Opinion

James Ryan v. Department of Defense

Court: Merit Systems Protection Board
Filed: May 30, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.4%

explaining that an employee’s “purely subjective perspective” is insufficient to establish the reasonableness of his belief of Government wrongdoing “even if shared by other employees”

How later courts described this case

explaining that an employee’s “purely subjective perspective” is insufficient to establish the reasonableness of his belief of Government wrongdoing “even if shared by other employees”
finding that in an IRA appeal, “[t]he standard for establishing subject matter jurisdiction and the right to a hearing is assertion of a nonfrivolous claim ,” while “the standard for establishing a prima facie case is preponderant evidence ”

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JAMES THOMAS RYAN, DOCKET NUMBERS

Appellant, DC-1221-14-0323-B-1

DC-1221-14-0378-B-1

v. DC-1221-14-0434-B-1

DC-1221-14-0700-B-1

DEPARTMENT OF DEFENSE, DC-1221-16-0177-W-2

Agency. DC-1221-16-0178-W-2

DC-1221-16-0179-W-2

DATE: May 30, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL 1

James Thomas Ryan, Bel Air, Maryland, pro se.

Elizabeth E. Pavlick, Esquire, and Lundi McCarthy Shafiei, Esquire,

Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

in this individual right of action (IRA) appeal, which denied his request for

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

corrective action. Generally, we grant petitions such as this one only in the

following circumstances: the initial decision contains erroneous findings of

material fact; the initial decision is based on an erroneous interpre tation 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. Title 5 of the Code of

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully

considering the filings in this appeal, we conclude that the petitioner has not

established any basis under section 1201.115 for granting the petition for review.

Therefore, we DENY the petition for review. Except as expressly MODIFIED to

address the appellant’s claim that he disclosed a violation of an agency rule, we

AFFIRM the remand initial decision.

BACKGROUND

¶2 The Board remanded this IRA appeal to the regional office, finding that the

appellant established jurisdiction over his claim that the agency had taken several

personnel actions in reprisal for his January 4 and April 5 , 2013 disclosures to the

agency’s Office of Professional Responsibility (OPR). Ryan v. Department of

Defense, MSPB Docket Nos. DC-1221-14-0323-W-1, DC-1221-14-0378-W-1,

DC-1221-14-0434-W-1, DC-1221-14-0700-W-1, Remand Order (Feb. 4, 2016)

(Remand Order). 2 The appellant subsequently filed three additional IRA appeals

alleging that the agency had taken additional personnel actions in reprisal for the

The appellant originally filed four separate IRA appeals, MSPB Docket Nos.

DC-1221-14-0323-W-1, DC-1221-14-0378-W-1, DC-1221-14-0434-W-1, and DC-1221-

14-0700-W-1, which the administrative judge joined for adjudication because he found

that they all “arise from the same or related underlying events, and involve aspects of

the same whistleblowing claim.” Remand Order, ¶ 5 n.2.

same disclosures, 3 and the administrative judge joined those appeals with the

remanded appeals for a hearing on the appellant’s claim that the agency took six

personnel actions in retaliation for his January 4 and April 5, 2013 disclosures.

Ryan v. Department of Defense, MSPB Docket No. DC-1221-14-0323-B-1,

Remand File (RF), Tabs 12, 59; Tab 72, Remand Initial Decision (RID) at 5-6.

¶3 The appellant’s disclosures concern four separate incidents involving the

same coworker, who was a fellow police officer. RID at 7. The administrative

judge carefully analyzed the appellant’s disclosures concerning each alleged

incident to determine whether the appellant had proved by preponderant evidence

that a disinterested observer, with knowledge of the essential facts known to and

readily ascertainable to him, could reasonably conclude that his disclosure

evidenced a violation of law. RID at 7-18; see 5 U.S.C. § 2302(b)(8)(A)(i);

Baldwin v. Department of Veterans Affairs, 113 M.S.P.R. 469, ¶ 12 (2010)

(discussing this standard at the jurisdictional stage of an IRA appeal) . As set

forth below, the administrative judge found that the appellant failed to establish

by preponderant evidence that he made a protected disclosure under 5 U.S.C.

§ 2302(b)(8). RID at 7-18.

¶4 The appellant’s January 4, 2013 memorandum to OPR recounts three

separate incidents. RF, Tab 21 at 12-13. Concerning the first incident, which

allegedly occurred during an honor guard assignment in June or July 2012 at the

Raven Rock Mountain Complex, the appellant contended that another officer had

intentionally given him conflicting commands in an effort to embarrass him. Id.

