# John Lyons v. Department of the Navy

> Merit Systems Protection Board · June 29, 2023

URL: https://www.frixlaw.com/law-library/cases/9406176

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** June 29, 2023
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9406176

## How later opinions describe it (automated extraction)

- observing that an agency’s failure to come forward with evidence as to comparators may be to its detriment

## Opinion text

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THIS ORDER IS NONPRECEDENTIAL 1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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9406176. Public record. Not legal advice.