Nikesha Williams v. Department of Defense

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2023 MSPB 23

Docket No. PH-1221-18-0073-W-1

Nikesha Yvette Williams,

Appellant,

v.

Department of Defense,

Agency.

August 17, 2023

Nikesha Yvette Williams, Yorktown, Virginia, pro se.

Kimberly J. Lenoci, Hanscom Air Force Base, Massachusetts, for the

agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

OPINION AND ORDER

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

dismissed her individual right of action (IRA) appeal for lack of jurisdiction. For

the reasons discussed below, we GRANT the petition, REVERSE the initial

decision, and REMAND for adjudication on the merits.

BACKGROUND

¶2 On November 30, 2015, the appellant received an excepted -service

appointment to a Quality Assurance Specialist (QAS) (Electronics) position with

the Defense Contract Management Agency. Initial Appeal File (IAF), Tab 10

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at 6. Her official duty station was at the Raytheon facility in Andover,

Massachusetts. Id. As a QAS, her duties included “risk based surveillance” of

supplier quality systems and notifying contracting offices of deficient contract

and technical requirements. IAF, Tab 5 at 37-38.

¶3 Effective October 28, 2016, the agency terminated the appellant’s

employment during her probationary period based on alleged performance and

conduct issues. Id. at 55. The appellant subsequently filed a whistleblower

reprisal complaint with the Office of Special Counsel (OS C). IAF, Tab 1

at 18-44. In her complaint, she alleged that, in her role as QAS, she disclosed to

management various instances of nonconformance during inspections at

Raytheon, and that the agency terminated her employment in retaliation for those

disclosures. Id. On November 3, 2017, OSC informed the appellant that it was

closing its investigation into her complaint and advised her of her Board appeal

rights, noting that her disclosures were subject to a higher evidentiary burden and

citing 5 U.S.C. § 2302(f)(2). Id. at 138.

¶4 The appellant filed a timely IRA appeal and requested a hearing. IAF,

Tab 1 at 1-5. The administrative judge informed the appellant of her burden of

proof on jurisdiction and directed her to submit evidence and argument on the

issue. IAF, Tab 4. Both parties responded to the order. IAF, Tabs 11 -20.

¶5 In an initial decision dated February 2, 2018, the administrative judge

dismissed the appeal for lack of jurisdiction without conducting the appellant’s

requested hearing. IAF, Tab 21, Initial Decision (ID). The administrative judge

found that the appellant had exhausted her administrative remedies with OSC

concerning six alleged protected disclosures. ID at 4. He furth er found that the

appellant nonfrivolously alleged that she reasonably believed two of those

disclosures evidenced a violation of law, rule, or regulation, specifically, the

Federal Acquisition Regulations. ID at 4-9; see 5 U.S.C. § 2302(b)(8)(A)(i). In

addition, he found that the appellant made a nonfrivolous allegation that those

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two disclosures were a contributing factor in her probationary termination. ID

at 9-10.

¶6 However, the administrative judge further found that the appellant’s

disclosures, which were made in the normal course of her duties, fell within the

scope of 5 U.S.C. § 2302(f)(2), and would be excluded from protection under

section 2302(b)(8) absent a showing that the agency took, failed to take, or

threatened to take or fail to take a personnel action “in reprisal” for those

disclosures. 1 ID at 11. The administrative judge further reasoned that, in order to

establish jurisdiction under these circumstances, the appellant was required to

make a nonfrivolous allegation that the agency terminated her with an improper

retaliatory motive. ID at 11-12. He concluded that the appellant failed to make

such a nonfrivolous allegation, and thus failed to establish jurisdiction over her

appeal. ID at 12-13.

¶7 The appellant filed a timely petition for review, in which she argues that the

administrative judge erred in finding that she failed to nonfrivolously allege an

improper retaliatory motive. Petition for Review (PFR) File, Tab 1. The agency

has filed a response. PFR File, Tab 3.

ANALYSIS

Section 2302(f)(2) does not limit the Board’s IRA jurisdiction.

