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; and (2) the disclosure was a contributing factor in the

agency’s decision to take or fail to take a personnel action as defined b y 5 U.S.C.

§ 2302(a). 5 U.S.C. § 2302(b)(8); Webb v. Department of the Interior,

122 M.S.P.R. 248, ¶ 6 (2015). Because the administrative judge found that the

appellant did not make protected disclosures under 5 U.S.C. § 2302(f)(2), he

did not make findings as to whether the appellant met his burden to prove that his

October 2013 disclosures were protected under section 2302(b)(8). The appellant

has not specifically addressed the elements of his prima facie case on review,

although he generally asserts that he disclosed gross mismanagement and fraud.

PFR File, Tab 1 at 8, 14. We find the appellant has met his burden to prove his

prima facie case of whistleblower reprisal.

The appellant proved that he reasonably believed that his disclosures

regarding fleet vehicles and fleet cards evidenced gross mismanagement.

¶24 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 actions evidenced gross

mismanagement or one of the other categories of wrongdoing set forth in 5 U.S.C.

§ 2302(b)(8). See Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 5

(2013). “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).

¶25 The agency’s mission “is to fulfill President Lincoln’s promise, ‘To care for

him who shall have borne the battle, and for his widow, and his orphan’ by

14

serving and honoring the men and women who are America’s Veterans.” IAF,

Tab 5 at 96. Pursuant to an agency directive, “[i]t is [agency] policy to manage

its vehicle fleet in an effective, efficient, and fiscally sound manner in order to

support the [agency’s] mission.” Id. The appellant testified, without

contradiction, that the agency’s Community Care Program used their fleet of

88 vehicles to reach out to the veteran community, including in the effort “to end

homelessness.” HT at 11 (testimony of the appellant).

¶26 The substance of the appellant’s October 10 and October 24, 2013

disclosures was what he viewed as a “vehicle and credit card issue in the

Homeless program [which] is in an alarming state of disarray and must be dealt

with immediately.” IAF, Tab 5 at 62. Specifically, he stated that, based on

reports he received from employees assigned to dispatch vehicles assigned to the

Community Care Program, the fleet vehicle keys and cards were “stored in a

room . . . , [to which] nearly everyone could gain access,” vehicle cards were

missing, and “[i]t now is apparent that there was a lack of control of these cards

and vehicles.” IAF, Tab 5 at 62, Tab 8 at 6, 11; HT at 16-19 (testimony of the

appellant), 71-75 (testimony of a former Community Care Management Analyst).

He further reported that “personnel from [the Program] stated that thirty of the

eighty-eight vehicles were unaccounted for, with no idea who had possession of

them,” and he was “aware of ten separate credit cards that [were] suspected of

fraud.” IAF, Tab 5 at 63. The appellant’s supervisor testified that he viewed the

appellant’s October 24, 2013 email as a report of gross mismanagement and that

he agreed “obviously, something was amiss.” HT at 229-30 (testimony of the

appellant’s supervisor). We find that the appellant reasonably believed that the

agency’s mismanagement of fleet vehicles created a substantial risk of significant

adverse impact on the agency’s ability to provide services to care for veterans,

15

and in particular homeless veterans. 7 Because providing such services is part of

the agency’s mission, we find the appellant’s disclosures were protected.

The administrative judge properly determined that the appellant proved

that the agency took personnel actions against him.

¶27 The administrative judge implicitly found that the appellant’s (1) delayed

training, (2) changed performance standards, (3) placement on a PIP, and

(4) removal were personnel actions as defined by 5 U.S.C. § 2302(a). IAF,

Tab 17 at 6; ID at 14 n.7, 15. We agree. The appellant’s placement on a PIP and

removal are personnel actions. See 5 U.S.C. § 2302(a)(2)(A)(iii), (viii) (defining

“personnel action” to include disciplinary action s and performance evaluations);

Gonzales v. Department of Housing & Urban Development, 64 M.S.P.R. 314, 319

(1994) (finding that placement on a PIP is, by definition, a threatened personnel

action, such as a reduction in grade or removal).