The administrative judge found no evidence, save for the appellant’s assertion,

that the other officer had done so. RID at 8. Even crediting the appellant’s

account of the incident, the administrative judge determined that the actions

described failed to satisfy the elements of an assault, finding no evidence of a

threat or attempt of violence or injury. Id. Moreover, even if the appellant’s

Ryan v. Department of Defense, MSPB Docket Nos. DC-1221-16-0177-W-2,

DC-1221-16-0178-W-2, and DC-1221-16-0179-W-2.

assertion that the other officer intended to embarrass, mock, or disparage him

were true, the administrative judge found that the appellant could not have

reasonably believed that such conduct constituted an assault. Id.

¶5 In the second incident, which allegedly occurred on August 28, 2012, in

Mitchellville, Maryland, the appellant claimed that the other officer placed his

left hand on the appellant’s chest and pushed him, stating “get out the way” in a

taunting manner. RF, Tab 21 at 12-13; Hearing Transcript (HT) at 9 (testimony

of the appellant). Because the appellant’s testimony on this point was unrebutted,

the administrative judge found it more likely than not true that some manner of

physical contact occurred between the appellant and the other officer . RID at 10.

Nevertheless, citing the lack of any other evidence in support of the appellant’s

version of the incident, particularly considering how many officers were present

when it allegedly happened, the appellant’s failure to raise the incident with

anyone until January 2013, and his history of making unfounded accusations

against his coworkers, the administrative judge found that the appellant could not

have reasonably believed that the other officer’s actions amounted to an assault.

RID at 10-11.

¶6 Concerning the third incident, which occurred on January 4, 2013, the

appellant recounted an argument with the other officer over the volume of the

radio in an agency vehicle. RF, Tab 21 at 12-13. Following the argument, when

retrieving their equipment from the back of the vehicle , the appellant alleged that

the other officer then made unnecessary physical contact with him, laughed and

smirked, and said to him “[y]ou better leave that alone or you’ll get smacked.”

Id. at 12. The administrative judge found that, even if he assumed the contact

was intentional, the appellant had consistently interpreted the episode as an

affront to his dignity and not a threat of bodily harm by force or violence ,

observing that the appellant’s reactions, as well as his hearing testimony,

undermined his assertion that the other officer either caused him apprehension or

intimidated him. RID at 14-16. Thus, the administrative judge found that the

appellant also failed to show that he reasonably believed he was assaulted by the

other officer on January 4, 2013. RID at 16.

¶7 In his April 5, 2013 memorandum to OPR, the appellant recounted a fourth

alleged assault, asserting that when he was entering an agency facility earlier that

day, the other officer had stared at him with a “scorn[ful]/resentful/angry

expression on his face.” Ryan v. Department of Defense, MSPB Docket No.

DC-1221-14-0434-W-1, Initial Appeal File (0434 IAF), Tab 10 at 5. The

appellant, who was off-duty at the time, remarked that the other officer was in

possession of an agency firearm, and he asserted that the look he received was an

attempt by the other officer to intimidate him with physical force. Id. In

reviewing the appellant’s allegations, the administrative judge cited a

memorandum issued by the Chief of OPR concerning OPR’s review of security

camera footage of the alleged incident, which did not support the appellant’s

version, and found that the record contained no evidence as to what, if anything,

took place. RID at 16-17; RF, Tab 67 at 4. Nevertheless, the administrative

judge found that, even if the appellant’s allegations were true, he could not have

reasonably believed that the other officer’s expression of scorn caused him to

suffer an assault. RID at 18. Accordingly, the administrative judge found that

the appellant failed to establish that his January 4 and April 5, 2013 disclosures

were protected under 5 U.S.C. § 2302(b)(8). Id.

¶8 In his petition for review, the appellant argues that the administrative judge

misinterpreted his allegations and used too restrictive a definition of assault in

finding that his January 4 and April 5, 2013 disclosures were not protected.

Petition for Review (PFR) File, Tab 1. He also challenges the administrative

judge’s factual and credibility determinations. Id. He asserts that he reasonably

believed that the June or July 2012 incident evidenced “a security violation (a

violation of [Department of Defense (DOD)] regulation [Administrative

Instruction (AI)] 30,” rather than an assault. Id. at 5-6. The agency has filed a

response to the appellant’s petition for review, and the appellant has filed a reply

to the agency’s response. PFR File, Tabs 2, 4.

DISCUSSION OF ARGUMENTS ON REVIEW

¶9 After establishing the Board’s jurisdiction in an IRA appeal , an appellant

must establish a prima facie case of whistleblower retaliation by proving by

preponderant evidence that he made a protected disclosure that was a contributing

factor in a personnel action taken against him. 4 5 U.S.C. § 1221(e)(1); Lu v.

Department of Homeland Security, 122 M.S.P.R. 335, ¶ 7 (2015). As noted

above, the administrative judge found that the appellant failed to prove at least

one element of this burden—that the relevant disclosures were protected. RID

at 7-18. This decision will be similarly focused.

