John Lyons v. Department of the Navy

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOHN LYONS, DOCKET NUMBER

Appellant, SF-1221-16-0019-W-1

v.

DEPARTMENT OF THE NAVY, DATE: June 29, 2023

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

James A. D’Ambrosio, Esquire, San Diego, California, for the appellant.

I.C. LeMoyne, San Diego, California, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

REMAND ORDER

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

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

appeal. For the reasons discussed below, we GRANT the appellant ’s petition for

review, VACATE the initial decision, and REMAND the case to the Western

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

1

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

2

BACKGROUND

¶2 The appellant was employed as an Indoor Shooting Range (ISR) Manager

within the agency’s Special Warfare Group ONE (WARCOM). Initial Appeal

File (IAF), Tab 8 at 74, 78, Tab 27 at 4. In January 2009, the appellant enrolled

himself and an ISR contract employee in the agency’s semi-annual blood lead

monitoring and hearing conservation program. IAF, Tab 7 at 71, Tab 39, Hearing

Transcript, Day 1 (HT1) at 16-17 (testimony of the appellant). The agency

removed them from the program in February 2010, finding that the testing was

unnecessary and, in the case of the contract employee, also improper. HT1 at 18

(testimony of the appellant); IAF, Tab 7 at 57-59.

¶3 In May 2014, the appellant applied for a promotion to Supervisory Range

Manager. IAF, Tab 4 at 16, 98. An agency Human Resources Specialist notified

him on May 23, 2014, that he was not selected for the position. IAF, Tab 7 at 39.

Shortly thereafter, on May 30, 2014, he met with his first-line supervisor, the

Range Director, to discuss the nonselection. Id. at 55-56, 60-61. He then

participated in a meeting with the Operations Officer, the Range Officer, the

Deputy Operations Officer, who was his second-line supervisor, and his first-line

supervisor, on June 5, 2014, and further expressed his concerns. IAF, Tab 4

at 70, Tab 8 at 7. On June 17, 2014, the appellant’s first-line supervisor issued

him a letter of caution to clarify his expectations of conduct after the May 30 and

June 5, 2014 meetings. IAF, Tab 8 at 40-41, Tab 27 at 4.

¶4 On June 27, 2014, the appellant filed an Office of the Chief of Naval

Operations (OPNAV) Navy Employee Report of Unsafe or Unhealthy Working

Condition (OPNAV 5100/11) Form. IAF, Tab 7 at 19. He indicated on the Form

that there had been lead and noise exposure in the ISR as well as deficiencies in

training and occupational health surveillance programs. Id. He also indicated

that his supervisor was made aware that the Industrial Hygienist who was

responsible for testing the ISR and making recommendations had falsified a 2011

report and made false statements to staff in June 2013. IAF, Tab 7 at 19, Tab 32

3

at 57-68. He observed that the agency had ended his regular lead and auditory

testing. IAF, Tab 7 at 19. He also indicated that contractor employees received

semi-annual lead exposure and hearing testing through their parent company. Id.

¶5 The agency’s Occupational Health Program Manager issued an interim

response on July 15, 2014, in which he concluded that the appellant ’s claims were

not validated. Id. at 71-78. However, he stated that, because the appellant was

concerned about lead levels, he had been scheduled for a blood test to set a

baseline for the lead levels in his blood. Id. Later that month, the agency tested

the appellant’s blood for lead exposure. The test revealed high levels of lead

exposure. IAF, Tab 27 at 5. However, it did not reveal long -term exposure to

lead. IAF, Tab 40, Hearing Transcript, Day 2 at 64 (testimony of the appellant’s

second-line supervisor), 192-93 (testimony of the agency’s Industrial Hygienist).

On July 18, 2014, the Occupational Health Program Manager issued his final

response to the appellant’s OPNAV 5100/11 Form. IAF, Tab 7 at 63-64. He

recommended that the Safety Manager modify any requirements for medical

surveillance as necessary based upon blood lead air monitoring results. Id. He

further indicated that, because the appellant showed elevated blood lead levels,

the agency would require his inclusion in a semi-annual blood lead monitoring

and medical surveillance program. Id. The appellant forwarded his

OPNAV 5100/11 Form to the WARCOM Safety Director and others on July 25,

2014, stating that the agency had failed to timely respond to the Form as required

by agency policy. Id. at 43-44, 66-68. He also further disagreed with the

agency’s assessment of the issues he raised in his first submission of the Form,

and expounded on his disclosures in the Form. Id. at 66-67.

