Gregory Finch v. Department of the Army

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

GREGORY LEONARD FINCH, DOCKET NUMBER

Appellant, AT-1221-20-0167-W-1

v.

DEPARTMENT OF THE ARMY, DATE: November 16. 2022

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Gregory Leonard Finch, Fort Walton Beach, Florida, pro se.

Brandon Iriye, Esquire, United States Army Garrison Daegu, South Korea,

for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

REMAND 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 ,

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

Office for further adjudication in accordance with this Remand Order.

BACKGROUND

¶2 The appellant is a Food Program Manager at Fort Rucker in Alabama.

Initial Appeal File (IAF), Tab 9 at 134. In 2019, he filed a complaint with the

Office of Special Counsel (OSC), alleging that, in retaliation for his engaging in

various protected activities, he was not selected for several positions. IAF,

Tab 12 at 21-23. The appellant identified his protected activities as filing an

administrative grievance in 2010, contacts with an equal employment opportunity

(EEO) officer between 2012 and 2014, and a complaint to the agency’s Office of

the Inspector General (OIG) in May 2018. Id. at 21, 29, 32. He alleged that in

retaliation for these activities, he was not interviewed for several vacancies

between June and October of 2019. Id. at 21, 32. OSC subsequently closed its

inquiry into the matter and informed the appellant of his right to file an IRA

appeal with the Board. Id. at 32-33.

¶3 The appellant subsequently filed the instant IRA appeal. IAF, Tab 1 at 1-5.

The administrative judge informed the appellant of his burden of proof regarding

jurisdiction. IAF, Tab 3. The agency moved to dismiss the appeal, and the

appellant responded to the agency’s motion. IAF, Tab 8 at 10-11, Tab 10 at 6.

The administrative judge issued an initial decision dismissing the appeal for lack

of jurisdiction. IAF, Tab 13, Initial Decision (ID). She found that the appellant’s

EEO contacts and administrative grievance were not protected activity. ID at 4-5.

However, she found his OIG complaint was protected activity. ID at 5.

Nonetheless, she found that the appellant failed to meet his burden of

nonfrivolously alleging that his OIG complaint was a contributing factor in his

nonselections. Id. She based this finding largely on the declarations of the

individuals on the hiring committees for the vacancies, who declared that they

had no knowledge of the appellant’s OIG complaint and were not influenced by

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any individual with such knowledge. Id. She was not persuaded by the

appellant’s claim that he emailed a hiring committee member discussing his

“EEO and [O]IG issues.” Id. She reasoned that the appellant did not submit the

emails in question. Id. Accordingly, the administrative judge found that the

appellant failed to nonfrivolously allege the knowledge prong of the

knowledge/timing test. Id.

¶4 The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. He alleges that he provided copies of his emails with the hiring

committee member below and also attaches them to his petition. Id. at 5-7. The

agency has responded to his petition for review, and the appellant has replied t o

its response. PFR File, Tabs 3-4.

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 The Board has jurisdiction over an IRA appeal if the appellant has

exhausted his administrative remedies before OSC and makes nonfrivolous

allegations that (1) he made a protected 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)(2)(A). 2 Salerno v. Department

of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016).

The administrative judge correctly found that the appellant exhausted h is

administrative remedies with OSC.

¶6 Without specifically making a finding, the administrative judge implicitly

found that the appellant exhausted his administrative remedies with regard to his

administrative grievance, EEO claims, and 2018 OIG complaint. ID at 4; IAF,

Tab 12 at 21. Additionally, she implicitly found that the appellant exhausted his

2

A nonfrivolous allegation is an allegation of fact that, if proven, could establish a

prima facie case that the Board has jurisdiction over the appeal. Carney v. Department

of Veterans Affairs, 121 M.S.P.R. 446, ¶ 11 (2014).

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administrative remedies regarding four personnel actions, namely, his

nonselection for four vacancies. ID at 4 n.1; IAF, Tab 8 at 8, Tab 12 at 21, 32.

She found, however, that the appellant did not exhaust with OSC a 2019 OIG

complaint that he submitted below. ID at 4 n.2; IAF, Tab 12 at 46-47. The

parties do not challenge these findings on review, and we see no reason to

disturb them.

The administrative judge correctly found that the appellant’s administrative

grievance and EEO complaints were not protected but that his OIG complaint was

a protected activity.

¶7 The appellant here exhausted his administrative remedies regarding three

activities: his 2010 administrative grievance, his 2012-2014 EEO complaints, and

his 2018 OIG complaint. We address them in turn.

¶8 The administrative judge found that the appellant’s administrative grievance

and EEO activity were not protected activities for purposes of this IRA appeal.

ID at 4-5. The parties do not challenge these findings on review, and we decline

to disturb them. The Board’s IRA jurisdiction covers reprisal for exercising “any

appeal, complaint, or grievance right . . . with regard to remedying a violation of

[5 U.S.C. § 2302(b)(8)].” 5 U.S.C. § 2302(b)(9)(A)(i); see 5 U.S.C. § 1221(a);

Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 7 (2013).