¶10 A protected disclosure is one that an appellant reasonably believes

evidences a 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)(A); Chavez v. Department of

Veterans Affairs, 120 M.S.P.R. 285, ¶ 18 (2013). The test for determining if an

employee’s belief regarding the disclosed matter is reasonable is whether a

disinterested observer with knowledge of the essential facts known and readily

This appeal involves events occurring both before and after the December 27, 2012

effective date of the Whistleblower Protection Enhancement Act of 2012 (WPEA).

Pub. L. No. 112-199, § 202, 126 Stat. 1465, 1476. Because the changes made by the

WPEA do not affect the outcome of this appeal, we find it unnecessary to resolve

whether it applies here.

Similarly, during the pendency of this appeal, the National Defense Authorization Act

for Fiscal Year 2018, Pub. L. No. 115-91, 131 Stat. 1283, was signed into law on

December 12, 2017. It expanded the activities protected under 5 U.S.C.

§ 2302(b)(9)(C) to include cooperating or disclosing information to “any . . . component

responsible for internal investigation or review.” Pub. L. No. 115-91, § 1097(c)(1)(A),

131 Stat. 1283, 1618. That expansion does not affect the outcome of this appeal

because all of the relevant events occurred prior to December 12, 2017. Edwards v.

Department of Labor, 2022 MSPB 9, ¶¶ 29-33 (finding that the changes to section

2302(b)(9)(C) do not apply retroactively).

ascertainable by the employee could reasonably conclude that the action s of the

agency evidenced a violation of law, rule, or regulation, or one of the other

conditions set forth in 5 U.S.C. § 2302(b)(8). Baldwin, 113 M.S.P.R. 469, ¶ 12.

The appellant failed to prove that his disclosure about the June or July 2012

incident was protected.

¶11 In his January 4, 2013 memorandum to OPR, the appellant asserted that his

coworker gave him conflicting orders during an honor guard ceremony in June or

July 2012 and then mocked him for being out of step, all in an effort to embarrass

the appellant. RID at 7-8; RF, Tab 21 at 12. The administrative judge found it

more likely that any misstep on the part of the appellant was the result of “his

own mistake, simple miscommunication, or other unremarkable cause .” RID at

8-9. He concluded that, even assuming the appellant’s coworker gave the

appellant a false or conflicting command as claimed, the appellant could not have

reasonably believed that he was assaulted. RID at 7-9.

¶12 On review, the appellant presents two brief but distinct arguments about

this disclosure. First, the appellant challenges the administrative judge’s

definition of assault, arguing that the administrative judge should have used the

state law definition of assault, rather than one from Black’s Law Dictionary. 5

PFR File, Tab 1 at 6. Second, the appellant argues that the June or July 2012

incident amounted to a violation of a particular agency policy regarding

workplace violence. Id. at 5-6.

¶13 Regarding this disclosure and the concept of an “assault,” we note that t he

underlying incident took place in Pennsylvania. HT at 8 (testimony of the

appellant). Pennsylvania defines simple assault, in pertinent part, as “attempts by

The appellant argued that the Maryland or Virginia definitions should have been used.

PFR File, Tab 1 at 6. Because the incident occurred in Pennsylvania, we infer that he

meant to refer to Pennsylvania law. He also claims that an assault is a threat of

unwanted touching but notably does not claim that any threat of touching occurred. Id.

physical menace to put another in fear of imminent serious bodily injury .” 6

18 Pa. Cons. Stat. Ann. § 2701(a)(3); see Baldwin, 113 M.S.P.R. 469, ¶¶ 18-21

(considering the various definitions of assault, including under South Carolina

law, in finding that an appellant nonfrivolously alleged that he reasonably

believed that his coworker’s action of waving a box cutter at him in a threatening

manner was an assault).

¶14 The appellant has not alleged that he believed his fellow officer intended to

cause him fear of bodily injury. The appellant testified that the other officer

deliberately misdirected him to “embarrass” and “taunt.” HT at 69 (testimony of

the appellant). This allegation is not something a reasonable individual with the

appellant’s knowledge in law enforcement would believe was an assault. See

Schlosser v. Department of the Interior, 75 M.S.P.R. 15, 22 (1997) (considering

that the appellant was a police officer in determining the reasonableness of his

belief that he disclosed a violation of law). Accordingly, we agree with the

administrative judge’s finding that the appellant did not believe, and a

disinterested observer in his position would not believe, that his fellow officer

intended to cause him fear of bodily harm. RID at 9. This is true under the more

generalized definition of “assault” used by the administrative judge as well as the

definition specific to Pennsylvania.

¶15 As previously stated, the appellant argues, in the alternative, that his

disclosure revealed a violation of AI 30, which he describes as making it a

“security violation . . . to cause someone embarrassment in the workplace because

it is a sign of workplace violence.” PFR File, Tab 1 at 5-6. The appellant also

raised this claim during the hearing below. HT at 8 (testimony of the appellant).