¶6 On August 8, 2014, the appellant filed a formal grievance. Id. at 23-26. He

asserted that his first- and second-line supervisors retaliated against him for filing

the OPNAV 5100/11 Form, including by issuing him the letter of caution, his

supervisors did not address a complaint against the Industrial Hygienist for

violating his Privacy Act and Health Insurance Portability and Accountability Act

4

of 1996 rights, and management did not address his complaints about his

worksite. Id. at 23-26. He also questioned whether the agency was properly

recording his additional work hours as “comp. time.” Id. at 25. On

September 19, 2014, the agency issued a response to the grievance. 2 IAF, Tab 6

at 75-76. It stated, among other things, that it would refer his complaint

regarding the failure to safeguard information protected by the Privacy Act to the

Privacy Act Coordinator, and that his unit would be provided with further training

regarding time and attendance regulations. Id. at 76.

¶7 The appellant’s second-line supervisor issued the appellant a notice of

proposed removal on October 28, 2014, on the basis of four specifications of

conduct unbecoming a Federal employee. IAF, Tab 4 at 15-19. The conduct at

issue included the appellant’s alleged attempts to disrupt the ISR’s laser range

operations; “pattern . . . of making unsubstantiated claims and allegations”; and

“hostile, intimidating, and disrespectful conduct towards co -workers and others.”

Id. at 15-17. After considering the appellant’s written and oral responses, the

agency’s deciding official imposed the removal on November 25, 2014, effective

November 28, 2014. IAF, Tab 4 at 22-26, Tab 27 at 5.

¶8 Before the agency had proposed his removal, the ap pellant filed a complaint

with the Office of Special Counsel (OSC) on October 5, 2014. IAF, Tab 4

at 43-128. He amended his OSC complaint to include the proposed and imposed

removal and OSC considered these personnel actions. Id. at 131-34. The

appellant asserted that he made protected disclosures on May 30, 2014, to his

first-line supervisor; on June 27, 2014, in the OPNAV 5100/11 Form as to unsafe

or unhealthy working conditions; and on July 25, 2014, by emailing a copy of the

2

The agency did not consider the letter of caution, as this was not a grievable action.

IAF, Tab 6 at 75. It also did not consider matters addressed in the OPNAV 5100/11

Form because a matter considered under an alternative formal review procedure could

not be grieved. Id. Although the appellant had requested his own reassignment and

discipline against his managers, the agency denied this request. IAF, Tab 6 at 76, Tab 7

at 26.

5

OPNAV 5100/11 Form to other agency officials. Id. at 100-01, 126-28, 132-34.

As to his meeting with his supervisor on May 30, 2014, he alleged that he

disclosed concerns as to the agency’s manipulation of position descriptions,

failure to properly compensate employees for work or permit them to use leave,

poor safety training and culture, and high ISR lead levels. HT1 at 35-39, 42

(testimony of the appellant); IAF, Tab 4 at 9-25, 73, 132. As to the OPNAV

5100/11 Form, the appellant described filing the Form, forwarding it, and filing a

grievance alleging retaliation for filing it. IAF, Tab 4 at 74. Further, he

described that he made another disclosure when he forwarded the OPNAV

5100/11 Form to the WARCOM Safety Director on July 25, 2014, and asserted

that the agency had not properly addressed it because, among other things, it had

not timely responded to the Form. Id. He argued that the agency engaged in a

pattern of retaliation against him, issued him the letter of caution, did not select

him for the Supervisory Range position, denied his workers’ compensation claim,

proposed his removal, and removed him. 3 Id. at 69-72, 132-33. On August 3,

2015, OSC issued a letter stating that, after considering the appellant ’s additional

responses, it had closed out his complaint. Id. at 131. OSC then provided the

appellant with notice of his Board appeal rights. Id.

¶9 The appellant filed the instant IRA appeal. IAF, Tab 1. The administrative

judge found that the appellant exhausted his OSC remedy and the Board has

jurisdiction. IAF, Tab 35 at 2, Tab 51, Initial Decision (ID) at 1, 18 -19.

