Sara Giachetti v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SARA M. GIACHETTI, DOCKET NUMBER

Appellant, DC-1221-19-0101-W-3

v.

DEPARTMENT OF VETERANS DATE: August 18, 2023

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Dominick D. Schumacher, Esquire, and Kristin D. Alden, Esquire,

Washington, D.C., for the appellant.

Christine Beam, Esquire, and Jillian Barry, Esquire, Pittsburgh,

Pennsylvania, for the agency.

Stephen Butera, Esquire, Clarksburg, West Virginia, 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 initial decision, which

found that she failed to establish a prima facie case of whistleblower reprisal in

1

A nonprecedential order is one that the Board has determi ned does not add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 Parties may cite nonprecedential orders,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

her individual right of action (IRA) appeal. For the reasons discussed below, we

GRANT the appellant’s petition for review and REVERSE the initial decision to

find that the appellant made a prima facie case of whistleblower reprisal and also

find that the agency failed to prove by clear and convincing evidence that it

would have taken one of the personnel actions in the absence of the appellant’s

protected disclosure. The appellant is granted corrective action .

BACKGROUND

¶2 The appellant is currently employed as the Director of Logistics, GS-15, at

the agency’s Office of Acquisition, Logistics, and Construction (OALC) in

Washington, D.C. Giachetti v. Department of Veterans Affairs, MSPB Docket

No. DC-1221-19-0101-W-1, Initial Appeal File (IAF), Tab 1 at 1. At the time

relevant to this appeal, the appellant served as the Director of Acquisition

Business Service (ABS). Giachetti v. Department of Veterans Affairs, MSPB

Docket No. DC-1221-19-0101-W-3, Appeal File (W-3 AF), Tab 1 at 10. In that

position, the appellant’s first-level supervisor was the Executive Director of the

Office of Acquisition Operations (OAO), and her second-level supervisor was the

Acting Chief Acquisition Officer. IAF, Tab 5 at 6; W-3 AF, Tab 16 at 4, 10.

¶3 On January 26, 2018, the appellant filed a complaint with the Office of

Special Counsel (OSC) asserting that, in reprisal for making four disclosures

concerning the Executive Director, as detailed below, the agency took a series of

personnel actions against her. IAF, Tab 1 at 14-49. On August 30, 2018, OSC

closed its file in the matter and informed the appellant of her right to seek

corrective action from the Board. Id. at 50.

¶4 Thereafter, the appellant filed the instant IRA appeal wherein she asserted

the same arguments made before OSC. IAF, Tab 1 at 6-49. Specifically, in her

IRA appeal, she alleged: (1) in or about April 2015, she disclosed to the

Executive Director and later to the Acting Chief Acquisition Officer that the

Executive Director violated the Anti-Deficiency Act, other fiscal and acquisition

3

laws, and the Federal Acquisition Regulations (FAR) when she approved the

ratification of unauthorized commitments (UCs); 2 (2) in 2015, she disclosed to the

Executive Director and the Acting Chief Acquisition Officer that the agency

issued orders in excess of $25 million without “policy or legal review” in

violation of FAR 1.602-2(c); (3) on July 1, 2015, she disclosed to the Acting

Chief Acquisition Officer that the Executive Director and the Director of the

Strategic Acquisition Center (SAC) provided false information in a response to a

Congressional inquiry; and (4) on September 8, 2015, she disclosed to the

Executive Director an “unlawful approval of an improper acq uisition.” IAF,

Tab 1 at 7, Tab 20 at 1-2; W-3 AF, Tab 10 at 34-69. She further alleged that, in

reprisal for making these disclosures, the agency took a series of personnel

actions against her, including denying her a promotion in 2015, not selecting her

for two other positions for which she applied in 2016, giving her unjustifiably

low evaluations in 2015 and 2016, denying a grievance of her 2015 performance

evaluation, denying her an opportunity to complete the Senior Executive Service

Candidate Development Program (SESCDP), and subjecting her to a hostile work

environment. IAF, Tab 1 at 8-11, Tab 20 at 3-4.

¶5 After finding that the Board has jurisdiction over the appellant’s claims,

IAF, Tab 20, the administrative judge issued an initial decision on the written

record, 3 W-3 AF, Tab 21, Initial Decision (ID). He found that the appellant fail ed

to prove by preponderant evidence that any of her four disclosures were protected

under 5 U.S.C. § 2302(b)(8) either because they concerned policy disputes or

because the appellant failed to prove that she had a reasonable belief that her

2

According to the appellant, an “unauthorized commitment” is an agreement for the

provision of goods or services that is not binding solely because the Government

representative who made it lacked the authority to enter into that agreement on behalf

of the Government. W-1 AF, Tab 1 at 15.

3

Although the appellant initially requested a hearing, W -1 AF, Tab 1 at 12, she later

withdrew that request, Giachetti v. Department of Veterans Affairs, MSPB Docket

No. DC-1221-19-0101-W-2 Appeal File, Tab 5.

4

disclosures evidenced any of the sort of wrongdoing contemplated by

section 2302(b)(8)(A). ID at 8-23. He further concluded that the appellant failed

to prove that she made protected disclosures that were a co ntributing factor to any

personnel action and thus denied her request for corrective action. ID at 23.

¶6 The appellant then filed a petition for review. Petition for Review (PFR)

File, Tab 5. Therein, she argues that the administrative judge inappropria tely

gave her statements less weight than those of agency officials because he

erroneously believed that she did not submit a sworn declaration. Id. at 25. She

also argues that he erred in concluding that disclosures one, two and three were

not protected under 5 U.S.C. § 2302(b)(8). 4 Id. at 24-31. The appellant also

reasserts that the agency took the above-outlined personnel actions against her

and that the disclosures were a contributing factor to those personnel actions. Id.

at 31-32. The agency has filed a response to the appellant’s petition for review,

to which the appellant has replied. PFR File, Tabs 7-8.

DISCUSSION OF ARGUMENTS ON REVIEW

¶7 In an IRA appeal, the appellant bears the burden of establishing a prima

facie case of whistleblower retaliation. Lu v. Department of Homeland Security,

122 M.S.P.R. 335, ¶ 7 (2015). To meet that burden, an appellant must prove, by

preponderant evidence, that she made a protected disclosure under 5 U.S.C.

§ 2302(b)(8) and that the disclosure was a contributing factor in a personnel

action taken against her. 5 U.S.C. § 1221(e)(1); Lu, 122 M.S.P.R. 335, ¶ 7. If an

appellant does so, the agency is then given an opportunity to prove, by clear and

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

absence of the protected disclosure. 5 U.S.C. § 1221(e)(1)-(2); Lu, 122 M.S.P.R.

335, ¶ 7.

4

The appellant concedes on review that her fourth disclosure involved a policy dispute,

and therefore, does not challenge the administrative judge’s conclusion that she failed

to prove that the disclosure was protected under 5 U.S.C. § 2302(b)(8). PFR File, Tab 5

at 25 n.8. Accordingly, we will not consider that fourth disclosure here.

5

¶8 As explained below, we agree with the administrative judge that the

appellant failed to prove that disclosures 2 and 3 were protected under 5 U.S.C.

§ 2302(b)(8). ID at 14-18. However, we find that the appellant proved by

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

§ 2302(b)(8) when she made her first disclosure regarding the ratification of the

UCs. Because the record was fully developed below, we have also considered

whether the appellant proved by preponderant evidence that her protected

disclosure was a contributing factor to the alleged personnel actions. See, e.g.,

Forte v. Department of the Navy, 123 M.S.P.R. 124, ¶ 27 (2016) (finding that the

Board may decide an issue on review, rather than remanding, when the

administrative judge applied an incorrect standard but the record was fully

developed). We also find that the appellant has shown by preponderant evidence

that her protected disclosure was a contributing factor to her 2015 and 2016

performance appraisals and to the significant change in her duties,

responsibilities, and working conditions.

The appellant proved by preponderant evidence that she made a protected

disclosure under 5 U.S.C. § 2302(b)(8).

¶9 A protected disclosure is a disclosure 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). A reasonable belief exists if a

disinterested observer with knowledge of the essential facts known to and readily

ascertainable by the appellant could reasonably conclude that the actions of the

Government evidence one of the categories of wrongdoing listed in

section 2302(b)(8)(A). Chavez, 120 M.S.P.R. 285, ¶ 18. The appellant need not

prove that the matter disclosed actually established one of the types of

wrongdoing listed under section 2302(b)(8)(A); rather, she must only show that

6

the matter disclosed was one which a reasonable person in her position would

believe evidenced any of the situations specified in section 2302(b)(8)(A). Id.

Disclosure 1: The appellant proved by preponderant evidence that her

disclosure regarding the unlawful ratification of the UCs is protected

under 5 U.S.C. § 2302(b)(8)(A).

¶10 The appellant asserted that, in or around April 2015, she disclosed to the

Executive Director and later to the Acting Chief Acquisition Officer that the

Executive Director violated the Anti-Deficiency Act, other fiscal and acquisition

laws, and the FAR when she approved the ratification of prior UCs. W -3 AF,

Tab 10 at 7, 37.