The administrative judge did not address this argument, and we modify the initial

The appellant has not alleged that his fellow officer actually harmed him or intended

to harm him. RF, Tab 21 at 12; see 18 Pa. Cons. Stat. Ann. § 2701(a)(1)-(2) (setting

forth alternative definitions of “assault”).

decision to do so. We find that the appellant did not prove he reasonably

believed that his coworker violated AI 30.

¶16 As an initial matter, we find that the appellant has proven that AI 30

constitutes a “rule” for purposes of determining if the agency violated a “law,

rule, or regulation.” Although the WPEA does not define “rule,” it includes

established or authoritative standards for conduct. See Rusin v. Department of

the Treasury, 92 M.S.P.R. 298, ¶¶ 15-17 (2002) (citing dictionary definitions of

the word “rule”). In finding that this pro se appellant met his burden, we have

broadly construed the whistleblower reprisal statutory scheme in his favor. See

Rusin, 92 M.S.P.R. 298, ¶ 17 (acknowledging that the Whistleblower Protection

Act is a remedial statute intended to improve protections for Federal employees

and should be broadly construed in favor of those whom it was intended to

protect); Melnick v. Department of Housing and Urban Development,

42 M.S.P.R. 93, 97-98 (1989) (explaining that the Board construes pro se

pleadings liberally, and parties that are pro se are not required to plead issues

with legal precision), aff’d, 899 F.2d 1228 (Fed. Cir. 1990) (Table). There is no

de minimis exception to the protection afforded disclosures of the violation of a

law, rule, or regulation. See Fisher v. Environmental Protection Agency,

108 M.S.P.R. 296, ¶ 9 (2008).

¶17 We have been unable to find AI 30 in the record. This contrasts with

another agency policy, AI 8, along with some legal definitions of assault, which

the appellant submitted into evidence. 7 RF, Tabs 46-47. However, the absence

of this policy from the record is not fatal to the appellant’s claim. An appellant

is not required to identify the law, rule, or regulation that was violated “by title

or number, when [his] statements and the circumstances surrounding the making

Although the appellant’s updated exhibit list identifies AI 8 as Exhibit M, RF, Tab 56

at 4, his exhibit list does not include AI 30, and, as noted above, he fails to identify the

document on review. Further, we were unable to access AI 30, which is listed as a

controlled document, on the internet. DOD Issuances, AI 30,

https://www.esd.whs.mil/Directives/issuances/admin_inst/ (last visited May 26, 2023).

of those statements clearly implicate an identifiable violation of law, rule, or

regulation.” See Chavez, 120 M.S.P.R. 285, ¶ 19 (quoting Langer v. Department

of the Treasury, 265 F.3d 1259, 1266 (Fed. Cir. 2001)). Thus, we conclude that

AI 30 is an agency “rule” for purposes of the appellant’s whistleblower reprisal

claim.

¶18 The appellant described AI 30 as a workplace violence policy that protects

against embarrassment. PFR File, Tab 1 at 5-6; HT at 8 (testimony of the

appellant). He testified that his coworker committed a “security violation” by

“deliberately caus[ing the appellant] embarrassment in front of a group of

people.” HT at 70 (testimony of the appellant). We find that the appellant failed

to prove that he reasonably believed that his coworker deliberately embarrassed

him. 8 The appellant’s coworker testified that he gave the same verbal commands

to the entire honor guard, “and everyone did the same move except for [the

appellant].” HT at 138 (testimony of the accused officer). The administrative

judge concluded that the appellant’s missteps during the ceremony were due to

“his own mistake, simple miscommunication, or other unremarkable cause.” RID

at 8-9. In so finding, the administrative judge credited the testimony of the

appellant’s fellow officer regarding the June or July 2012 incident after holding a

hearing. RID at 7-9. The Board defers to an administrative judge’s credibility

determinations when they are based, explicitly or implicitly, on observing the

demeanor of witnesses testifying at a hearing; the Board may overturn such

determinations only when it has “sufficiently sound” reasons for doing so. Haebe

v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). We find no such

sufficiently sound reasons here.

¶19 The administrative judge did not specifically address whether the appellant

reasonably believed his coworker acted deliberately. We find that the appellant

failed to provide evidence supporting such a claim. The appellant has the burden

In light of this finding, we need not reach the issue of whether the appellant proved

that he reasonably believed AI 30 prohibited deliberately embarrassing someone.

of proving that it is more likely than not that he reasonably believed, as relevant

here, that his coworker deliberately embarrassed him in violation of AI 30. See

Lu, 122 M.S.P.R. 335, ¶ 7 (setting forth an appellant’s burden to prove his claim

on the merits by preponderant evidence); 5 C.F.R. § 1201.4(q) (defining

preponderant evidence as the degree of relevant evidence that a reasonable

person, considering the record as a whole, would accept as sufficient to find that a

contested fact is more likely to be true than untrue). He gave speculative and

conclusory testimony that his coworker gave him conflicting instructions “for the

purpose of causing [him] embarrassment” and “intentionally miscommunicat[ed]

information to [him].” Id. (testimony of the appellant). He provided no details

supporting these conclusions, and we find that the appellant’s testimony does not

meet his burden of proving by preponderant evidence that he reasonably believed

his coworker was motivated to embarrass him.