However, after holding a hearing, the administrative judge issued an initial

decision that denied the appellant’s request for corrective action on the merits.

3

The appellant also asserted that he made the following protected disclosures: (1) in

June 2014, in an email to his first-line supervisor, he stated that performance appraisals

were posted on a shared drive, in violation of the Privacy Act; (2) in 2014 email chains

he stated that, although the laser program was not in compliance with agency

regulations, the site continued to use the lasers; and (3) beginning as early as 2010, he

informed his first-line supervisor that Government contractors were improperly

performing governmental functions, given improper access, and not subject to

appropriate safety testing. IAF, Tab 4 at 15, 24-25, 41, 51-52, 132.

6

ID at 1, 31. As to the May 30, 2014 meeting with his first-line supervisor, the

administrative judge found that the appellant failed to prove that he made the

disclosures alleged. ID at 19-21. As to the June 27, 2014 OPNAV 5100/11

Form, and the forwarding of that Form on July 25, 2014, she found that the

appellant made protected disclosures of health and safety concerns and the

agency’s alleged violation of Occupational Safety and Health Administration

(OSHA) regulations. 4 ID at 22. Because the appellant sought to remedy

whistleblower reprisal in his August 8, 2014 grievance, the administrative judge

concluded the filing of the grievance was a protected activity. ID at 23.

¶10 The administrative judge also determined that the appellant failed to prove

that his protected disclosures and activity were contributing factors in the

agency’s decision not to select him for a position in May 201 4, because his

nonselection predated his disclosures. ID at 23-24. However, she concluded that

he met his burden as to the agency’s decision to propose and impose his removal.

Id. She concluded that the agency proved by clear and convincing evidence that

it would have removed the appellant absent these disclosures and activity. ID

at 24-31.

¶11 The appellant has filed a petition for review. Petition for Revi ew (PFR)

File, Tab 1. The agency has responded to the petition, and the appellant has

replied. PFR File, Tabs 3-4.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge properly determined that the Board has jurisdiction over

this appeal.

¶12 To establish jurisdiction over this IRA appeal, the appellant must first

establish by preponderant evidence that he exhausted his administrative remedy

4

Although the administrative judge stated that she was finding that the appellant

engaged in protected activity under 5 U.S.C. § 2302(b)(9)(A), as is further discussed

below, her actual finding appears to be that the appellant made protected disclosures

under 5 U.S.C. § 2302(b)(8)(A).

7

before OSC and make nonfrivolous allegations of the following: (1) he made a

protected disclosure under 5 U.S.C. § 2302(b)(8) or engaged in protected activity

under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or

activity was a contributing factor in the agency’s decision to take or fail to take,

or threaten to take or fail to take, a personnel action. 5 U.S.C. §§ 1214(a)(3),

1221(e)(1); Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016).

The administrative judge found that the Board has jurisdiction over the appeal.

ID at 1. Neither party challenges this finding on review.

¶13 The appellant provided evidence, and the administrative judge expressly

found, that he exhausted his OSC remedy. ID at 18-19. We agree. IAF, Tab 4

at 123-28, 132-34. The administrative judge did not explain her findings that the

appellant met his burden to nonfrivolously allege that he made protected

disclosures or engaged in protected activities, or that such disclosures or

activities were contributing factors in an agency personnel action. ID at 1; IAF,

Tab 13, Tab 35 at 2. Nonetheless, we sustain her jurisdictional finding. T he

standard for establishing jurisdiction and the right to a he aring in an IRA appeal

is a nonfrivolous allegation that at least one protected disclosure or activity was a

contributing factor in the agency taking or failing to take at least one personnel

action. Fitzgerald v. Department of Agriculture, 97 M.S.P.R. 181, ¶¶ 9-10

(2004); see Bradley v. Department of Homeland Security, 123 M.S.P.R. 547, ¶ 6

(2016) (explaining that any doubt or ambiguity as to whether the appellant made

nonfrivolous jurisdictional allegations should be resolved in favor of finding

jurisdiction). The appellant met that burden. IAF, Tab 4 at 141, Tab 34 at 5 -6.