¶28 Concerning his delayed training, 5 U.S.C. § 2302(a)(2)(A)(ix) provides that

“a decision concerning . . . training” is a personnel action “if the . . . training may

reasonably be expected to lead to . . . [a] performance evaluation or other

[personnel] action” described in 5 U.S.C. § 2302(a)(2)(A). There must be, at a

minimum, a moderate probability that the training would have resulted in , or

avoided, some type of personnel action. Simone v. Department of the Treasury,

105 M.S.P.R. 120, ¶ 9 (2007); Shivaee v. Department of the Navy, 74 M.S.P.R.

383, 387 (1997). Here, that standard is met.

¶29 In March 2014, a Fleet Management Analyst from the agency’s Veterans

Affairs Central Office offered to provide 2-day on-site training to the appellant

and others in May 2014. IAF, Tab 5 at 72-73. The training would have given

“assistance and oversight of Fleet Management responsibilities, mandates, and

ensure policies/procedures are met.” Id. at 73. The appellant wanted to

7

The agency did not dispute below that, under 5 U.S.C. § 2302(b)(8), the appellant’s

disclosures were protected. IAF, Tab 24 at 24.

16

participate because he believed the training would assist the department in

meeting fleet management goals and provide him with an opportunity to me et his

standards. IAF, Tab 5 at 72; HT at 25-27, 53-54 (testimony of the appellant).

The appellant’s supervisor denied his request for the training at that time. IAF,

Tab 5 at 72. The appellant did eventually receive the training in September 2014,

the same month that the agency placed him on a PIP for unacceptable

performance pertaining to fleet management, which ultimately led to his removal.

HT at 28 (testimony of the appellant), 249-53 (testimony of the appellant’s

supervisor); IAF, Tab 5 at 16, 103, Tab 6 at 4-15. The appellant’s first-level

supervisor testified that the appellant “continued to be unsuccessful” after taking

the training in September 2014. Nonetheless, we find that at the time the

appellant requested the training, it was possible that the training could have

improved his performance, which may have made the PIP unnecessary. We find

the delay of training in March 2014 was, therefore, a personnel action.

¶30 Regarding the June 2014 change in the appellant’s performance standards,

“any . . . , significant change in duties, responsibilities, or working conditions” is

a personnel action under 5 U.S.C. § 2302(a)(2)(A)(xii). We recently explained

that, to amount to a “significant change” under section 2302(a)(2)(A)(xii), an

agency action must have a significant impact on the overall nature or quality of

an employee’s working conditions, responsibilities, or duties. Skarada v.

Department of Veterans Affairs, 2022 MSPB 17, ¶ 15.

¶31 Here, the appellant’s prior performance standards included just one critical

element, “Program Administration,” which generally required that the appellant

monitor resources for proper utilization, ensure satisfactory performance by staff,

identify and fulfill staff training needs, and develop appropriate performance

standards for staff. IAF, Tab 5 at 78. By contrast, the appellant’s updated

performance standards included two critical elements, “Motor Vehicle Inventory

Control” and “Motor Vehicle Maintenance and Reporting.” IAF, Tab 6 at 16-23.

The new standards contained more extensive, focused, and specific requirements

17

pertaining to vehicles, many of which included express deadlines. Id. at 20-22;

HT at 191-93 (testimony of the appellant’s supervisor). In comparing his old and

new performance standards, we find that the appellant was subjected to a

significant change in duties and responsibilities because the new standards

effectively changed his duties from supervising subordinate employees to

tracking the location, and ensuring the maintenance, of vehicles.

The administrative judge properly determined that the appellant proved

contributing factor under the knowledge/timing test.

¶32 One of the ways to prove that a disclosure was a contributing factor in a

personnel action is the knowledge/timing test, in which the appellant may

demonstrate that the official taking the personnel action knew of the disclosure,

and that the personnel action occurred within 1 to 2 years of the disclosure.

Wilson v. Department of Veterans Affairs, 2022 MSPB 7, ¶ 41. The

administrative judge found that the appellant met this test . ID at 30-31. The

agency conceded below that the knowledge prong of the knowledge/timing test

was satisfied for each of the alleged personnel actions. IAF, Tab 24 at 24.

We agree.