¶20 For the first time on review, the appellant asserts that his coworker “told

[the appellant] privately to march in a wheel pattern when [the coworker] gave

[the appellant] the command to ‘march.’” PFR File, Tab 1 at 5. 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. Clay v. Department of the

Army, 123 M.S.P.R. 245, ¶ 6 (2016). We have been unable to locate in the record

below that the appellant claimed or provided evidence that his coworker gave him

a private order to walk in a wheel pattern when ordered to march. For example,

the appellant did not testify regarding any such order or refer to it in his

January 4, 2013 disclosure. HT at 8, 68-70 (testimony of the appellant); RF,

Tab 21 at 12.

¶21 The appellant argues on review that he did not previously challenge his

coworker’s testimony regarding the June or July 2012 incident because while his

coworker testified that he gave the same “command” to all members of the honor

guard, he gave the appellant a different “order.” PFR File, Tab 1 at 5. The

appellant appears to distinguish between a proper command, which he implicitly

concedes his coworker gave him, and a “conflicting order[],” which he is now

asserting his coworker gave him privately. Id. We do not find the appellant’s

stated distinction between orders and commands to be a reason fo r failing to

exercise the basic due diligence of raising this argument below or giving a

complete version of what occurred in June or July 2012 during his testimony.

Further, we observe that the appellant is, in essence, attempting to impeach his

coworker’s credibility, and such evidence is not a basis for granting review.

Bucci v. Department of Education, 42 M.S.P.R. 47, 55 (1989) (explaining that

evidence offered merely to impeach a witness’s credibility is not generally

considered new and material). Accordingly, we find that the appellant failed to

prove that he reasonably believed his fellow officer deliberately embarrassed him

in violation of AI 30.

The appellant failed to prove that his disclosure about the August 2012 incident

was protected.

¶22 Unlike the one discussed above, the second incident recounted in the

appellant’s January 4, 2013 memorandum, which he alleged occurred in Maryland

on August 28, 2012, did involve physical touching. RF, Tab 21 at 12. For the

following reasons, we also agree with the administrative judge that the appellant

failed to establish that he reasonably believed that he disclosed conduct th at

comprised an assault. 9 RID at 11. The appellant testified that the other officer

pushed him, knocked him off balance, and told him to “get out of the way.” HT

The appellant alleged in his disclosure concerning this incident that he believed, based

on his coworker’s behavior, that he was a “habitual drunkard,” which he characterized

as “conduct unbecoming.” RF, Tab 21 at 12. In his hearing testimony, the appellant

corrected this statement, indicating that he meant to allege that his coworker had a

drinking problem. HT at 17, 76-77, 80-83 (testimony of the appellant). The appellant

restates his belief that his coworker had a drinking problem on review. PFR File, Tab 1

at 10, 26. However, he does not appear to have argued below or on review that he made

a protected disclosure as to the other officer’s alleged drinking problem. RID at 12-13

n.4; PFR File, Tab 1 at 26.

at 8-9, 70 (testimony of the appellant). The appellant explained that if he had not

retreated, “sooner or later I would have toppled over,” but he went on to assert

that, “because I was standing on a hill and I had a good footing to begin with ,” he

did not fall. Id. at 74-75. The administrative judge found that “some manner of

physical contact occurred.” 10 RID at 10. However, he did not credit the

appellant’s assertion that he believed his coworker’s conduct amounted to an

assault. RID at 11. In so finding, the administrative judge considered, among

other factors, the appellant’s history of making unfounded accusations against his

coworkers. Id.

¶23 On review, the appellant argues that this consideration was improper. We

disagree. Evidence of a witness’s character, particularly as to his veracity, is an

appropriate consideration for credibility determinations. Smith v. Department of

Veterans Affairs, 93 M.S.P.R. 424, ¶ 18 (2003); Hillen v. Department of the

Army, 35 M.S.P.R. 453, 458 (1987). The appellant also offers information in

support of his prior claims of coworker misconduct. PFR File, Tab 1 at 12-13.

We decline to consider this information on review. See Avansino v. U.S. Postal

Service, 3 M.S.P.R. 211, 214 (1980) (explaining that, under 5 C.F.R.

section 1201.115, the Board generally will not consider evidence submitted for

the first time with the petition for review absent a showing that it was unavailable

before the record was closed despite the party’s due diligence).