¶14 Once an appellant establishes jurisdiction over his IRA appeal, he is entitled

to a hearing on the merits of his claim, which he must prove by preponderant

evidence. Salerno, 123 M.S.P.R. 230, ¶ 5. If the appellant proves that his

protected disclosure or activity was a contributing factor in a personnel action

taken against him, the agency is given an opportunity to prove, by clear and

convincing evidence, that it would have taken the same personnel action in the

8

absence of the protected disclosure or activity. 5 U.S.C. § 1221(e)(1)-(2);

Salerno, 123 M.S.P.R. 230, ¶ 5.

The administrative judge properly found that the appellant failed to prove by

preponderant evidence that he made protected disclosures on May 30, 2014.

¶15 After extensively examining the testimonial and record evidence, the

administrative judge found that the appellant failed to prove that he actually made

the statements that he claimed during the May 30, 2014 meeting. 5 ID at 19-21.

The parties do not challenge this finding on review, and we discern no basis to

disturb it. See Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir.

2002) (explaining that the Board must defer 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).

5

The administrative judge’s order and summary of prehearing conference refers to a

May 27, 2014 meeting. IAF, Tab 35 at 2. However, we assume it is referring to the

May 30, 2014 meeting. Further, the initial decision also found that the appellant made

no protected disclosure during a second meeting with managers on June 5, 2014. ID

at 19-21. However, disclosures allegedly made during the June 5, 2014 meeting were

not identified in the prehearing conference summary. IAF, Tab 35 at 2. The summary

clearly identified the disclosures at issue, explained that the issues for decision were

limited to those identified in the summary, and provided the parties with an opportunity

to object. Id. at 2, 5, 9. Neither party objected. Although the appellant identified the

June 5, 2014 meeting in his OSC complaint, he did not claim he made any disclosures

therein, but rather stated that he “did not get a chance to talk without being

interrupted.” IAF, Tab 4 at 127. The parties do not raise the June 5, 2014 meeting as

an issue on review. Therefore, we find it unnecessary to revisit the administrative

judge’s finding that the appellant did not make protected disclosures at that meeting.

ID at 19-21; see Crowe v. Small Business Administration, 53 M.S.P.R. 631, 635 (1992)

(declining to consider arguments raised on review concerning an issue that was not

reflected in a prehearing conference summary to which an appellant had an opportunity

to, but did not, object). Similarly, on review, the appellant appears to assert retaliation

for filing an OSC complaint. PFR File, Tab 1 at 9-10. The order and summary of

prehearing conference does not identify this protected activity. IAF, Tab 35 at 2.

Further, the administrative judge did not address this argument in the initial decision.

ID at 19-23. Thus, this claim is not properly before us.

9

The administrative judge failed to make specific findings as to appellant’s

remaining alleged protected disclosures and activity.

¶16 The administrative judge found that the appellant made a number of

potentially protected disclosures on his June 27, 2014 OPNAV 5100/11 Form. ID

at 22. She identified these disclosures as alleged deficiencies in the agency’s

training and occupational health surveillance programs, falsification of a 2011

report by an industrial hygienist, and false statements by an industrial hygienist at

a June 2013 meeting with ISR staff, and that the appellant “is affected in the

ISR,” and “other locations are affected.” Id. She characterized his July 25, 2014

email forwarding the Form as expressing dissatisfaction with the agency’s

handling of the Form. Id. She then stated, as to both the Form and the

subsequent email, that “while it is evident that certain of the allegations, standing

alone, would not qualify as protected disclosures,” the appellant generally alleged

matters related to health and safety and the agency’s compliance with OSHA

rules, regulations, and standards concerning lead exposure , which she identified

as protected. Id. While the parties do not dispute these findings, we find that we

must vacate them.

¶17 Although the administrative judge stated that she found the appellant

engaged in protected activity under 5 U.S.C. § 2302(b)(9)(A) when he filed and

forwarded his OPNAV 5100/11 Form, it appears that she intended to state that he

made protected disclosures under section 2302(b)(8)(A). ID at 22. An employee

engages in protected activity over which the Board has jurisdiction in an IRA

appeal when he exercises “any appeal, complaint, or grievance right granted by

any law, rule, or regulation—with regard to remedying a violation of

[§ 2302(b)(8)].” 5 U.S.C. § 2302(b)(9)(A)(i); see 5 U.S.C. §§ 1214(a)(3),

1221(a), (e)(1); Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 7

(2013). However, the Board does not have jurisdiction over an IRA appeal

regarding a claim of retaliation for filing an appeal, complaint, or grievance that

does not seek to remedy a violation of section 2302(b)(8); in other words, a claim

10

that does not seek to remedy reprisal for whistleblowing. 5 U.S.C. §§ 1214(a)(3),

1221(a), (e)(1), 2302(b)(9)(A)(ii); Mudd, 120 M.S.P.R. 365, ¶ 7; see Mattison v.