¶8 It is well settled that the Board has jurisdiction over an IRA appeal if the

appellant has exhausted her administrative remedies before OSC and makes

nonfrivolous allegations 2 that (1) she made a protected disclosure described under

1

Lacking the benefit of the Board’s subsequent decision in Salazar v. Department of

Veterans Affairs, 2022 MSPB 42, the administrative judge did not address whether the

appellant’s principal job function was to investigate and report wrongdoing.

2

The Board’s regulation at 5 C.F.R. § 1201.4(s) defines a “nonfrivolous allegation” as

“an assertion that, if proven, could establish the matter at issue” and specifies that an

allegation generally will be considered nonfrivolous when, under oath or penalty of

perjury, an individual makes an allegation that: (1) is more than conclusory; (2) is

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

§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity

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

personnel action as defined under 5 U.S.C. § 2302(a). Smolinski v. Merit Systems

Protection Board, 23 F.4th 1345, 1350 (Fed. Cir. 2022); Salerno v. Department of

the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). Once an appellant establishes

jurisdiction over her IRA appeal, she is entitled to a hearing on the merits of her

claim, which she must prove by preponderant evidence. Salerno, 123 M.S.P.R.

230, ¶ 5.

¶9 In dismissing this appeal for lack of jurisdiction, the administrative judge

assumed that in order for the appellant to nonfrivolously allege that her

disclosures were protected under 5 U.S.C. § 2302(b)(8), she also had to make a

nonfrivolous allegation that her disclosures were not excluded from protection by

operation of 5 U.S.C. § 2302(f)(2). For the reasons discussed below, we find that

5 U.S.C. § 2302(f)(2) does not impose an additional jurisdictional requirement,

but rather should be considered during the merits phase of adjudication .

¶10 The current version of 5 U.S.C. § 2302(f)(2), which specifically addresses

disclosures made in an employee’s normal course of duties, provides:

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

employee, the principal job function of whom is to regularly

investigate and disclose wrongdoing (referred to in this paragraph as

the “disclosing employee”), the disclosure shall not be excluded

from subsection (b)(8) if the disclosing employee demonstrates that

an employee who has the authority to take, direct other individuals to

take, recommend, or approve any personnel action with resp ect to the

disclosing employee took, failed to take, or threatened to take or fail

plausible on its face; and (3) is material to the legal issues in the appeal. For purposes

of determining IRA jurisdiction, “the question of whether the appellant has

non-frivolously alleged protected disclosures that contributed to a personnel action

must be determined based on whether the employee alleged sufficient factual matter,

accepted as true, to state a claim that is plausible on its face.” Hessami v. Merit

Systems Protection Board, 979 F.3d 1362, 1369 (Fed. Cir. 2020).

5

to take a personnel action with respect to the disclosing employee in

reprisal for the disclosure made by the disclosing employee. 3

The Whistleblower Protection Enhancement Act of 2012 (WPEA) first introduced

the statutory language in 5 U.S.C. § 2302(f)(2) that a disclosure made in the

normal course of duties is protected if the agency “took, failed to take, or

threatened to take or fail to take a personnel action with respect to ” an employee

“in reprisal for the disclosure.” Pub. L. No. 112-199, § 101(b)(2)(C), 126 Stat.

1465, 1466 (2012). The legislative history of the WPEA makes clear that this

language was intended as an “extra proof requirement,” such that an employee

must “show not only that the agency took the personnel action ‘because of’ the

disclosure, but also that the agency took the action with an improper, retaliat ory

motive.” S. Rep. No. 112-155, at 5-6 (2012), as reprinted in 2012 U.S.C.C.A.N.

589, 593-94; see also S. Rep. No. 115-74, at 8 (2017) (explaining that the 2018

NDAA amendment clarifies that a disclosure within the scope of

section 2302(f)(2) will not be excluded from whistleblower protection laws “if

the employee can demonstrate that a personnel action taken against him or her

was in reprisal for a disclosure”).