¶24 The appellant further argues that the administrative judge failed to apply

Maryland law when determining that the appellant did not reasonably believe his

coworker assaulted him. PFR File, Tab 1 at 9-10. Second-degree or

misdemeanor assault in Maryland includes the intent-to-frighten if (1) the

defendant commits an act with the intent to place a victim in fear of immediate

The appellant argues that the administrative judge should have credited his sworn

statement that his coworker touched him over his coworker’s denial. PFR File, Tab 1

at 7-8; RID at 9-10; HT at 8-9; RF, Tab 21 at 101, Tab 37 at 22-23. Because the

administrative judge found that the alleged physical contact occurred, we discern no

basis to disturb his finding.

physical harm; (2) the defendant has the apparent ability, at the time, to bring

about the physical harm; and (3) the victim is aware of the impending physical

harm. 11 Jones v. State, 103 A.3d 586, 589 (Md. 2014) (internal quotations and

citations omitted); see Md. Code Ann., Criminal Law § 3-203 (prohibiting

second-degree assault and identifying it as a misdemeanor).

¶25 Even applying this definition, we find no error in the administrative judge’s

finding that the appellant did not reasonably believe that the incident in question

amounted to criminal assault. RID at 11. The administrative judge found that the

appellant’s claim of assault was not credible because the incident allegedly

occurred in front of fellow officers and the appellant claimed he responded only

by stating “don’t do that” and did not report the incident until 6 months later.

RID at 10-11; RF, Tab 62 at 12-13. Further, the appellant denied that his fellow

officer was angry but rather asserted that he was “[h]aughty,” “[c]ondescending,”

and “[s]uperior.” RF, Tab 62 at 32; RID at 11. Thus, the appellant’s behavior

during and after the incident, and his characterization of his coworker’s frame of

mind, support the administrative judge’s finding that the appellant did not

reasonably believe his coworker intended to cause him immediate ph ysical

harm. 12 RID at 11.

¶26 The appellant also argues that his fellow officer committed the

misdemeanor of “simple assault” because the appellant responded to his fellow

officer’s actions by telling “him not to do it.” PFR File, Tab 1 at 10; HT at 9

First-degree assault involves an intentional “cause or attempt to cause serious

physical injury.” Md. Code Ann., Criminal Law § 3-202. Because the burden to prove

first-degree assault is higher, we will focus on the lower burden of proving

second-degree assault.

As to both the August 28, 2012 and April 5, 2013 incidents, the appellant observed

that the other officer had an agency firearm in his possession during the alleged assault.

0434 IAF, Tab 10 at 5; HT at 8-9 (testimony of the appellant). The appellant and his

coworker were both police officers and were required to carry guns as part of their jobs.

We are not persuaded that a disinterested observer in the appellant’s position would

have found his coworker’s possession of a firearm unusual or, without more,

threatening.

(testimony of the appellant). It is unclear on what the appellant bases his belief

that his warning converted his coworker’s actions into an assault. In any event,

the appellant has cited to no legal authority for his claim, and we are unable to

locate any.

¶27 On review, the appellant also questions the administrative judge’s reliance

on his 6-month delay in reporting the incident as a factor in determining the

reasonableness of his belief that he was assaulted. PFR File, Tab 1 at 9. The

Board has found, in the context of a chapter 75 adverse action, that in deciding

whether an agency has proven that an employee made a threat, it applies the

reasonable person standard, considering the listeners’ reactions, the listeners’

apprehension of harm, the speaker’s intent, any conditional nature of the

statements, and any attendant circumstances. Metz v. Department of the

Treasury, 780 F.2d 1001 (Fed. Cir. 1986); Rose v. U.S. Postal Service,

109 M.S.P.R. 31, ¶ 8 (2007). As in a chapter 75 action, we find that the

administrative judge’s consideration of the appellant’s response to his coworker’s

actions, including his delay in reporting them, was appropriate. In addition, we

agree that the appellant’s delay in reporting the incident undermines his claim

that a reasonable person in his position would have found that his fellow officer’s

behavior evidenced an intent to cause physical harm.

¶28 The appellant also argues that agency officials essentially believed him

because they started an investigation into his allegations of assault and did not

accuse him of making a false statement. PFR File, Tab 1 at 11. We decline to

infer that the appellant reasonably believed he was assaulted because the agency

started an investigation based on his then-unchallenged allegations. RF, Tab 37

at 21-23; see Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999)

(explaining that an employee’s “purely subjective perspective” is insufficient to

establish the reasonableness of his belief of Government wrongdoing “even if

shared by other employees”). Nor do we view the agency’s decision not to take

action for alleged false statements as undermining the administrative judge’s

finding that a reasonable person would not have viewed the incident as an assault.

RID at 11.