Department of Veterans Affairs, 123 M.S.P.R. 492, ¶¶ 7-8 (2016) (explaining that

a claim of reprisal for filing internal agency appeals that did not seek to remedy

whistleblowing reprisal arose under 5 U.S.C. § 2302(b)(9)(A)(ii)). Here, the

appellant did not allege retaliation for protected disclosures. IAF, Tab 7 at 19,

43-44, 66-67. Thus, the appellant’s OPNAV 5100/11 Form itself did not

constitute protected activity. Despite her charac terization of the OPNAV

5100/11 Form and the email forwarding the Form as constituting a protected

activity, it is apparent that the administrative judge properly considered whether

the Form contained protected disclosures. ID at 22.

¶18 In analyzing the potential disclosures, the administrative judge appears to

have identified only the statements the appellant made on the OPNAV

5100/11 Form itself, as well as a generalized statement of dissatisfaction with the

agency’s response when he forwarded the Form. IAF, Tab 7 at 19. In particular,

in forwarding the Form, the appellant alleged that the agency’s response to his

OPNAV 5100/11 was untimely under agency policy. Id. at 66. The

administrative judge did not identify the specifics of the appellant’s disclosures

as the agency apparently understood them or as the appellant later clarified and

expanded them when he forwarded the Form. ID at 22. Some of the specifics

include allegations that the agency engaged in improper timekeeping practices

and in removing the appellant from regular lead testing in 2010, and the ending of

regular lead testing resulted in the appellant’s elevated lead levels when tested in

2014. IAF, Tab 7 at 66-67, 77-80. As other examples of his disclosures, the

appellant also alleged that the agency manipulated position descriptions,

manpower, and the hiring process, and his second-level supervisor refused to

implement OSHA and military instructions. Id. at 66-67.

¶19 An initial decision must identify all material issues of fact and l aw,

summarize the evidence, resolve issues of credibility, and include the

11

administrative judge’s conclusions of law and her legal reasoning, as well as the

authorities on which that reasoning rests. Mastrullo v. Department of Labor,

123 M.S.P.R. 110, ¶ 14 (2015). Here, the administrative judge’s findings are

incomplete because she did not identify and analyze each of the alleg ed

disclosures at issue. Id. Further, her findings are unclear because, although she

generally found Board jurisdiction, she did not state whether she was finding the

appellant’s specific disclosures protected on the merits or at the jurisdictional

stage. Id. Therefore, we remand the appeal for these findings for a more

complete analysis. Id., ¶¶ 14, 27 (explaining that the administrative judge who

held a hearing is in the best position to make factual findings and detailed

credibility assessments on disputed factual issues).

¶20 In considering the appellant’s disclosures on remand, the administrative

judge should determine whether the appellant reasonably believed that his

disclosures evidenced any violation of any law, rule, or regulation, gross

mismanagement, a gross waste of funds, an abuse of authority, or a substantial

and specific danger to public health or safety. 5 U.S.C. §§ 1221(e)(1),

2302(b)(8)(A); Bradley, 123 M.S.P.R. 547, ¶ 7. The test for the reasonableness

of the appellant’s belief is whether a disinterested observer with knowledge of the

essential facts known to and readily ascertainable by the employee could

reasonably conclude that the disclosure evidenced one of the aforementioned

circumstances. Bradley, 123 M.S.P.R. 547, ¶ 7. Although the administrative

judge identified this test, she did not make finding s as to whether the appellant

believed his disclosures evidenced wrongdoing or the reasonableness of such

belief. ID at 3, 22.