However, the Board’s jurisdiction does not cover claims arising under

section 2302(b)(9)(A)(ii), which includes grievance and EEO claims filed for

reasons other than remedying a violation of section 2302(b)(8). 5 U.S.C.

§ 1221(a); Mudd, 120 M.S.P.R. 365, ¶ 7; see also Young v. Merit Systems

Protection Board, 961 F.3d 1323, 1329 (Fed. Cir. 2020). 3

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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, 128 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).

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

review of this decision before any appropriate court of appeal.

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¶9 The substance of the appellant’s grievance here did not concern remedying

an alleged violation of section 2302(b)(8), but rather, his assignment of work in

relation to his position description. IAF, Tab 12 at 41-42. Therefore, insofar as

the appellant alleged that the agency took personnel actions in reprisal for his

grievance, we agree with the administrative judge that the Board lacks

jurisdiction to consider such allegations in the context of this IRA appeal. Mudd,

120 M.S.P.R. 365, ¶ 7.

¶10 As to the appellant’s complaints to an EEO officer about various actions by

his supervisors which he perceived as abusive, the record does not appear to

contain the appellant’s communications with the EEO office r. IAF, Tab 12 at 29,

32, 35. However, the appellant provided emails which are seemingly his attempts

to rectify the situation with management. Id. at 51-57. The emails seek to

remedy allegedly hostile behavior from management officials but do not attribute

that hostility to any prior alleged whistleblowing. The appellant has not

separately alleged that he sought to remedy whistleblower reprisal in his contacts

with the EEO officer. Accordingly, we agree with the administrative judge that

the appellant failed to nonfrivolously allege that his complaints to the EEO

officer were protected activities.

¶11 Finally, the administrative judge found that the appellant’s 2018 OIG

complaint was a protected activity under section 2302(b)(9). ID at 5. The parties

do not challenge this finding on review, and we agree with the administrative

judge. Regardless of the content of the disclosure itself, section 2302(b)(9)(C)

protects disclosures of information to the Inspector General, and the Board has

recognized that disclosures to the OIG are protected. 5 U.S.C. § 2302(b)(9)(C);

see Corthell v. Department of Homeland Security, 123 M.S.P.R. 417, ¶¶ 9-13

(2016) (determining that the Board has IRA jurisdiction over a claim that an

agency retaliated against an employee because it perceived him as having

engaged in the protected activity under section 2302(b)(9)(C) of reporting matters

to the agency’s OIG). The appellant here provided a copy of his 2018 complaint

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to the OIG and a letter from the OIG acknowledging receipt of his complaint.

IAF, Tab 12 at 37, 40. Accordingly, we agree with the administrative judge that

the appellant nonfrivolously alleged that he engaged in protected activity by

filing the 2018 OIG complaint.

The appellant has sufficiently made a nonfrivolous allegation that his OIG

complaint was a contributing factor in his nonselections.

¶12 The administrative judge found that the appellant failed to meet his burden

of proof regarding contributing factor. ID at 5. The appellant on review reasserts

that an individual on the hiring committees, as well as a management official, had

knowledge of his protected activity. PFR File, Tab 1 at 5-7; IAF, Tab 9 at 131,

Tab 10 at 6, 29-30, Tab 12 at 21-22, 24. We agree with the appellant that he met

his jurisdictional burden.

¶13 The final jurisdictional issue an appellant must establish is whether he made

a nonfrivolous allegation that his disclosure or activity was a contributing factor

in the nonselection decisions. Nasuti v. Department of State, 120 M.S.P.R. 588,

¶ 7 (2014). 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 activity was one factor that tended to affect

the personnel action in any way. Bradley v. Department of Homeland Security,

123 M.S.P.R. 547, ¶ 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 protected activity or was influenced by someone who knew of

the activity and that the personnel action occurred within a period of time such

that a reasonable person could conclude that the protected activity was a

contributing factor in the personnel action. Id., ¶¶ 13, 15.

¶14 At this stage, the appellant can meet his burden of proof without

specifically identifying which management officials were responsible for the

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reprisal. Id., ¶ 16. 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. Id. The appellant both below and on review

provided a September 2019 email exchange between himself and a member of

three different hiring committees for positions for which the appellant applied.

PFR File, Tab 1 at 6-7; IAF, Tab 9 at 131, Tab 10 at 29-30. In the email

exchange, the appellant discussed being referred for several positions but not

being interviewed. IAF, Tab 10 at 29-30. He further remarked that there were

some individuals at the location to which he applied that he “had dealings with,

either EEO, [O]IG, or just plain told them they were wrong.” Id. The individual

on the hiring committees responded to this email. Id. at 29.

¶15 The record below reflects that this individual was a panel member for a

Food Services Specialist position, which the appellant applied to, that was filled

in early October 2019. IAF, Tab 9 at 4, 24. The agency provided résumé scoring

sheets from the panel members for this position. Id. at 43-46. The appellant was

the only individual on the certificate of eligibles whose ratings are not included

on the sheet. Id. at 24-25, 43-46. The record further reflects that the individual

the appellant emailed in September 2019 was also a panel member for a

“[Contracting Officer’s Representative] Food Service Specialist” position, for

which the appellant applied, that was also filled in early October 2019. Id. at 66,

81. Additionally, this individual was also a panel member for a “Battalion Food

Service Specialist” position, for which the appellant applied, that was filled in

late August 2019, which predates the panel member’s alleged knowledge of the

appellant’s OIG complaint. IAF, Tab 8 at 84, Tab 10 at 29-30. As to the fourth

vacancy for which the appellant exhausted his administrative remedies, a Food

Service Specialist position filled in late July 2019, this individual was not on the

hiring panel. IAF, Tab 8 at 37.