The appellant failed to prove that his disclosure about the January 2013 incident

was protected.

¶29 The third incident set forth in the appellant’s January 4 , 2013 letter

occurred in Virginia on the same day. RF, Tab 21 at 12-13; 0434 IAF, Tab 10 at

5; RID at 16. It began with a disagreement between the appellant and his fellow

officer regarding the volume of a car radio. RF, Tab 21 at 12. About 30 minutes

later, while the appellant was removing his equipment from the rear of the

vehicle, he alleged that his fellow officer “intentionally made unnecessary

physical contact with the right side of his body to the left side of [the appellant’s]

body (assault) as if [the appellant] was not standing there and started to laugh

(taunt) with a smirk on his face.” RF, Tab 21 at 12, Tab 62 at 5. The appellant

described his coworker’s contact as a “nudge.” RF, Tab 62 at 6 .

¶30 The appellant also asserted that he responded to the nudge by asking, “Did

you see me standing there?” RF, Tab 21 at 12; HT at 10 (testimony of the

appellant). Apparently referring to the earlier dispute over the radio, the fellow

officer then stated “leave that alone or you’ll get smacked,” which the appellant

testified that he interpreted as a threat. RF, Tab 21 at 12; PFR File, Tab 1 at 7-8;

HT at 70-71 (testimony of the appellant). During the resulting agency

investigation, the appellant indicated that he responded to his coworker’s conduct

by laughing. RF, Tab 6 at 5. The administrative judge found that the evidence

suggested that any contact during the episode was inadvertent on the other

officer’s part, and he found that the appellant’s own reactions undermined his

assertion that the other officer had intimidated him. RID at 15. Instead, the

appellant’s description of the incident indicated that he was a participant, not a

victim. For example, he claimed in his testimony that he and his coworker

essentially “locked horns.” HT at 70 (testimony of the appellant); RID at 12-16.

¶31 The appellant disputes the administrative judge’s conclusion that his fellow

officer’s contact was likely inadvertent. PFR File, Tab 1 at 16-17; RID at 14.

When, as here, an administrative judge’s findings are “intertwined with issues of

credibility and an analysis of [the appellant’s] demeanor at trial,” the Board

affords them “special deference.” Purifoy v. Department of Veterans Affairs,

838 F.3d 1367, 1373 (Fed. Cir. 2016); HT at 140, 143-44 (testimony of the

accused officer). The Board may overturn such determinations only when it has

“sufficiently sound” reasons for doing so. Haebe, 288 F.3d at 1301. The

appellant’s arguments simply reweigh the various factors relevant to credibility

determinations. PFR File, Tab 1 at 16-17; see Hillen, 35 M.S.P.R. at 458

(identifying the factors an administrative judge must consider in resolving

credibility issues). We are not persuaded by the appellant’s assertions, which

include giving weight to his own unsubstantiated testimony that his coworker

“does not like white people.” PFR File, Tab 1 at 16-17; HT at 72 (testimony of

the appellant).

¶32 Under Virginia law, an assault is “an attempt with force and violence, to do

some bodily hurt to another, whether from wantonness or malice, by means

calculated to produce the end.” United States v. Carthorne, 726 F.3d 503, 512

(4th Cir. 2013) (quoting Montague v. Commonwealth, 684 S.E.2d 583, 588

(Va. 2009)). The appellant’s conclusory statement on review that the other

officer’s actions were “unwanted, offensive, physical contact” again falls short of

conduct that a reasonable person would view as an assault. PFR File, Tab 1 at 16.

In addition, his characterization of his laugh as “incredulous” does not undermine

the administrative judge’s finding that the appellant’s laughter and other behavior

following the incident undermined his claim that he felt intimidated. Id. at 19-20;

RID at 15. In fact, as the administrative judge observed, the appellant indicated

that his immediate response of asking if his coworker saw him was to attempt to

obtain an “incriminating statement” from his coworker in front of their superiors.

RID at 15-16; HT at 10-11 (testimony of the appellant). On review, the appellant

defends this behavior as “a common law enforcement tactic .” PFR File, Tab 1

at 21. We therefore agree with the administrative judge that the appellant ’s

response did not reflect surprise or alarm. RID at 15; PFR File, Tab 1 at 21. We

further agree that the appellant failed to establish that he reasonably believed that

he was disclosing an assault. RID at 16.