¶21 Because the administrative judge did not make findings as to whether the

appellant proved that he reasonably believed his disclosures on the OPNAV

5100/11 were protected, she also must revisit her finding that the appellant’s

grievance alleging retaliation for the OPNAV 5100/11 was protected activity. ID

at 23; IAF, Tab 7 at 23. As mentioned above, to constitute protected activity

12

within the scope of the Board’s IRA jurisdiction, the grievance must seek to

remedy whistleblower reprisal. This includes the requirement that an appellant

prove that he reasonably believed his disclosures were protected. 6 See Bradley,

123 M.S.P.R. 547, ¶ 7. Without this finding, we cannot rule on the administrative

judge’s determination that the appellant’s grievance was protected activity. 7

We must vacate the administrative judge’s clear and convincing analysis.

¶22 If an appellant proves that his protected disclosure or activity was a

contributing factor in a personnel action that was taken or threatened, the agency

is given an opportunity to prove, by clear and convincing evidence, that it would

have taken or threatened the same personnel action in the absence of the protected

disclosure or activity. 5 U.S.C. § 1221(e)(1)-(2); Carr v. Social Security

Administration, 185 F.3d 1318, 1322-23 (Fed. Cir. 1999); see Salerno,

123 M.S.P.R. 230, ¶ 5. However, the Board may not proceed to the clear and

convincing evidence test unless it has first made a finding that the appellant

established his prima facie case. Clarke v. Department of Veterans Affairs,

121 M.S.P.R. 154, ¶ 19 n.10 (2014), aff’d per curiam, 623 F. App’x 1016 (Fed.

Cir. 2015). 8 Therefore, we must vacate the administrative judge ’s finding that the

6

After the issuance of the initial decision, Congress passed section 1097(c)(1) of the

National Defense Authorization Act (NDAA), Pub. L. No. 115-91, 131 Stat. 1283, 1618

(2017), which amended 5 U.S.C. § 2302(b)(9)(C) to provide protections for individuals

who cooperate or disclose information to “any other component responsible for internal

investigation or review.” However, as we found in Edwards v. Department of Labor,

2022 MSPB 9, ¶¶ 30-33, this statute does not apply to cases arising before the

enactment of the NDAA. Accordingly, we do not consider whether the appellant’s

safety complaints or grievance constitute protected activity under

section 2302(b)(9)(C).

7

The administrative judge’s well-reasoned finding that the appellant proved

contributing factor as to his removal, but not his nonselection, is not challenged by the

parties on review. ID at 23-24. However, because we are vacating the administrative

judge’s finding that the appellant made protected disclosures, we decline to review her

finding as to whether the disclosures contributed to the agency’s actions.

8

Although the U.S. Court of Appeals for the Seventh Circuit has questioned the

Board’s reasoning in its Clarke decision on other grounds, it did not have occasion to

13

agency met its burden to prove it would have removed the appellant absent his

protected disclosures and activity. We do not reach the appellant ’s arguments

that the administrative judge’s analysis was in error. PFR File, Tab 1 at 7-8,

10-13, 15, 18-21.

¶23 If the administrative judge again reaches this issue on remand, she should

consider not only the motives of the agency’s decision makers, such as the

deciding official, but also any motive on the part of other agency officials who

influenced the decision. Herman v. Department of Justice, 119 M.S.P.R. 642,

¶ 16 (2013). In addition, if she determines that the appellant ’s August 2014

grievance was protected activity, she should factor this activity into her analysis

of whether the agency met its burden. The administrative judge did not consider

this evidence in conducting her analysis of whether the agency met its burden. ID

at 28-30. Finally, she should consider whether the absence of any comparators is

evidence of retaliatory motive. 9 See Whitmore v. Department of Labor, 680 F.3d

1353, 1374 (Fed. Cir. 2012) (observing that an agency’s failure to come forward

with evidence as to comparators may be to its detriment).

ORDER

¶24 For the reasons discussed above, we remand this case to the Western

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

In her remand initial decision, the administrative judge may adopt , as appropriate,

her prior findings that the Board has jurisdiction over the appeal and that the

appellant failed to prove that he made any protected disclosures on May 30, 2014.

If she finds the appellant proved he made protected disclosures or that his

address this particular finding in Clarke. See Delgado v. Merit Systems Protection

Board, 880 F.3d 913, 924-25 (7th Cir. 2018) (questioning Clarke’s findings as to

whether an employee proved OSC exhaustion).

9

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.

14

grievance was a protected activity, she also may readopt the relevant findings that

the appellant met his burden to prove contributing factor.

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.