¶11 In her final brief and submission to OSC, the appellant explained that the

agency’s Office of Inspector General (OIG) conducted an administrative

investigation into the agency’s expenditures related to its July and August 2011

conferences. Id. at 8, 37. The OIG found numerous excessive and unnecessary

costs and determined that several of these acquisitions were made by personnel

lacking authority to obligate the Government to pay them, otherwise known as

UCs. W-3 AF, Tab 11. Regarding a certain category of UCs, the OIG

recommended that “the VA Secretary take action to ratify any legal agreements

made by VA employees where there was no previous authority to commit

payments.” Id. at 67. OALC responded to the recommendation by stating that

the FAR provides clear guidance for the processing of ratifications; however,

whether the expenditures in question are ratifiable is subject to the determination

by the appropriate Head of Contracting Activity (HCA), subject to advice from a

contracting officer and legal review. W-3 AF, Tab 13 at 21.

¶12 On January 29, 2013, the then-HCA reported to the OIG that review of the

UCs revealed that they did not meet legal requirements for ratification “due to

noncompliance with [the] FAR,” and that the individuals responsible for the UCs

would be held pecuniarily liable. W-3 AF, Tab 10 at 9, Tab 13 at 21. According

to the appellant, sometime later, agency officials again submitted th e UCs for

7

ratification and a new HCA again determined that the UCs were not ratifiable.

W-3 AF, Tab 10 at 9. After the second HCA departed from the position, the

agency again submitted the same requests for ratification a third time, which fell

to the then-HCA, who is the current Executive Director in the instant appeal. Id.

In her role as the HCA at the time, sometime in May of 2014, the current

Executive Director also determined that the UCs were not ratifiable. Id.;

W-3 AF, Tab 14 at 8-11. According to the appellant, shortly after this third

determination was made, the Executive Director sent the UCs to the SAC

Director, who ratified the UCs, and the Executive Director approved the

ratification on May 6, 2014, despite her earlier assertion that such ratification was

against the FAR. W-3 AF, Tab 10 at 10. The appellant asserted that, once she

learned of the ratification, she met with the Executive Director in April of 2015 to

express her concerns over the legality of the ratifications and expressed similar

concerns to the Acting Chief Acquisition Officer in July of 2015. Id. at 7, 12.

¶13 In the initial decision, the administrative judge stated that the appellant

failed to submit a sworn affidavit and that the “only source for her version of

events is the material she presented to OSC.” ID at 9. Conversely, he relied

substantially on sworn affidavits from the Executive Director and the Acting

Chief Acquisition Officer and concluded that the appellant’s disclosure “points to

her disagreement with the agency’s choice of remedy to correct problems

identified years earlier in the IG report,” and that here, “persons senior to the

appellant held a different view about how to proceed.” ID at 13 -14. He also

stated that a protected disclosure must be “specific and detailed, [and] not vague

allegations of wrongdoing regarding broad or imprecise matters,” and concluded

that the appellant’s disclosure “lacked specificity” because it was not clear which

of the ratifications from the OIG she claimed were illegal. ID at 13 (quoting

Rzucidlo v. Department of the Army, 101 M.S.P.R. 616, ¶ 13 (2006)). As such, he

found that the appellant failed to prove by preponderant evidence that this

disclosure was protected under section 2302(b)(8)(A). ID at 13-14.

8

¶14 On review, the appellant argues that the administrative judge erred in

stating that she failed to submit a sworn statement, and therefore, asserts that he

did not give her version of events proper weight. PFR File, Tab 5 at 25. She also

claims that, had he given her statements proper weight, they would have provided

the detail and specificity sufficient for the disclosure to be regarded as protected.

Id. at 25-27. Additionally, she again asserts that she reasonably believed that her

disclosure evidenced a violation of law, rule, or regulation, and therefore, that it

is protected under section 2302(b)(8). Id.

¶15 We agree with the appellant. The appellant clearly indicated in her final

brief that the statements made in her pleading and the accompanying narrative

submitted to OSC were made under the penalty of perjury and are true and correct

to the best of her personal information, knowledge, and belief. W-3 AF, Tab 10

at 32. Such a statement carries evidentiary weight and, when credible, can be

sufficient to establish the facts asserted therein. See Donato v. Department of

Defense, 34 M.S.P.R. 385, 389 (1987) (stating that an unsworn statement made

under penalty of perjury is the equivalent to an affidavit under 28 U.S.C. § 1746

and finding that an administrative judge erred in assigning less probative value to

such a statement); see generally Willingham v. Department of the Navy,

118 M.S.P.R. 21, ¶ 7 (2012) (explaining that a statement made under penalty of

perjury, if not inherently incredible and not disputed or rebutted by the other

party, proves the facts it asserts), appeal dismissed per curiam, 526 F. App’x 975

(Fed. Cir. 2013). Moreover, both the Executive Director and the Acting Chief

Acquisition Officer admitted that they recalled speaking with the appellant

regarding her concern over the UCs. W-3 AF, Tab 16 at 4-5, 11.

¶16 Regarding the substance of the disclosure, the appellant alleged, with record

support and without agency dispute, that at least three other individuals expressed

concern over the legality of the ratifications of the UCs. W-3 AF, Tab 10 at 9,

Tab 13 at 21, Tab 14 at 5-6, 8-11. This shared belief, combined with the

appellant’s 29 years of experience in the acquisition field, leads us to find that

9

she has demonstrated that her belief that the ratification of the UCs violated law,

rule, or regulation was a reasonable one. W-3 AF, Tab 10 at 38; see Schlosser v.

Department of the Interior, 75 M.S.P.R. 15, 21 (1997) (concluding that an

appellant can establish a reasonable belief that he made a protected disclosure by

showing that he was familiar with the alleged illegal conduct and was therefore in

a position to form such belief, and that his belief was shared b y other similarly

situated employees). Accordingly, we find that the appellant proved by

preponderant evidence that this disclosure is protected under 5 U.S.C.

§ 2302(b)(8)(A). See Reid v. Merit Systems Protection Board, 508 F.3d 674, 676,

678 (Fed. Cir. 2007) (concluding that a disclosure of a potential violation of the

FAR can constitute a protected disclosure).

Disclosure 2: The administrative judge correctly found that the appellant

failed to prove by preponderant evidence that her disclosure regarding the

agency’s issuance of orders in excess of $25 million without policy or legal

review in violation of the FAR was protected under 5 U.S.C.

§ 2302(b)(8)(A).

¶17 In the appellant’s second alleged protected disclosure, she claimed that, in

June of 2015, she disclosed to the Executive Director that the agency is sued

orders, by way of an invalid type of contract, in excess of $25 million without

policy or legal review in violation of the FAR. W-3 AF, Tab 10 at 13-14.

Specifically, she asserted that the Executive Director asked her for potential

approaches to acquiring medical/surgical supplies and sent the appellant a

memorandum “requesting a single-award indefinite-delivery, indefinite-quantity

requirements type contract” for such an acquisition. Id. at 13. The appellant

asserted that there “is no such contract type.” Id. She further asserted that, based

on that invalid type of contract, the Executive Director authorized the issuance of

orders exceeding $25 million without policy or legal review , which she claimed

was in violation of FAR 1.602-2(c). Id. at 14. FAR 1.602-2(c) provides that

contracting officers “shall [r]equest and consider the advice of specialists in

audit, law, engineering, information security, transportation, and other fields, as

10

appropriate.” 48 C.F.R. § 1.602-2(c). The appellant asserted that “no reasonable

person with a modicum of knowledge about [F]ederal contract law would

consider it appropriate to waive audit and/or legal review of acquisitions

exceeding $25 million.” W-3 AF, Tab 10 at 14.

¶18 In the initial decision, the administrative judge appears to have only

addressed the portion of the appellant’s disclosure that dealt with the type of

contract the Executive Director asked the appellant to draft. ID at 17-18. He

disagreed with the appellant’s assertion that the type of contract was not a valid

contract type because the FAR permits both single award and multiple -award

indefinite-delivery indefinite-quantity (IDIQ) contracts. ID at 18 (referencing

FAR part 16). The administrative judge found that the appellant’s contention to

the contrary “undermines [his] ability to find that a disinterested observer with

knowledge of the essential facts known to and readily ascertainable by the

employee could reasonably conclude that she identified [G]overnment actions that

violate 5 U.S.C. § 2302(b)(8)(A).” Id. As such, the administrative judge found

that the appellant failed to present preponderant evidence that she had a

reasonable belief in her disclosure that the IDIQ contract was not an authorized

type of contract or that it lacked proper review. Id.

¶19 On review, the appellant claims that the administrative judge

“fundamentally misunderstood” the contract the Executive Director asked the

appellant to create by failing “to grasp the differences between requirements

contracts and IDIQ contracts, which complicates the single award/multiple award

analysis.” PFR File, Tab 5 at 28-29 (emphasis in original). She asserts that,

although the FAR recognizes IDIQ contracts and requirements contracts, it does

not provide for a single-award contract that has characteristics of both. Id. She

claims that a requirements contract is generally granted to a single contractor and

that an IDIQ contract is generally granted in multiple awards but that the

“single-award indefinite-delivery, indefinite quantity requirements type contract”

desired by the Executive Director is not contemplated by the FAR. Id. She

11

reiterates that she believes such a contract is unlawful and that the Executive

Director sought to waive the requirement for legal review of actions up to

$25 million. Id.