¶11 However, we find nothing in the language of 5 U.S.C. § 2302(f)(2) or its

legislative history to suggest that Congress intended for the extra proof

requirement to limit the scope of the Board’s IRA jurisdiction , which only

requires a nonfrivolous allegation that a disclosure or activity is protected and

was a contributing factor in a personnel action. Rather, the use of the term

“demonstrates” in the statute indicates that this is a merits consideration.

“Demonstrate” is defined as “to show clearly,” and “to prove or make clear by

3

This version of 5 U.S.C. § 2302(f)(2) was enacted in December 2017 as part of the

National Defense Authorization Act for Fiscal Year 2018 (2018 NDAA), prior to the

relevant events in this matter. Pub. L. No. 115-91, § 1097(c)(1)(B)(ii), 131 Stat. 1283,

1618 (2017). However, the Board has held that this version of 5 U.S.C. § 2302(f)(2)

applies retroactively because the changes made to the statute by the 2018 NDAA merely

clarified the existing law. Salazar, 2022 MSPB 42, ¶¶ 13-21.

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reasoning or evidence.” Merriam-Webster’s Collegiate Dictionary 307 (10th ed.

2002). Furthermore, the word “demonstrates” in 5 U.S.C. § 2302(f)(2) is the

same term used in 5 U.S.C. § 1221(e)(1), which describes the employee’s burden

of proof on the merits of a claim under 5 U.S.C. § 2302(b)(8) or (b)(9). See

5 U.S.C. § 1221(e)(1) (providing that the Board shall order corrective action if

the appellant “has demonstrated” that a protected disclosure or activity was a

contributing factor in the contested personnel action); Watson v. Department of

Justice, 64 F.3d 1524, 1527-28 (Fed. Cir. 1995) (equating “demonstrates” in

section 1221(e)(1) with “proves”). Generally, “[a] word or phrase is presumed to

bear the same meaning throughout a text.” Intel Corporation v. Qualcomm

Incorporated, 21 F.4th 784, 793 (Fed. Cir. 2021) (quoting Antonin Scalia &

Bryan A. Garner, Reading Law, 170 (2012)); see also Gustafson v. Alloyd

Company, 513 U.S. 561, 568 (1995) (“In seeking to interpret the term

‘prospectus,’ we adopt the premise that the term should be construed, if possible,

to give it a consistent meaning throughout the Act. That principle follows from

our duty to construe statutes, not isolated provisions.”). We therefore conclude

that for purposes of 5 U.S.C. § 2302(f)(2), to “demonstrate” means to prove by a

preponderance of the evidence. 4 See Langer v. Department of the Treasury,

265 F.3d 1259, 1264-65 (Fed. Cir. 2001) (explaining that an appellant in an IRA

appeal must prove his prima facie case by preponderant evidence ).

¶12 Under the whistleblower protection statutes, “whether [an] allegation can be

proven is a question on the merits that does not properly form a part of the

4

The courts have similarly found that the term “demonstrate,” as used in other

whistleblower protection statutes, entails proof by a preponderance of the evidence.

See Allen v. Administrative Review Board, 514 F.3d 468, 476 n.1 (5th Cir. 2008)

(interpreting “demonstrates” in the whistleblower protection provision of the

Sarbanes-Oxley Act, 18 U.S.C. § 1514A, as requiring proof by preponderant evidence);

Dysert v. U.S. Secretary of Labor, 105 F.3d 607, 609-10 (11th Cir. 1997) (interpreting

“demonstrate” in a whistleblower protection provision of the Energy Reorganization

Act, 42 U.S.C. § 5851, as requiring proof by preponderant evidence).

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jurisdictional inquiry.” Johnston v. Merit Systems Protection Board, 518 F.3d

905, 911 (Fed. Cir. 2008) (emphasis added) (quoting Reid v. Merit Systems

Protection Board, 508 F.3d 674, 678 (Fed. Cir. 2007)). The requirement of proof

by preponderant evidence implies a weighing of all relevant and competent

evidence, which can be accomplished only after development of the record,

including a hearing if one has been requested. 5 C.F.R. § 1201.4(q) (defining

“preponderance of the 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); see Chiles v.