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¶16 Although the record is unclear as to what role this individual played in the

hiring decisions, or what authority he had, the appellant has nonfrivolously

alleged that he had knowledge of the appellant’s OIG complaint prior to two

October 2019 nonselections at issue in this IRA appeal. We thus find that the

appellant has sufficiently met the knowledge prong of the knowledge/timing test.

Bradley, 123 M.S.P.R. 547, ¶ 16 (finding an appellant met his jurisdictional

burden as to contributing factor when he alleged that s enior agency officials with

knowledge about his protected disclosures conspired with others not to select him

for the position at issue). Moreover, these nonselections occurred within 1 month

after the appellant informed the member of the hiring panel of his OIG complaint,

and less than 2 years after the OIG complaint itself. PFR File, Tab 1 at 6-7; IAF,

Tab 12 at 40, Tab 9 at 4, 66. We therefore find that the appellant has sufficiently

met the timing prong of the knowledge/timing test as well. See Mastrullo v.

Department of Labor, 123 M.S.P.R. 110, ¶ 21 (2015) (finding a personnel action

taken within approximately 1 to 2 years of the appellant’s protected disclosures

satisfied the knowledge/timing test). To the extent the individual on the hiring

panel declared that he was unaware of the appellant’s OIG complaint, we find that

this constitutes a mere factual contradiction of the appellant’s otherwise adequate

prima facie showing of jurisdiction, and we thus may not weigh the evidence and

resolve the conflicting assertions of the parties. See Carney v. Department of

Veterans Affairs, 121 M.S.P.R. 446, ¶ 11 (2014) (explaining that, at the

jurisdictional stage, an administrative judge may not weigh the evidence, and the

agency’s evidence may not be dispositive); see also Hessami v. Merit Systems

Protection Board, 979 F.3d 1362 (Fed. Cir. 2020) (“[W]hether the appellant has

non-frivolously alleged protected disclosures that contributed to a personnel

action must be determined based on whether the employee alleged sufficient

factual matter, accepted as true, to state a claim that is plausible on its face .”).

As such, we find that the appellant has nonfrivolously alleged that his OIG

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complaint was a contributing factor in his two October 2019 nonselections and

remand this appeal for adjudication on the merits. Nasuti, 120 M.S.P.R. 588, ¶ 9.

¶17 The appellant further alleged that the Logistics Readiness Center (LRC)

Director was aware of the appellant’s OIG complaint and had retaliated against

the appellant by influencing individuals involved in his nonselections. IAF,

Tab 12 at 21-22, 24. Any doubt or ambiguity as to whether the appellant has

made nonfrivolous allegations should be resolved in favor of finding jurisdiction.

Bradley, 123 M.S.P.R. 547, ¶ 6; see Nasuti, 120 M.S.P.R. 588, ¶¶ 8-9 (explaining

that at the jurisdictional stage, an appellant’s uncontroverted allegation of

knowledge is sufficient; he does not have to present evidence of actual

knowledge). In light of the nature of the alleged personnel actions , we find the

appellant has nonfrivolously alleged the knowledge prong of the

knowledge/timing test. As discussed above, he filed his OIG complaint less than

2 years before his other two nonselections in July and August 2019. IAF, Tab 8

at 37, 84, Tab 12 at 40. We therefore find that the appellant has nonfrivolously

alleged that he met the timing prong of the knowledge/timing test as well.

Mastrullo, 123 M.S.P.R. 110, ¶ 21. To the extent the members of the hiring

panels declared they were not influenced by the LRC Director in the appellant’s

nonselections, we will not weigh this evidence at this point in the proceedings .

Carney, 121 M.S.P.R. 446, ¶ 11. Accordingly, we find that the appellant has

nonfrivolously alleged that his OIG complaint was a contributing factor in his

July and August 2019 nonselections and remand this appeal for adjudication of

the merits of these alleged nonselections as well. Nasuti, 120 M.S.P.R. 588, ¶ 9.

¶18 Accordingly, we vacate the initial decision. On remand, the administrative

judge may reimplement his prior findings regarding the appellant’s grievance and

EEO complaints in his remand initial decision. The administrative judge shall

then determine whether the appellant established by preponderant evidence that

his 2018 OIG complaint was a contributing factor in the nonselections in

question. If the administrative judge finds that the appellant has met his burden,

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he shall determine whether the agency has met its burden to show by clear and

convincing evidence that it would have made the same hiring decisions absent the

appellant’s protected activity.

ORDER

¶19 For the reasons discussed above, we remand this case to the Atlanta

Regional Office for further adjudication in accordance with this Remand Order.

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.