¶20 Although the appellant is correct that the initial decision did not discuss the

nuances between the two types of indefinite-delivery contracts—an IDIQ contract

and a requirements contract—we nonetheless agree with the administrative

judge’s conclusion that the appellant failed to prove that she had a reasonable

belief in the alleged illegality of the above-described contract. ID at 17-18. The

crux of the appellant’s challenge to the legality of the contract appears to be that

the FAR does not provide for a single-award IDIQ contract, and that a

single-award contract is typically a requirements contract. PFR File, Tab 5

at 28-29. However, the FAR provision governing IDIQ contracts makes clear

that, although a contracting officer must “give preference to making multiple

awards of indefinite-quantity contracts,” 48 C.F.R. § 16.504(c)(1)(i), it

nonetheless contemplates single-award IDIQ contracts and provides an

enumerated list of considerations for determining the number of cont racts to be

awarded, 48 C.F.R. § 16.504(c)(1)(ii)(A). Additionally, it provides circumstances

in which multiple-award IDIQ contracts must not be awarded, indicating that in

some circumstances, single-award IDIQ contracts are appropriate. 48 C.F.R.

§ 16.504(c)(1)(ii)(B). Thus, the plain language of the FAR itself provides for the

very type of contract, even if rare, that the appellant asserts is unlawful.

Therefore, given this plain language, we ultimately agree with the administrative

judge that no reasonable person—particularly one with the appellant’s

self-described expertise in procurement—would conclude that the type of contract

requested by the Executive Director evidenced a violation law, rule, or regulation.

¶21 Turning to the question of whether the appellant had a reasonable belief that

the contract illegally lacked proper review, we rely on the plain lan guage of the

relevant FAR provision. The appellant asserted that the agency violated

FAR 1.602-2, which provides that “[c]ontracting officers shall [r]equest and

12

consider the advice of specialists in audit, law, engineering, information security,

transportation, and other fields, as appropriate.” 48 C.F.R. § 1.602-2(c).

However, she has not shown that the substance of the contract required the advice

of specialists. The plain language of the regulation explains that such request and

consideration shall be sought “as appropriate.” 48 C.F.R. § 1.602-2(c). Thus,

here, it appears that the appellant believed that, under the circumstances, such

consideration and advice was appropriate, while the contracting officer apparently

did not. Such policy disputes are not covered as protected disc losures. See Webb

v. Department of the Interior, 122 M.S.P.R. 248, ¶ 8 (2015) (stating that general

philosophical or policy disagreements with agency decisions or actions are not

protected unless they separately constitute a disclosure of one of the categories of

wrongdoing listed in section 2302(b)(8)(A)). As such, we find that the

appellant’s second disclosure is not protected under 5 U.S.C. § 2302(b)(8).

Disclosure 3: The administrative judge correctly found that the appellant

failed to prove by preponderant evidence that her disclosure regarding the

alleged false information provided to Congress was protected under

section 2302(b)(8)(A).

¶22 In the appellant’s third alleged disclosure, she claimed that, on July 1, 2015,

she told the Acting Chief Acquisition Officer that the Executive Director and the

SAC Director provided false information in response to a Congressional inquiry.

W-3 AF, Tab 10 at 14. Specifically, the appellant asserted that, in June 2015, the

Executive Director tasked her with preparing the agency’s response to a

Congressional inquiry that required a list of all positions for which contract

employees are used in any phase of the contracting process. Id. at 15. Several

agency employees determined that they needed to report that OAO employed four

contract employees. Id. at 43; IAF, Tab 9 at 16. According to the appellant, the

Executive Director later told the appellant that she and the SAC Director did not

want to report the use of any contract employees, and she removed the appellant

from the task. W-3 AF, Tab 10 at 15, 43. On September 11, 2015, the agency

generated a memorandum in response to the Congressional inquiry, which stated

13

that OAO does “not use contractor employees in contract management and

oversight roles.” IAF, Tab 9 at 28. According to the appellant, when she met

with the Acting Chief Acquisition Officer on July 1, 2015, she disclosed that the

Executive Director provided false information to Congress. W-3 AF, Tab 10

at 16, 44.

¶23 Below, the administrative judge considered the appellant’s version of events

as set forth above, and also considered the Executive Director’s statements that

she did not recall telling the appellant not to provide accurate information about

contract employees to Congress, and that, regarding the memorandum submitted

to Congress, she had had back surgery that summer and was out on sick leave for

8 weeks, only returning to work on September 16, 2015 —5 days after the

memorandum was issued. ID at 15; W-3 AF, Tab 16 at 5. The administrative

judge also considered the Executive Director’s assertion that the memorandum

was drafted by someone else and that, although the signature on the memorandum

purported to be hers, she did not recognize it. ID at 15; W-3 AF, Tab 16 at 5.

Based on the foregoing, he found that the appellant failed to present preponderant

evidence that she had a reasonable belief in the disclosure that the Executive

Director lied to Congress. ID at 15-16.

¶24 On review, the appellant appears to attempt to reframe the disclosure from

claiming, as she did below, that she disclosed that the Executive Director and the

SAC Director provided false information to Congress, to claiming that she

disclosed that those two officials were “preparing to make a false report to

Congress.” PFR File, Tab 5 at 29 (emphasis added). The record below, however,

is clear about the substance of the appellant’s allegation. In her final brief, she

asserted that she notified the Acting Chief Acquisition Officer that the Executive

Director and the SAC Director “provided false information in response to a

Congressional inquiry.” W-3 AF, Tab 10 at 14. Her narrative details the

situation leading up to the issuance of the memorand um, and further alleges that

in her July 1, 2015 meeting with the Acting Chief Acquisition Officer, she raised

14

the Executive Director’s “untruthful response to a Congressional inquiry.” Id.

at 17. Additionally, in her narrative statement, she asserted that the

“misrepresentation of fact in response to a Congressional inquiry was the event

that triggered [her] decision to meet with” the Acting Chief Acquisition Officer.

Id. at 43. Thus, nowhere below did the appellant claim that she disclosed that the

agency officials were preparing to lie. Because the appellant’s submissions

below are identical to those submitted to OSC and there is no documentation

concerning any other arguments made before OSC in the record, the appellant has

failed to prove that she exhausted this claim before OSC, and, therefore, we

cannot consider it here. See Mason v. Department of Homeland Security,

116 M.S.P.R. 135, ¶ 8 (2011) (stating that the Board may consider only matters

that the appellant first raised and exhausted before OSC). 5

¶25 With respect to the disclosure as framed in the proceeding below, we agree

with the administrative judge that the appellant failed to prove that she had a

reasonable belief in the contents of this disclosure. The Executive Director stated

that she was out on sick leave during the relevant time period that the

memorandum was written and submitted, IAF, Tab 9 at 28; W-3 AF, Tab 16 at 5,

and the appellant has not disputed that fact either below or on review, W -3 AF,

Tab 10; PFR File, Tab 5. Additionally, although the Board does not claim any

expertise in handwriting, it is clear on its face that the signature on the

5

The Board has recently clarified the substantive requirements of exhaustion.

Chambers v. Department of Homeland Security, 2022 MSPB 8 , ¶¶ 10-11. The

requirements are met when an appellant has provided OSC with a sufficient basis to

pursue an investigation. The Board’s jurisdiction is limited to those issues that have

been previously raised with OSC. However, an appellant may give a more detailed

account of her whistleblowing activities before the Board than she did to OSC. An

appellant may demonstrate exhaustion through her initial OSC complaint, evidence that

she amended the original complaint, including but not limited to OSC’s determination

letter and other letters from OSC referencing any amended allegations, and her written

responses to OSC referencing the amended allegations. She may also establish

exhaustion through other sufficiently reliable evidence, such as an affidavit or a

declaration attesting that she raised with OSC the substance of the facts in the Board

appeal. Id.

15

memorandum, while purporting to be that of the Executive Director, does not

even remotely resemble other signatures of the Executive Director contained in

the record, IAF, Tab 9 at 28; W-3 AF, Tab 13 at 44, Tab 16 at 9, Tab 17 at 48,

lending support to her assertion that someone else signed the document for her, 6

W-3 AF, Tab 16 at 5. Moreover, the appellant has alleged that she made this

disclosure on July 1, 2015, but the memorandum containing the purported false

information was not issued until September 11, 2015. IAF, Tab 9 at 28. Based

on the foregoing, we agree that the appellant failed to prove by preponderant

evidence that she had a reasonable belief in the disclosure that the Executive

Director lied to Congress.

The agency’s denial of the appellant’s promotion, nonselection of the appellant

for two positions, 2015 and 2016 performance evaluations, and significant change

in duties, responsibilities, and working conditions constitute personnel actions

under 5 U.S.C. § 2302(a)(2)(A).

¶26 Because the administrative judge found that the appellant failed to make a

protected disclosure, he did not proceed to adjudicate whether any of the

disclosures contributed to a personnel action. IAF, Tab 20 at 2-4; ID at 5-7, 23.