Bowen, 695 F. Supp. 357, 360 (S.D. Ohio 1988) (“[T]he preponderance of the

evidence standard necessarily involves the consideration of the evidence both in

support of and contrary to a proposition and the weighing of each to determine

which represents the preponderance; this standard requires that all the evidence

be examined in relation to the other to determine the balance.”) (emphasis in

original). Accordingly, we conclude that the potential applicability of 5 U.S.C.

§ 2302(f)(2) is not part of the jurisdictional analysis in an IRA appeal.

The appeal is remanded for adjudication on the merits.

¶13 As noted above, the administrative judge found that the appellant proved

by preponderant evidence that she exhausted her remedies with OSC, and made

nonfrivolous allegations that two of her disclosures were protected under

section 2302(b)(8) and were a contributing factor in her probationary termination.

We discern no error in those findings, and the parties do not contest them on

review. Accordingly, we conclude that the Board has jurisdiction over this

appeal, and that the appellant is entitled to a hearing on the merits of her claim.

Salerno, 123 M.S.P.R. 230, ¶ 5.

¶14 On remand, the appellant must demonstrate by a preponderance of the

evidence that her disclosures were protected under 5 U.S.C. § 2302(b)(8) and that

they were a contributing factor in the contested personnel action. 5 U.S.C.

§ 1221(e)(1). If the appellant’s principal job function was to regularly investigate

8

and disclose wrongdoing and she made her disclosures in the normal course of her

duties, to establish that her disclosures were protected, the appellant must also

prove that the agency had an improper, retaliatory motive for terminating her.

5 U.S.C. § 2302(f)(2); S. Rep. No. 112-155, at 5-6.

¶15 In conducting that analysis, the administrative judge should first determine

whether: (1) the appellant’s primary job function at the time of the disclosure

was to investigate and disclose wrongdoing; and (2) the disclosure was made in

the normal course of the appellant’s duties. The administrative judge may

consider these questions in whichever order is more efficient, and the parties

should be provided an opportunity to submit relevant evidence and argument. If

either condition is unsatisfied, then section 2302(f)(2) does not apply, and the

appellant’s disclosures would fall under the generally applicable 5 U.S.C.

§ 2302(b)(8). Salazar v. Department of Veterans Affairs, 2022 MSPB 42, ¶ 22.

¶16 If conditions (1) and (2) are both satisfied, the administrative judge should

next determine whether the appellant can meet her additional burden under

section 2302(f)(2) by demonstrating that the agency took the contested personnel

action “in reprisal” for her disclosures. In doing so, the administrative judge

should consider the totality of the evidence. 5 C.F.R. § 1201.4(q) (stating that the

record as a whole should be considered when determining whether a party has

met the preponderance of the evidence standard); see Whitmore v. Department of

Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012) (“It is error for the MSPB to not

evaluate all the pertinent evidence in determining whether an element of a claim

or defense has been proven adequately.”). In addition to any direct evidence of

retaliatory animus, the administrative judge should consider circumstantial

evidence, including the following factors: (1) whether the agency officials

responsible for taking the personnel action knew of the disclosures and the

personnel action occurred within a period of time such that a reasonable person

could conclude that the disclosures were in reprisal for the personnel action;

(2) the strength or weakness of the agency’s reasons for taking the personnel

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action; (3) whether the disclosures were personally directed at the agency

officials responsible for taking the action; (4) whether the acting officials had a

desire or motive to retaliate against the appellant; and (5) whether the agency

took similar personnel actions against similarly situated employees who had not

made disclosures. See 5 U.S.C. § 1221(e)(1) (explaining that an individual can

prove that her disclosure was a contributing factor in a personnel action through

circumstantial evidence, including the knowledge/timing test); Carr v. Social

Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999) (setting forth the

factors for determining whether an agency has met its clear and convincing

burden); Rumsey v. Department of Justice, 120 M.S.P.R. 259, ¶ 26 (2013) (listing

factors to be considered in determining whether an appellant has demonstrated

contributing factor where the knowledge/timing test has not been satisfied ).

ORDER

¶17 We remand this appeal to the regional office for further adjudication

consistent with this Opinion and Order.

FOR THE BOARD:

/s/

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.