¶33 The appellant made his disclosures in October 2013 directly to his

first-level supervisor, who, over the subsequent 15 months, delayed the

appellant’s training, changed his performance standards, placed him on a PIP, and

proposed his removal. IAF, Tab 5 at 16-18, 62-63, 72-73, 103-09, Tab 6 at 4-23;

HT at 199 (testimony of appellant’s supervisor). The deciding official also had

actual knowledge of the appellant’s disclosures. The appellant raised his belief

that he was the victim of retaliation in his response to the proposed removal, as

well as referring to and attaching his October 2013 emails. IAF, Tab 5 at 23-36,

62-63. The deciding official reviewed this response and was aware of the

appellant’s allegation that the actions leading up to and including his proposed

removal were in reprisal for his disclosures. HT at 338-41 (testimony of the

deciding official). The agency removed the appellant effective February 4, 2015,

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less than 2 years after he made his disclosures. IAF, Tab 5 at 16. Thus, the

appellant has proven contributing factor.

On remand, the administrative judge must address whether the agency proved by

clear and convincing evidence that it would have taken the personnel actions

absent the appellant’s protected disclosures.

¶34 When, as in this case, an appellant shows by preponderant evidence that he

made protected disclosures and that those disclosures were a contribu ting factor

in the decision to take personnel actions, the burden shifts to the agency to prove

by clear and convincing evidence that it would have taken the personnel action s

in the absence of the whistleblowing. Smith v. Department of the Army,

2022 MSPB 4, ¶¶ 13, 23. Clear and convincing evidence is that measure or

degree of proof that produces in the mind of the trier of fact a firm belief as to the

allegations sought to be established. Id., ¶ 13 n.8; 5 C.F.R. § 1209.4(e). It is an

intentionally high standard of proof and is higher than the “preponderance of the

evidence” standard. Chambers v. Department of the Interior, 116 M.S.P.R. 17,

¶ 28 (2011) (citations omitted); 5 C.F.R. § 1209.4(e).

¶35 In determining whether an agency has met this burden, the Board generally

considers the following (“Carr factors”): (1) the strength of the agency’s

evidence in support of its action; (2) the existence and strength of any motive to

retaliate on the part of the agency officials who were involved in the decision;

and (3) any evidence that the agency takes similar actions against employees who

are not whistleblowers but who are otherwise similarly situated. Soto v.

Department of Veterans Affairs, 2022 MSPB 6, ¶ 11; see also Carr v. Social

Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). 8 The

8

Historically, the Board has been bound by the precedent of the U.S. Court of Appeals

for the Federal Circuit on these types of whistleblower issues. However, pursuant to

the All Circuit Review Act (Pub. L. No. 115-195, 132 Stat. 1510), appellants may file

petitions for judicial review of Board decisions in whistleblower reprisal cases with any

circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703(b)(1)(B).

19

administrative judge previously considered some of these factor s when analyzing

whether the appellant’s disclosures were protected under 5 U.S.C. § 2302(f)(2).

ID at 32-52. However, in doing so, he placed the burden of proof on the

appellant. ID at 17-18, 26. Because 5 U.S.C. § 2302(f)(2) is inapplicable to this

matter and this is a different stage of the proceedings with different burdens of

proof, the administrative judge’s prior analysis must be reevaluated. We find it

appropriate to remand this case because the administrative judge, as the hearing

officer, is in the best position to make factual findings and detailed credibility

assessments on the Carr factors. See Mastrullo v. Department of Labor,

123 M.S.P.R. 110, ¶ 27 (2015) (citing this consideration in remanding an IRA

appeal for an administrative judge to make a determination as to whether the

agency subjected the appellant to a personnel action and, if so, to evaluate the

remaining elements of the appellant’s whistleblower reprisal claim).

¶36 On remand, the administrative judge should reassess each of the Carr

factors in light of the findings herein, giving weight to the appellant’s first-level

supervisor’s motive to retaliate, as he testified that “it didn’t make [his] day” that

he received the letter of counseling for mismanagement of vehicles, and

responded in the affirmative to the question of whether he held the appellant

partially responsible for the letter. Id. at 245 (testimony of the appellant’s

supervisor). Further, on remand, the administrative judge should consider that

the appellant’s disclosures also reflected poorly on the appellant’s first-level

supervisor and the deciding official as representatives of the general institutional

interests of the agency, which is sufficient to establish retaliatory motive.

Wilson, 2022 MSPB 7, ¶ 65; Smith, 2022 MSPB 4, ¶¶ 28-29.

Therefore, we must consider these issues with the view that the appellant may seek

review of this decision before any appropriate court of appeal.

20

ORDER

¶37 For the reasons discussed above, we remand this case for further

adjudication in accordance with this Opinion and Order.

FOR THE BOARD:

/s/

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.