As explained above, because the record is fully developed and because we have

found that the appellant proved that she made a protected disclosure, we fully

adjudicate her claims here. See, e.g., Forte, 123 M.S.P.R. 124, ¶ 27; see also

Schnell v. Department of the Army, 114 M.S.P.R. 83, ¶¶ 17-24 (adjudicating the

remainder of an appellant’s IRA appeal after concluding that the administra tive

judge erred in finding that the appellant failed to prove that he exhausted his

remedy with OSC).

¶27 The appellant has alleged that, in reprisal for her disclosures, the agency

took a series of personnel actions against her, including denying her a promo tion

in 2015, not selecting her for two other positions for which she applied in 2016,

6

Although unclear, it is possible that someone else signed the document and wrote

“for” before the Executive Director’s name. W-1 AF, Tab 9 at 28.

16

giving her unjustifiably low performance evaluations in 2015 and 2016, denying a

grievance of her 2015 performance evaluation, denying her an opportunity to

complete the SESCDP training program, and subjecting her to a hostile work

environment. IAF, Tab 1 at 8-11, Tab 20 at 3-4. As explained below, we find

that the appellant proved by preponderant evidence that these constitute personnel

actions under 5 U.S.C. § 2302(a)(2)(A) except for the 2015 grievance denial and

the alleged blocking of her participation in the training program.

The appellant’s denial of a promotion, nonselection, and performance

appraisals are personnel actions under 5 U.S.C. § 2302(a)(2)(A).

¶28 As an initial matter, it appears undisputed that the agency did not select the

appellant for a promotion in 2015 or for details to two positions for which she had

applied in or around June of 2016, namely a Deputy Chief of Staff position and an

Associate Deputy Assistant Secretary (ADAS) for the Office of Procurement

Policy, Systems, and Oversight position. 7 IAF, Tab 9 at 174, 177; 8 W-3 AF,

7

The record in this case is long and convoluted. It appears that the appellant has also

alleged that she applied for two other positions in the National Acquisition Center and

was not selected for either position. W-3 AF, Tab 10 at 60. It is unclear whether these

nonselections were the ones accepted for adjudication below by the administrative

judge, or whether the two nonselections were the two details set forth here. However,

the appellant has offered no further information regarding these nonselections by the

National Acquisition Center, such as the dates she applied, the dates she was not

selected, who was responsible for the selections, and so forth. As such, we find these

allegations to be too vague to consider here. See McDonnell v. Department of

Agriculture, 108 M.S.P.R. 443, ¶ 7 (2008) (stating that the Board lacks IRA jurisdiction

over conclusory, vague, or unsupported allegations). Because her allegations contain

more information regarding the detail positions, we have considered those personnel

actions.

8

Regarding the detail to the ADAS position, there is some record evidence suggesting

that ultimately no one was selected for the position. IAF, Tab 9 at 177. Although there

may be a question as to whether a nonselection for a positio n that was ultimately never

filled—a situation somewhat comparable to the cancellation of a vacancy

announcement—can constitute a personnel action, see, e.g., Costin v. Department of

Health and Human Services, 64 M.S.P.R. 517, 530 (1994), the record elsewhere

suggests that soon after the agency informed the appellant that no one would be detailed

to the ADAS position, it did place somebody in that role, IAF, Tab 9 at 179; W-3 AF,

Tab 10 at 60.

17

Tab 10 at 42, 59-60, Tab 15 at 13. Decisions to not promote or to not appoint an

applicant, otherwise known as nonselections, are enumerated personnel actions

under 5 U.S.C. § 2302(a)(2)(A)(i)-(ii). Additionally, the record contains the

appellant’s 2015 and 2016 performance evaluations, W-3 AF, Tab 17 at 48-56,

61-67, and a performance evaluation is a personnel action under 5 U.S.C.

§ 2302(a)(2)(A)(viii). 9

The appellant’s claim of a hostile work environment qualifies as a

personnel action under 5 U.S.C. § 2302(a)(2)(A)(xii) because it involves a

significant change in duties, responsibilities, and working conditions.

¶29 In her claim of a hostile work environment, the appellant generally alleged,

among other things, that the Executive Director’s attitude towards her

substantially deteriorated, that her workload was increased and additional

assistance was not provided, that she was excluded from high-visibility, complex

projects, that she experienced several issues related to leave, that her

relationships and authority with subordinates were weakened by the Executive

Director, and that she was forced into uncomfortable situations with a subordina te

by the Executive Director. IAF, Tab 20 at 2-4; W-3 AF, Tab 10 at 42-69. She

also alleged that the Acting Chief Acquisition Officer avoided contact and

decreased communications with her. W-3 AF, Tab 10 at 44.

¶30 A hostile work environment claim can constitute a personnel action under

5 U.S.C. § 2302(a)(2)(A)(xii) when the components of the claim amount to a

significant change in duties, responsibilities, or working conditions. Skarada v.

Department of Veterans Affairs, 2022 MSPB 17, ¶ 16. When determining

whether an appellant has experienced a “significant change in duties,

9

The appellant’s summary rating for her 2015 performance appraisal was “Excellent,”

and her summary rating for her 2016 performance appraisal was “Fully Successful.”

W-3 AF, Tab 17 at 53, 65. Although these are typically favorable, or, at a minimum,

acceptable ratings, 5 U.S.C. § 2302(a)(2)(A) does not differentiate between levels of

ratings. Rather, that section simply provides that “a performance evaluation under

chapter 43 of this title or under title 38” constitutes a personnel act ion. 5 U.S.C.

§ 2302(a)(2)(A)(viii).

18

responsibilities, or working conditions,” the Board must consider the alleged

agency actions both collectively and individually because, even if an alleged

action does not constitute a covered personnel action individually, the cumulative

effect of certain actions could constitute a significant change in duties,

responsibilities, and working conditions. See Holderfield v. Merit Systems

Protection Board, 326 F.3d 1207, 1209-10 (Fed. Cir. 2003). Ultimately, the

Board must decide, based on the totality of the circumstances, whether the

agency’s actions have practical and significant effects on the o verall nature and

quality of an employee’s working conditions, duties, or responsibilities. Skarada,

2022 MSPB 17, ¶¶ 16, 18.

¶31 The appellant’s specific allegations that her workload substantially

increased and she was not allowed to hire anybody to offset that workload relate

directly to a change in duties, responsibilities, and working conditions, as

contemplated by 5 U.S.C. § 2302(a)(2)(A)(xii). Specifically, the appellant stated

that, after she made her disclosures, she was “swamped” with work and became

responsible to provide bimonthly Program Management Reviews in which she had

to prepare and provide all briefings on all ABS workload, a requirement not

imposed on any other office. W-3 AF, Tab 10 at 42. She also asserted that she

was required to report monthly on all ABS’s completed contracts requiring

closeout, even though she had closed out the most and had the fewest requiring

closeout of any OAO office. Id. Additionally, she claimed that the Executive

Director did not allow her to fill vacancies and reduced her total staff by over

68% while assigning additional tasks not relevant to the office’s function. Id.

at 48. Ultimately, the appellant stated, these actions resulted in her working “14

to 24 hours per day, 7 days per week, every week, including holidays.” Id. at 44.

¶32 The appellant’s statements are corroborated, to an extent, by the record.

For example, the Executive Director asserted in her sworn statement that

“[d]uring 2015, there were changes with regards to delegations, and that impacted

the review workload that was going [the appellant’s] way.” W -3 AF, Tab 16 at 6.

19

Similarly, the Executive Director acknowledged that the appellant was not able to

fill vacancies in her office because of hiring freezes. Id. Additionally, the Acting

Chief Acquisition Officer confirmed in his sworn statement that the appellant had

told him that “she was not getting the staff that she needed and that she was

getting too much work,” and that she was working more than 8 -hour days. Id.

at 10-11. As such, we find that the appellant proved the substance of her claims

regarding her workload. Further, we find that such an inc rease of workload

without additional assistance would have a practical and significant effect on the

overall nature and quality of her duties, responsibilities, and working conditions.

See Skarada, 2022 MSPB 17, ¶ 16. Accordingly, we find that she proved by

preponderant evidence that she was subjected to a personnel action under

5 U.S.C. § 2302(a)(2)(A)(xii).

The appellant has failed to show by preponderant evidence that the denial

of her grievances of her performance appraisals in 2015 and the alleged

denial of SESCDP training constitute personnel actions under 5 U.S.C.

§ 2302(a)(2)(A).

¶33 The appellant filed two grievances of her 2015 performance appraisals, both

of which were denied. IAF, Tab 9 at 114-15, 127. She has asserted that those

denials constitute personnel actions. W-3 AF, Tab 10 at 29-30. The denial of a

grievance is not an enumerated personnel action under 5 U.S.C. § 2302(a)(2)(A).

Although such an action could conceivably relate to a “decision concerning pay,

benefits, or awards,” as set forth in section 2302(a)(2)(A)(ix), the underlying

operative decision concerning pay, benefits, or awards is the performance

appraisal itself, and we have already found that to be a personnel action u nder

section 2302(a)(2)(A)(viii). Under the facts of this case, we decline to extend the

law to the situation presented here, and, therefore, we find that the 2015

grievance decisions of the 2015 performance appraisal are not covered personnel

actions under section 2302(a)(2)(A).