¶33 The appellant also argues that the reasonableness of his belief that he was

assaulted is supported by the fact that a Virginia magistrate judge charged the

other officer with a crime based on that officer’s “own written statement

containing his admission of making a threatening statement to me.” 13 PFR File,

Tab 1 at 11-12. The documents that the appellant cites in support of this claim

involve: (1) the Citizen’s Criminal Complaint that he initiated in Virginia

General District Court, in which he alleged that the other officer had assaulted

him; and (2) an email from the other officer to an agency investigator, in which

that officer recounts his version of the incident. RF, Tab 33 at 5-11. The

documents also show that the judge who heard the case found the other office r not

guilty of assault. Id. at 4-5. The appellant’s claim that the magistrate judge

believed any particular fact is without support in the record, and the appellant’s

allegations in his Citizen’s Criminal Complaint are similar to the nonfrivolous

allegations for which the Board found that the appellant established jurisdiction

over his claim and remanded it for adjudication. Remand Order, ¶¶ 3, 14-16.

Nevertheless, in order to establish his claim, the appellant must show by

preponderant evidence that a reasonable person would have believed that he

disclosed conduct that amounted to an assault. E.g., Langer, 265 F.3d at 1265

(finding that in an IRA appeal, “[t]he standard for establishing subject matter

jurisdiction and the right to a hearing is assertion of a nonfrivolous claim ,” while

“the standard for establishing a prima facie case is preponderant evidence ”). We

Although not entirely clear, it appears that this argument concerns the Janua ry 4,

2013 incident because the statement the appellant references concerned that incident.

PFR File, Tab 1 at 11-12; RF, Tab 33 at 11.

are not persuaded that the fact that a magistrate allowed th e appellant’s complaint

to proceed is relevant to our determination on this issue.

¶34 Finally, the appellant argues that the administrative judge should have

granted his request for the testimony of two agency employees who determined

that the appellant’s description of the January 4, 2013 incident was sufficient to

open an agency investigation. PFR File, Tab 1 at 17. However, the appellant did

not offer these witnesses for that purpose. RF, Tab 27 at 36. Further, the

witnesses’ perception of the appellant’s belief as to his fellow officer’s intention,

based on the appellant’s own description of the event to those witnesses, has little

probative value. Under the circumstances, we decline to find that the

administrative judge abused his discretion in finding that their testimony was not

relevant. RF, Tab 59 at 3; see Lee v. Environmental Protection Agency,

115 M.S.P.R. 533, ¶¶ 16-17 (2010) (finding that an administrative judge did not

abuse her broad discretion by excluding a witness who supervised the appellant

during a period that ended more than a year prior to the performance

improvement period at issue in his removal).

The appellant failed to prove that his disclosure about the April 2013 incident

was protected.

¶35 As to the fourth incident, the appellant alleged that on April 5, 2013, his

fellow officer looked at him with scorn, resentment, or anger while on duty and in

possession of his agency firearm. 0434 IAF, Tab 10 at 5. The administrative

judge found that no reasonable person could perceive his coworker’s look as an

assault. RID at 18. The appellant argues that he provided a sworn statement to

OPR that his coworker “tr[ied] to intimidate [him] with physical force” on April

5, 2013. PFR File, Tab 1 at 22-25. He asserts that because the only statement

rebutting his account is unsworn, the administrative judge erred in failing to

credit his version of the incident. Id. at 22-23, 25. We are not persuaded.

Contrary to the appellant’s claim on review, his statement is also unsworn. 0434

IAF, Tab 10 at 5. In any event, the administrative judge did not rely on the

description of the incident provided by the agency. RID at 18; RF, Tab 67 at 4-5.

Rather, in finding no reasonable person could have perceived an assault , he

assumed the appellant’s statement was true. RID at 18. We decline to disturb

this finding.

¶36 The appellant next argues that the administrative judge should have

analyzed whether the appellant proved that his disclosures were contributing

factors in the agency’s actions. PFR File, Tab 1 at 29. We disagree. Because

the administrative judge properly determined that the appellant failed to pro ve he

made a protected disclosure, he was not required to conduct such an analysis.

See Fisher v. Department of the Interior, 2023 MSPB 11, ¶¶ 8-10 (finding that

an appellant failed to prove that his protected activity was a contributing factor

in his separation as the result of a reduction-in-force, and therefore it was

unnecessary to make further findings regarding his whistleblower reprisal claim).

¶37 Finally, the appellant attaches a one-page log that his supervisor completed

of his performance in June and July 2015. PFR File, Tab 1 at 31. He does not

explain the significance of the document, or why he could not have offered it

during the proceedings below. We decline to consider it, as it is not relevant to

the issue of whether the appellant made protected disclosures in 2012 and 2013.

Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (finding that the

Board generally will not grant a petition for review based on new evidence absent

a showing that it is of sufficient weight to warrant an outcome differe nt from that

of the initial decision); Avansino, 3 M.S.P.R. at 214.

¶38 Accordingly, we affirm the administrative judge’s decision to deny

corrective action. 14

We have reviewed the relevant legislation enacted during the pendency of this appeal

and have concluded that it does not affect the outcome of the appeal.

NOTICE OF APPEAL RIGHTS 15

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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, 10, and 11.

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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

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

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, th e

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 16 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the