¶34 The appellant has also asserted that the agency denied her the opportunity to

complete SESCDP training. Specifically, she asserted that she was accepted into

20

the SESCDP training program, but that the Executive Director prevented her

participation in the program by “overwhelming [her] with tasks, precluding [her]

from filling personnel vacancies, and blocking [her] from moving to other

positions” so that she was unable to work on the SESCDP requirements. W-3 AF,

Tab 10 at 52-53. Under 5 U.S.C. § 2302(a)(2)(A)(ix), a decision concerning

training constitutes a personnel action if such training may reasona bly be

expected to lead to an appointment, promotion, performance evalu ation, or other

action set forth in section 2302(a)(2)(A). However, in this case, there is no

evidence of any “decision” to deny the appellant the SESCDP training.

Moreover, the agency has asserted, and the appellant has not disputed either

below or on review, that the appellant ultimately completed the SESCDP training

program. W-3 AF, Tab 10 at 68, Tab 15 at 28. As such, we find that the

appellant failed to prove by preponderant evidence that the agency made a

decision to deny her training and that such a decision constituted a personnel

action under 5 U.S.C. § 2302(a)(2)(A).

The appellant proved by preponderant evidence that her protected disclosure was

a contributing factor to the agency’s decision to give her lower performance

appraisals in 2015 and 2016, and to the significant change in duties,

responsibilities, and working conditions, but failed to make such a showing with

respect to its decision not to promote her in 2015 and not to select her for a detail

to either the Deputy Chief of Staff or the ADAS positions in 2016.

¶35 To prove that a disclosure was a contributing factor in a personnel action,

the appellant must demonstrate that the fact of, or the content of, the protected

disclosure was one of the factors that tended to affect th e personnel action in any

way. Mastrullo v. Department of Labor, 123 M.S.P.R. 110, ¶ 18 (2015). The

knowledge/timing test allows an employee to demonstrate that the disclosure was

a contributing factor in a personnel action through circumstantial evidence, such

as evidence that the official taking the personnel action knew of the disclosure

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

reasonable person could conclude that the disclosure was a contributing factor in

21

the personnel action. Id. Once this test has been met, we must find that the

appellant has shown that her whistleblowing was a contributing factor in the

personnel action at issue, even if, after a complete analysis of all of the evidence,

a reasonable factfinder could not conclude that the appellant’s whistleblowing

was a contributing factor in the personnel action. Id. We address the

contributing factor issue separately with respect to each personnel action.

The appellant proved that her protected disclosure was a con tributing

factor to the agency’s issuance of her 2015 and 2016 performance

appraisals.

¶36 Regarding the appellant’s performance appraisals, the 2015 performance

appraisal is dated October 14, 2015, and the 2016 performance appraisal is dated

October 20, 2016. W-3 AF, Tab 17 at 53, 65. The appellant asserted below that

she made her protected disclosure regarding the unlawful ratification of the UCs

in April of 2015. W-3 AF, Tab 10 at 7, 12, 42. A personnel action taken within

approximately 1-2 years of the appellant’s disclosure satisfies the timing prong of

the knowledge/timing test. Mastrullo, 123 M.S.P.R. 110, ¶ 21. Because both of

the performance appraisals were issued within 18 months of the appellant’s

April 2015 protected disclosure, we find that she has met the timing prong of the

knowledge/timing test. See id. Further, the record reflects that the agency

official responsible for those appraisals is the Executive Director, W-3 AF,

Tab 17 at 48-56, 61-67, and the appellant has sufficiently established that the

Executive Director was aware of her April 2015 disclosure, W-3 AF, Tab 16 at 4.

Thus, we also find that the appellant has met the knowledge prong of the

knowledge/timing test. Because the appellant has met both prongs of the test, we

therefore find that she proved by preponderant evidence that her April 2015

protected disclosure was a contributing factor to the 2015 and 2016 performance

appraisals. See Mastrullo, 123 M.S.P.R. 110, ¶¶ 18, 21.

22

The appellant proved that her protected disclosure was a contributing

factor to the significant change in duties, responsibilities, and working

conditions.

¶37 Regarding the significant change in duties, responsibilities, and working

conditions, the appellant asserted in her sworn statements, and the Executive

Director confirmed, that the Executive Director was the agency official

responsible for the appellant’s workload and the staffing levels of her office .

W-3 AF, Tab 10 at 21-23, 48, 53, 58, Tab 16 at 6. Neither party appears to

dispute that the time frame in question for this personnel action runs from April

2015 through the time the Executive Director retired in October of 2016. W -3

AF, Tab 10 at 21-23, Tab 16 at 6. We have already stated that the Executive

Director was aware of the disclosure because it was made to her, W-3 AF, Tab 16

at 4, and the appellant has sufficiently established that the personnel action

occurred within 1-2 years of the April 2015 disclosure, W-3 AF, Tab 10 at 42, 48.

As such, she has met the knowledge/timing test and has proven that her protected

disclosure was a contributing factor to this personnel action. See Mastrullo,

123 M.S.P.R. 110, ¶¶ 18, 21.

The appellant failed to prove that her protected disclosure was a

contributing factor to the agency’s decision to not promote her in 2015.

¶38 Regarding the agency’s decision not to promote the appellant in 2015, the

appellant asserted that that decision occurred in April 2015, and the agency has

submitted into the record the selection register for the position, dated April 13,

2015, which shows that the appellant was not on the list of best-qualified

candidates, and, thus, could not have been selected for the position. W-3 AF,

Tab 10 at 42, Tab 16 at 23. As such, the operative date for the decision not to

promote the appellant is April 13, 2015. While the appellant asserted generally

throughout the appeal that her disclosure occurred in April 2015, her most

specific allegation is in her final brief where she states she raised her concern

over the ratification of the UCs “as early as late April 2015.” Id. at 12. It is the

appellant’s burden to show by preponderant evidence that her protected disclosure

23

was a contributing factor to this personnel action, see Lu, 122 M.S.P.R. 335, ¶ 7.

We find that she has not provided sufficient evidence to establish that her

disclosure occurred before the agency made the decision to not promote her.

Accordingly, we find that the appellant failed to prove by preponderant evidence

that her protected disclosure was a contributing factor to the agency’s decision to

not promote her.

The appellant failed to prove that her protected disclosure was a

contributing factor to the agency’s decision to not select her for the detail

to the ADAS position in 2016.

¶39 Regarding her claim that the agency did not select her for the detail to the

ADAS position in reprisal for her protected disclosure, the appellant asserted that,

in May of 2016, she sought the detail to the ADAS position with the Office of

Procurement Policy, Systems, and Oversight, where she would be working under

the Deputy Assistant Secretary, and that she informed the Executive Director that

she was seeking that detail. W-3 AF, Tab 10 at 59. She further stated that she

later attended a meeting with the Deputy Assistant Secretary, the Executive

Director, and the departing ADAS, where she informed the Deputy Assistant

Secretary that she wished to be detailed to his office as an ADAS, and that he told

her to contact his assistant. Id. at 59-60. The appellant stated that the Executive

Director later told her that the three officials had discussed her potential detail

after she had left the meeting, and that she was ultimately informed that no one

would be detailed to the position. Id. at 60.

¶40 It appears undisputed that the decision to not select the appellant for the

detail to the ADAS position occurred sometime around May 2016, IAF, Tab 9

at 177, which is within 1-2 years of the appellant’s April 2015 protected

disclosure, which satisfies the timing component of the kno wledge/timing test.

Mastrullo, 123 M.S.P.R. 110, ¶ 21. Based on the record, the Deputy Assistant

Secretary was the agency official responsible for the decision regarding the detail,

IAF, Tab 9 at 177; W-3 AF, Tab 10 at 59-60; however, the appellant has not

24

asserted, much less proven, that he was aware of her protected disclosure.

Nonetheless, in addition to proving actual knowledge to meet the knowledge

component of the knowledge/timing test, an appellant may also show that the

official taking the personnel action had constructive knowledge of the protected

disclosure. Nasuti v. Department of State, 120 M.S.P.R. 588, ¶ 7 (2014); Dorney

v. Department of the Army, 117 M.S.P.R. 480, ¶ 11 (2012). An appellant may

establish constructive knowledge by demonstrating that an individual with actual

knowledge of the disclosure or activity influenced the official accused of taking

the retaliatory action. Nasuti, 120 M.S.P.R. 588, ¶ 7; Dorney, 117 M.S.P.R. 480,

¶ 11.

¶41 Here, the appellant alleged that the Executive Director, who had knowledge

of the protected disclosure, W-3 AF, Tab 16 at 4, discussed the appellant’s

potential detail with the Deputy Assistant Secretary, W-3 AF, Tab 10 at 59-60.

The Executive Director acknowledged the discussion, but asserted that she did not

approach the Deputy Assistant Secretary, and that he, instead, approached her and

offered the unsolicited statement that “he was not interested in [the a]ppellant

joining his organization.” W-3 AF, Tab 16 at 8. Although it is undisputed that

the Executive Director and Deputy Assistant Director discussed the appellant’s

potential detail, it is the sequence of events that is determinative. The appellant

has not challenged the Executive Director’s contention that, when the Deputy

Assistant Secretary approached the Executive Director, he ha d already made his

decision regarding the appellant’s possible detail, and her speculation regarding

their conversation is insufficient to establish influence. See Duncan v.

Department of the Air Force, 115 M.S.P.R. 275, ¶ 9 (2010) (finding that an

appellant’s speculation did not rise to the level of preponderant evidence), aff’d,

674 F.3d 1359 (Fed. Cir. 2012). Therefore, we find that the appellant failed to

meet her burden to prove by preponderant evidence that the Executive Director

influenced the Deputy Assistant Secretary’s decision to not detail the appellant to

his office, and has, thus, failed to establish either constructive or actual

25

knowledge on the part of the Deputy Assistant Secretary. Accordingly, we find

that the appellant failed to meet the knowledge prong of the knowledge/timing

test.

¶42 When an appellant fails to meet the knowledge/timing test, the Board will

consider other evidence, such as evidence pertaining to the strength or weakness

of the agency’s reasons for taking the personnel action, whether the

whistleblowing was personally directed at the proposing or deciding officials, and

whether these individuals had a desire or motive to retaliate against the appellant.

See Dorney, 117 M.S.P.R. 480, ¶ 15.

¶43 Here, there is almost no evidence in the record regarding the strength or

weakness of the agency’s reasons for not detailing the appellant to this role.

Importantly, at this stage of the proceedings, it is the appellant’s burden to

establish that her protected disclosure was a contributing factor to a personnel

action and this lack of evidence cuts against her. Further, her protected

disclosure was not personally directed at the Deputy Assistant Secretary, nor did

the Deputy Assistant Secretary have any knowledge of it. This lack of knowledge

suggests that the Deputy Assistant Secretary could not have given the protected

disclosure any weight and that he could not have had any desire or motive to

retaliate based thereon. Cf. Dorney, 117 M.S.P.R. 480, ¶ 15 (stating that any

weight given to a whistleblowing disclosure, either alone or in combination with

other factors, can satisfy the contributing factor standard ); cf. Sherman v.

Department of Homeland Security, 122 M.S.P.R. 644, ¶¶ 3-4, 9 (2015)

(explaining that a disclosure could have been a contributing factor in a negative

performance evaluation only if the reviewing official learned of it before making

his decision). Based on the foregoing, we find that the appellant failed to prove

that her protected disclosure was a contributing factor to this action.

26

The appellant failed to prove that her protected disclosure was a

contributing factor to the agency’s decision to not select her for the Deputy

Chief of Staff position in or around May or June 2016.

¶44 The appellant asserted that, in or around May or June 2016, she applied for

the Deputy Chief of Staff position. W-3 AF, Tab 10 at 59. The record

establishes that the Chief of Staff was more likely than not the selecting official

for this position. IAF, Tab 9 at 175. The appellant claimed that, after she met

with the Chief of Staff, he indicated that he was going to call the Acting Chief

Acquisition Officer, but that after his conversation with the Acting Chief

Acquisition Officer, the appellant never heard back from the Chief of Staff again.

W-3 AF, Tab 10 at 59. We interpret these statements to amount to an allegation

that the Acting Chief Acquisition Officer influenced the Chief of Staff’s decision

not to hire the appellant for the position.

¶45 As explained above, an appellant may establish either actual or constructive

knowledge to meet the knowledge portion of the knowledge/timing test, and can

show constructive knowledge by demonstrating that an individual with actual

knowledge of the disclosure or activity influenced the official accused of taking

the retaliatory action. Nasuti, 120 M.S.P.R. 588, ¶ 7; Dorney, 117 M.S.P.R. 480,

¶ 11. Here, the appellant has established that the Acting Chief Acquisition

Officer had actual knowledge of her protected disclosure, W-3 AF, Tab 16

at 10-11, and has alleged that he influenced the Chief of Staff’s decision

regarding her nonselection, W-3 AF, Tab 10 at 59. However, she has not

produced any evidence of such influence, such as when the two officials met, how

long they spoke, or what they spoke about, whether the Acting Chief Acquisition

Officer was aware that the appellant was seeking the position, or any other

corroboration of her claim. It is the appellant’s burden of proof to establish that

her protected disclosure was a contributing factor to the nonselection. 5 U.S.C.

§ 1221(e)(1); Lu, 122 M.S.P.R. 335, ¶ 7. Her bare assertion, without more, is

insufficient to establish constructive knowledge by preponderant evidence, see

27

Duncan, 115 M.S.P.R. 275, ¶ 9. As such, we find that the appellant failed to

prove the knowledge prong of the knowledge/timing test.

¶46 As set forth above, when an appellant fails to meet the knowledge/timing

test, the Board will generally consider other evidence, such as evidence related to

the strength or weakness of the agency’s reasons for the personnel action,

whether the proposing or deciding official was the subject of the appellant’s

protected disclosure, and whether those officials had a desire or motive to

retaliate against the appellant. See Dorney, 117 M.S.P.R. 480, ¶ 15. Here, like

our above analysis of the ADAS nonselection, although the record lacks evidence

regarding why the agency did not select the appellant for this detail, the appellant

has not shown that its decision was weak or unsupported. Further, the appellant’s

protected disclosure regarding the unlawful ratification of the UCs was not

directed at the Chief of Staff, and the appellant failed to prove that he had either

actual or constructive knowledge of the disclosure. Again, such lack of

knowledge suggests that the Chief of Staff could not have given the appella nt’s

protected disclosure any weight, nor could he have had any desire or motive to

retaliate based thereon. Cf. Sherman, 122 M.S.P.R. 644, ¶¶ 3-4, 9; Dorney,

117 M.S.P.R. 480, ¶ 15. Accordingly, we find that the appellant failed to prove

by preponderant evidence that her protected disclosure was a contributing factor

to this personnel action.

The agency proved by clear and convincing evidence that it would have given the

appellant the same performance rating in 2015 and would have changed her

duties, responsibilities, and working conditions even in the abs ence of her

protected disclosure, but failed to prove that it would have given her the same

performance rating in 2016 in the absence of her protected disclosure.

¶47 Once the appellant makes a prima facie showing of whistleblower reprisal,

the burden shifts to the agency to prove by clear and convincing evidence that it

would have taken the same personnel action in the absence of the protected

disclosure. Lu, 122 M.S.P.R. 335, ¶ 7. Clear and convincing evidence is that

measure or degree of proof that produces in the mind of the trier of fact a firm

28

belief as to the allegations sought to be established; it is a higher standard than

the “preponderance of the evidence” standard. Sutton v. Department of Justice,

94 M.S.P.R. 4, ¶ 18 (2003), aff’d, 97 F. App’x 322 (Fed. Cir. 2004); 5 C.F.R.

§ 1209.4(e). In determining whether an agency has shown by clear and

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

absence of whistleblowing, the Board will consider all of the relevant factors,

including the following (“Carr factors”): (1) the strength of the agency’s

evidence in support of its action; (2) the existence and strength of any motive to

retaliate on the part of the agency officials who were involved in the decision;

and (3) any evidence that the agency takes similar actions against employees who

are not whistleblowers but who are otherwise similarly situated. Soto v.

Department of Veterans Affairs, 2022 MSPB 6, ¶ 11; see also Carr v. Social

Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). 10 The Board does

not view these factors as discrete elements, each of which the agency must prove

by clear and convincing evidence, but rather weighs these factors together to

determine whether the evidence is clear and convincing as a whole. Lu,

122 M.S.P.R. 335, ¶ 7. The Board must consider all the evidence, including

evidence that fairly detracts from the conclusion that the agency met its burden.

Whitmore v. Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012). Again,

because the record is fully developed in this matter, we consider these questions

here without remand. See Forte, 123 M.S.P.R. 124, ¶ 27.

10

Historically, the Board has been bound by the precedent of the U.S. Court of Appeals

for the Federal Circuit on these types of whistleblower issues. However, pursuant to

the All Circuit Review Act, Pub. L. No. 115-195, 132 Stat. 1510 (2018), appellants may

file petitions for judicial review of Board decisions in whistleblower reprisal cases with

any circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703(b)(1)(B).

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

review of this decision before any appropriate court of appeal.

29

The agency proved by clear and convincing evidence that it would have

given the appellant the same performance appraisal rating in 2015 even in

the absence of her protected disclosure but failed to prove the same with

respect to her 2016 performance appraisal rating.

¶48 Regarding the 2015 and 2016 performance appraisals, we first look to the

strength of the agency’s evidence in issuing the ratings. See Carr, 185 F.3d

at 1323. With respect to the appellant’s 2015 performance appraisal, the

Executive Director rated the appellant “Excellent.” W-3 AF, Tab 17 at 53.

Although this is the second-highest possible rating, the appellant asserted that the

evaluation “provided objectively inaccurate numbers and statements regarding

[her] performance, omitted most of [her] accomplishments during the rating

period, omitted [her] most significant accomplishments, and understated the

accomplishments that [the Executive Director] referenced.” W -3 AF, Tab 10

at 50. In a sworn statement, the Executive Director asserted that she does “not

view an Excellent as a low rating.” W-3 AF, Tab 16 at 8. The performance

appraisal itself shows that the Executive Director gave the appellant the highest

rating (“Exceptional”) in six of the seven rating categories and the middle rating

level (“Fully Successful”) in the remaining seventh category, which was

“Teamwork and Cooperation.” 11 W-3 AF, Tab 17 at 52. The narrative

accompanying the performance evaluation sets forth the basis for the rating in

each category, explained the appellant’s accomplishments in a brief, yet

thorough, manner, and acknowledged that her most significant contribution

during the rating period was the mobilization of her workforce to address a

backlog of more than 6,000 contract closeouts. Id. at 55-56. The appellant’s

challenges to this narrative are vague and unspecific, and do not undercut in any

meaningful way the narrative’s evidentiary value. 12 W-3 AF, Tab 10 at 50.

11

To receive an overall performance rating of “Outstanding,” an agency employee m ust

achieve an “Exceptional” rating for all elements. W -3 AF, Tab 17 at 53.

12

The appellant’s only discernable specific challenge to her performance appraisal

relates to the “Teamwork and Cooperation” element, wherein she argues that the agency

30

¶49 With respect to the 2016 performance evaluation, the Executive Director

rated the appellant “Fully Successful.” W-3 AF, Tab 17 at 65. This rating has

two rating categories above it and two below it. Id. The appellant has not

explained in her pleadings below or in a sworn statement why she was dissatisfied

with this rating, and the Executive Director stated i n her sworn statement that she

does not consider “Fully Successful” to be a low rating. W-3 AF, Tab 16 at 8.

The appraisal shows that the appellant received “Fully Successful” ratings for

five out of the six rated elements, and an “Exceptional” rating fo r the sixth

element. W-3 AF, Tab 17 at 64. Unlike the appellant’s 2015 performance

appraisal, however, the narrative summary of the appellant’s performance for

2016 is limited to one brief paragraph discussing only one of the critical

elements. Id. at 67.

¶50 Based on the foregoing, we find that the agency presented strong and

convincing evidence to support the 2015 performance appraisal rating, but we

also find that it presented almost no substantive evidence to support the 2016

performance appraisal rating. Thus, this factor weighs in favor of the agency

with respect to the 2015 performance appraisal but against it with respect to t he

2016 performance appraisal.

¶51 Regarding the existence and strength of the agency’s motive to retaliate, the

Executive Director stated in her affidavit that she did not rate the appellant

“Excellent” in 2015 or “Fully Successful” in 2016 “as retaliation for or as any

relation to any disclosure made to or about me.” W-3 AF, Tab 16 at 8. However,

the Executive Director was the agency official responsible for both appraisals,

and the Board has found that when the deciding official for the personnel action

is the subject of an appellant’s disclosure, as is undisputedly the case here, that

official may have a motive to retaliate against her. See Mithen v. Department of

did not correctly assess her travel, W-3 AF, Tab 10 at 50, but that challenge appears to

relate more directly to the Executive Director’s response to the appellant’s grievance of

the appraisal, as opposed to the appraisal narrative itself, id. at 59.

31

Veterans Affairs, 119 M.S.P.R. 215, ¶ 9 (2013). Further, we have found that

those responsible for the agency’s performance overall may well be motivated to

retaliate even if they are not directly implicated by the disclosures, as the

criticism reflects on them in their capacities as managers and employees. Wilson

v. Department of Veterans Affairs, 2022 MSPB 7, ¶ 65; Smith v. Department of

the Army, 2022 MSPB 4, ¶¶ 28-29. The record establishes that the Executive

Director was in a senior leadership role in the work unit and was presumably

responsible for its overall performance, and, thus, may well have been motivated

to retaliate against the appellant because the criticism included in the disclosure

reflects on her in her capacity as a manager. See id. Moreover, the record also

reflects that the relationship between the Executive Director and the appellant

was tense and strained. Thus, despite the Executive Director’s statement that the

appraisals were not in retaliation, we nonetheless find that this factor favors the

appellant.

¶52 The third Carr factor involves comparing employees who are similarly and

not identically situated. Soto, 2022 MSPB 6, ¶ 11; see also Whitmore, 680 F.3d

at 1373. In this case, the appellant has admitted that at least 45% of agency

employees do not get “Outstanding” ratings. W-3 AF, Tab 10 at 51. The agency

has not presented any other evidence on this point, W-3 AF, Tabs 16-18, but it

does not dispute the appellant’s contention. Because it is the agency’s burden of

proof, when the agency fails to introduce relevant comparator evidence, the third

Carr factor is effectively removed from consideration, although it cannot weigh

in favor of the agency. Soto, 2022 MSPB 6, ¶ 18; see also Rickel v. Department

of the Navy, 31 F.4th 1358, 1365-66 (Fed. Cir. 2022) (“The lack of evidence on

the third Carr factor appears neutral[.]”) (internal citation omitted). Considering

the appellant’s own admission with the agency’s lack of other substantive

evidence, we find that this factor weighs mostly neutral, if not slightly in favor of

the agency. See Siler v. Environmental Protection Agency, 908 F.3d 1291, 1299

32

(Fed. Cir. 2018) (holding that in the absence of relevant comparator evidence, the

third Carr factor cannot favor the agency).

¶53 Weighing these factors against one another and on the whole with respect to

the 2015 performance appraisal, we find that the first factor warrants significant

weight, particularly given the detailed narrative provided for that year’s

performance appraisal. Moreover, by the appellant’s own admission, nearly half

of agency employees receive ratings lower than “Outstanding,” and it is

unrealistic to assume that those half are all whistleblowers, suggesting that other

similarly situated employees who are not whistleblowers also receive d ratings

below “Outstanding.” Although the Executive Director may have had a motive to

retaliate, we nonetheless find that the agency met its burden to show by clear and

convincing evidence that the appellant would have received the same rating in her

2015 performance appraisal even in the absence of her disclosure.

¶54 However, the agency’s near-complete lack of evidence to support the

appellant’s 2016 performance appraisal is concerning. Additionally, the fact that

the agency rated the appellant at a higher level just the year prior forecloses any

hypothetical justification that the appellant’s 2016 rating was consistent with

prior ratings. Indeed, the appellant dropped a performance level in nearly every

element from 2015 to 2016. W-3 AF, Tab 17 at 52, 64. The Board has held that,

when an agency fails to provide any narrative evidence to supp ort a performance

rating and there is no reason to believe that the performance rating is consistent

with other ratings, the agency fails to meet its burden to show by clear and

convincing evidence that it would have given an appellant the same performance

rating even in the absence of a protected disclosure. See Rumsey v. Department

of Justice, 120 M.S.P.R. 259, ¶¶ 35-38 (2013). This, combined with the

Executive Director’s potential motive to retaliate against the appellant , leads us to

find that the agency failed to prove by clear and convincing evidence that it

would have given the appellant the same performance rating in 2016 even in the

absence of her protected disclosure.

33

The agency proved by clear and convincing evidence that it would have

made significant changes to the appellant’s duties, responsibilities, and

working conditions even in the absence of her disclosure.

¶55 As explained above, the gravamen of the appellant’s hostile work

environment claim under 5 U.S.C. § 2302(a)(2)(A)(xii) relates to her workload

and staffing levels. 13 Regarding the strength of the agency’s evidence in support

of these changes, the Executive Director stated in her affidavit that, in 2015,

“there were changes with regards to delegations, and that impacted the review

workload that was going [the appellant’s] way.” W-3 AF, Tab 16 at 6. She also

claimed that she intended to allow the appellant to fill vacancies in her office, but

that there was a hiring freeze around that time imposed by the Supply Fund

Board. Id. The appellant has not disputed these points. W-3 AF, Tab 10. The

Executive Director further stated that when people are leaving the agency without

those positions being filled and there is still work coming in, it can seem like the

workload is increasing. W-3 AF, Tab 16 at 6. However, the agency has not

addressed the specific tasks identified by the appellant, such as her claim that she

was required to provide bimonthly Program Management Reviews in which she

had to prepare and provide all briefings on all of the ABS workload and to report

monthly on all of ABS’s completed contracts requiring closeout. W-3 AF, Tab 10

at 42. Furthermore, the appellant asserted that no other office was subject to

these requirements. Id. Although the record does not establish who imposed the

above-referenced delegation changes (which could have been responsible for the

additional assignments to the appellant’s workload), and for what purposes he or

she imposed them, the Executive Director nonetheless stated that she “moved

work away from [the appellant’s] organization to places that had more capacity”

13

We reiterate that, although we have considered the appellant’s additional allegations

concerning the difficulties she faced in the workplace, such as her allegations that the

Executive Director discouraged her from taking leave and withdrew her prior support

for the restoration of the appellant’s leave, those allegations are too vague to be

considered here. See supra ¶ 32 n.10.

34

and “provided several people from other parts of OAO on details at various times

to help with workload.” W-3 AF, Tab 16 at 6. The appellant does not appear to

dispute this assertion. W-3 AF, Tab 10. We find these explanations convincing

and conclude that this factor favors the agency.

¶56 Regarding the second factor, as noted above, it is undisputed that the

Executive Director was responsible for the appellant’s workload and staffing

level. W-3 AF, Tab 10 at 21-23, 48, 53, 58, Tab 16 at 6. In her affidavit, she

stated she “did not increase [the appellant’s] workload” or “prevent [her] from

hiring additional personnel” as retaliation or for any reason relating to [her]

disclosures she made to or about me.” W-3 AF, Tab 16 at 6-7. Again, however,

we incorporate our analysis of this factor from above, namely, that the Executive

Director was the subject of the appellant’s disclosure and held a leadership role in

the work unit and was presumably responsible for its performance overall, and as

such, could have had a motive to retaliate against the appellant. See Wilson,

2022 MSPB 7, ¶ 65; see also Whitmore, 680 F.3d at 1370. As we have found

above, this factor favors the appellant.

¶57 Regarding the third Carr factor, the agency has not presented any evidence

showing that it treats similarly situated employees who are not whistleblowers the

same as the appellant in this regard. Whether the agency’s lack of evidence here

is due to the fact that there are not any employe es similarly situated to the

appellant, given her leadership role, or because it failed to conduct a search in the

first instance is not answered by the record. As previously explained, when the

agency fails to introduce relevant comparator evidence, the third Carr factor is

effectively removed from consideration, although it cannot weigh in favor of the

agency. Soto, 2022 MSPB 6, ¶ 18.

¶58 Weighing the three Carr factors as they relate to the significant change in

duties, responsibilities, and working conditions, we place significant weight on

the Executive Director’s explanation that delegations changed in 2015 and that

there was a hiring freeze. Although we acknowledge that the Executive Director

35

could have had a motive to retaliate, and the agency failed to produce any

evidence with regard to the third Carr factor, we nonetheless accept the agency’s

explanation for these actions and its assertion that it did move wor k away from

the appellant when possible. As such, we find that the agency proved by clear

and convincing evidence that it would have increased the appellant’s workload

and disallowed her from filling vacancies even in the absence of her disclosure.

¶59 In conclusion, we reverse the initial decision to find that the appellant

established a prima facie case of whistleblower reprisal , and we further find that

the agency failed to prove by clear and convincing evidence that it would have

given the appellant the same performance rating in 2016 even in the absence of

her protected disclosure. Accordingly, for the foregoing reasons, we find that the

appellant is entitled to corrective action under 5 U.S.C. § 1221(g)(1) with respect

to her 2016 performance appraisal.

ORDER

¶60 We ORDER the agency to change the appellant’s 2016 performance

appraisal such that her rating in each element and the overall rating are the same

as the ratings she earned in 2015, ratings that were not tainted by reprisal for

whistleblowing. 14 Brewer v. Department of the Interior, 76 M.S.P.R. 363, 372

14

We recognize that some of the elements and metrics in the appellant’s performance

standards appear to have changed between 2015 and 2016. W-3 AF, Tab 17 at 48-52,

61-64. However, at least five elements are substantially similar. Id. Where the

appellant’s ratings in 2015 and 2016 differ in those five elements, the 2016 rating shall

be changed to match the 2015 rating, which was not tainted by reprisal for

whistleblowing. Specifically, the appellant’s 2016 ratings in the “Pre -Award

Function,” “Contract Management,” and “Human Resources” elements shall be raised to

“Exceptional.” The appellant’s 2015 and 2016 ratings in the “Customer Care and

Service” and “Teamwork and Cooperation” elements are the same, and thus do not

require a change. Id. at 52, 64. Additionally, the appellant’s 2016 appraisal included

“Employee Engagement” as an element, which was not included in her 2015 appraisal.

Id. at 52, 64, 66. Thus, we cannot compare her rating in that element to one that was

not tainted by reprisal. Because the “Fully Successful” rating given by the agency in

the “Employee Engagement” element was the product of reprisal, the agency shall

change the appellant’s rating in that element to “Exceptional.”

36

(1997); see 5 U.S.C. § 1221(e)(1). We also ORDER the agency to provide the

appellant with any other relief associated with the higher ratings, including

awards and bonuses, such that she is placed as nearly as po ssible in the situation

she would have been in had the agency not retaliated against her. 5 U.S.C.

§ 1221(g)(1)(A)(i); see Rumsey, 120 M.S.P.R. 259, ¶ 50. The agency must

complete this action no later than 20 days after the date of this decision.

¶61 We also ORDER the agency to pay the appellant, if applicable, the amount

of back pay, interest on back pay, and other benefits under the Office of

Personnel Management’s regulations, no later than 60 calendar days after the date

of this decision. We ORDER the appellant to cooperate in good faith in the

agency’s efforts to calculate the amount of back pay, interest, and benefits due,

and to provide all necessary information the agency requests to help it carry out

the Board’s Order. If there is a dispute about the amount of back pay, interest

due, and/or other benefits, we ORDER the agency to pay the appellant the

undisputed amount no later than 60 days after the date of this decision.

¶62 We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and to describe the

actions it took to carry out the Board’s Order. The appellant, if not no tified,

should ask the agency about its progress. See 5 C.F.R. § 1201.181(b).

¶63 No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision in this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain the specific reasons why the appellant believes that the agency has

not fully carried out the Board’s Order, and should include the dates and results

of any communication with the agency. 5 C.F.R. § 1201.182(a).

¶64 For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Defense Finance and

Accounting Service (DFAS), two lists of the information and documentation

37

necessary to process payments and adjustments resulting from a Board decision

are attached. The agency is ORDERED to timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that payment can be

made within the 60-day period set forth above.

¶65 This is the final decision of the Merit Systems Protection Board in this

appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.

§ 1201.113).

NOTICE TO THE APPELLANT

REGARDING YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set forth at title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1202.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST CONSEQUENTIAL AND/OR

COMPENSATORY DAMAGES

You may be entitled to be paid by the agency for your consequential

damages, including medical costs incurred, travel expenses, and any other

reasonable and foreseeable consequential damages. To be paid, you must meet

the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may

be found at 5 C.F.R. §§ 1201.201, 1201.202 and 1201.204.

In addition, the Whistleblower Protection Enhancement Act of 2012

authorized the award of compensatory damages including interest, reasonable

38

expert witness fees, and costs, 5 U.S.C. §§ 1214(g)(2), 1221(g)(1)(A)(ii), which

you may be entitled to receive.

If you believe you are entitled to these damages, you must file a motion for

consequential damages and/or compensatory damages WITHIN 60 CALENDAR

DAYS OF THE DATE OF THIS DECISION. You must file your motion with the

office that issued the initial decision on your appea l.

NOTICE TO THE PARTIES

A copy of the decision will be referred to the Special Counsel “to

investigate and take appropriate action under [5 U.S.C.] section 1215,” based on

the determination that “there is reason to believe that a current employee may

have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8) or

section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(f)(3). Please note

that while any Special Counsel investigation related to this decision is pending,

“no disciplinary action shall be taken against any employee for any alleged

prohibited activity under investigation or for any related activity without the

approval of the Special Counsel.” 5 U.S.C. § 1214(f).

NOTICE OF APPEAL RIGHTS 15

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

15

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.

39

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).

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.

40

(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, the

address of the EEOC is:

41

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).

16

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,

132 Stat. 1510.

42

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

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.

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below:

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

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.

DEFENSE FINANCE AND ACCOUNTING SERVICE

Civilian Pay Operations

DFAS BACK PAY CHECKLIST

The following documentation is required by DFAS Civilian Pay to compute and pay back pay

pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following

checklist to ensure a request for payment of back pay is complete. Missing documentation may

substantially delay the processing of a back pay award. More information may be found at:

https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.

NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by

vendor pay, not DFAS Civilian Pay.

☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the

specific dates of the back pay period within the ticket comments.

Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket

comments as to why the documentation is not applicable:

☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.

☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.

☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s

until notified to do so by DFAS Civilian Pay.***

☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until

notified to do so by DFAS Civilian Pay.***

☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).

☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee

in a job undertaken during the back pay period to replace federal employment.

Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,

include record of any unemployment earning statements, workers’ compensation,

CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,

or severance pay received by the employee upon separation.

Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority

under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment

they may have received. The payroll office must collect the debt from the back pay award. The

annual leave will be restored to the employee. Annual leave that exceeds the annual leave

ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).

NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES

Below is the information/documentation required by National Finance Center to process

payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit

Systems Protection Board, EEOC, and courts.

1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information describing

what to do in accordance with decision.

2. The following information must be included on AD-343 for Restoration:

a. Employee name and social security number.

b. Detailed explanation of request.

c. Valid agency accounting.

d. Authorized signature (Table 63).

e. If interest is to be included.

f. Check mailing address.

g. Indicate if case is prior to conversion. Computations must be attached.

h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected

(if applicable).

Attachments to AD-343

1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday Premium,

etc. with number of hours and dates for each entitlement (if applicable).

2. Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.

3. Outside earnings documentation statement from agency.

4. If employee received retirement annuity or unemployment, provide amount and address to

return monies.

5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)

6. If employee was unable to work during any or part of the period involved, certification of the type of

leave to be charged and number of hours.

7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave to

be paid.

NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and required

data in 1-7 above.

The following information must be included on AD-343 for Settlement Cases: (Lump Sum Payment,

Correction to Promotion, Wage Grade Increase, FLSA, etc.)

a. Must provide same data as in 2, a-g above.

b. Prior to conversion computation must be provided.

c. Lump Sum amount of Settlement, and if taxable or non-taxable.

If you have any questions or require clarification on the above, please contact NFC’s Payroll/Personnel

Operations at 504-255-4630.