The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RITA S. VAZ, DOCKET NUMBER
Appellant, DA-1221-15-0132-W-1
v.
DEPARTMENT OF HOUSING AND DATE: September 6, 2023
URBAN DEVELOPMENT,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Celine Fernandes, Arlington, Massachusetts, for the appellant.
Mary C. Merchant and Sakeena Adams, Fort Worth, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review,
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
REVERSE the initial decision, and REMAND the case to the Dallas Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 At all times relevant to this appeal, the appellant was employed in the
agency’s Office of Public Housing, Houston Field Office. Vaz v. Department of
Housing and Urban Development, MSPB Docket No. DA-1221-15-0132-W-1,
Initial Appeal File (IAF), Tab 1 at 10, 19. On February 10, 2014, the appellant
filed a whistleblower reprisal complaint with the Office of Special Counsel
(OSC). IAF, Tab19. In her complaint, she alleged that she had disclosed abuses
of authority, gross mismanagement, and violations of various Federal laws, and in
retaliation for her disclosures the agency had taken a number of personnel
actions, including giving her a minimally satisfactory performance appraisal in
Fiscal Year (FY) 2013 and then placing her on a performance improvement plan
(PIP) on March 27, 2014. Id. at 6-15. She alleged that she had made the
disclosures beginning in 2006 and “aggressively” since 2013, both “internally” to
various management officials, and “externally” to a Board administrative judge, 2
an Equal Employment Opportunity Commission (EEOC) administrative judge,
and agency attorneys. Id. at 6. The appellant made subsequent amendments to
that complaint, including an alleged disclosure to the Inspector General (IG) in
2014, with the final modification taking place on August 14, 2014. See id. at 4,
2
The appellant named the administrative judge who adjudicated her previous appeal in
Vaz v. Department of Housing and Urban Development, MSPB Docket No. DA-0752-
13-0450-I-1, Initial Decision (Nov. 19, 2013), which was dismissed as withdrawn. On
August 4, 2014, the appellant filed a second Board appeal, in which she alleged, among
other things, that the agency had engaged in whistleblower reprisal. The administrative
judge dismissed that appeal for lack of jurisdiction, partly on the grounds that the
appellant had not exhausted her remedies with OSC. Vaz v. Department of Housing and
Urban Development, MSPB Docket No. DA-3443-14-0579-I-1, Initial Decision
(Sept. 17, 2014). Neither party filed a petition for review of that decision. The same
administrative judge was initially assigned to the instant appeal.
3
71-72. On October 28, 2014, OSC notified the appellant that it had closed its
investigation and advised her of her Board appeal rights. IAF, Tab 20 at 50.
¶3 On December 14, 2014, the appellant filed the instant Board appeal. IAF,
Tab 1. The administrative judge to whom the case was initially assigned
informed the appellant of the requirements for establishing jurisdiction in an IRA
appeal and ordered her to submit evidence and argument on the jurisdictional
issue. IAF, Tab 3. In her response to that order, the appellant alleged that she
made protected disclosures on the following occasions: (1) on June 16, 2008, to
the Assistant Secretary; (2) on July 24, 2013, to an agency attorney; (3) on
several dates from 2013 to 2014, to an EEOC administrative judge; and (4) in
2014, to the IG, the Chief Human Capital Officer, and agency counsel. IAF,
Tab 10 at 13-25.
¶4 The administrative judge advised the parties that the issue of jurisdiction
still had not been resolved and ordered the appellant to produce a copy of her
OSC complaint and additional correspondence with OSC. 3 IAF, Tab 17 at 2. In
response, the appellant provided a copy of her amended OSC complaint form and
various documents she submitted to OSC in support of the complaint. IAF,
Tab 19. Based on the appellant’s submissions, the administrative judge found
3
We note that submission of an OSC complaint is not the only way to establish
jurisdiction, as further discussed below. The administrative judge’s earlier
jurisdictional order appropriately detailed the various ways that the appellant could
establish exhaustion. IAF, Tab 3 at 7. However, after receipt of the appellant’s
submissions, the administrative judge advised the parties that the issue of jurisdiction
had not yet been resolved, and that the record indicated that the appellant had attempted
to submit a copy of her OSC complaint in a pleading that had been rejected. IAF,
Tab 17 at 2. Thus, the administrative judge’s order instructed the appellant to resubmit
the OSC complaint. Id. The administrative judge also properly explained that it was
not necessary for the appellant to provide a copy of the detailed decision let ter that she
received from OSC. See Bloom v. Department of the Army, 101 M.S.P.R. 79, ¶ 10
(2006) (stating that, under 5 U.S.C. § 1214(a)(2)(B), OSC’s written statement
containing its summary of relevant facts related to the appellant’s complaint is not
admissible without the consent of the appellant).
4
that a hearing was warranted and proposed a date for the hearing. IAF,
Tabs 21-22.
¶5 Following an unsuccessful attempt at mediation, the appeal was reassigned
to a second administrative judge. IAF, Tab 34. The new administrative judge
ordered the appellant to identify and describe her disclosures with sufficient
specificity such that he could evaluate whether she nonfrivolously alleged that
she made a protected disclosure. IAF, Tab 39 at 1. The appellant responded.
IAF, Tabs 40-41. Without holding the appellant’s requested hearing, the
administrative judge issued an initial decision dismissing the appeal for lack of
jurisdiction. IAF, Tab 43, Initial Decision (ID). In particular, he found that the
appellant failed to establish that she had made protected disclosures of gross
mismanagement or an abuse of authority, and that the Board did not have
jurisdiction over her claims regarding equal employment opportunity (EEO)
matters. ID at 5-6.
¶6 On petition for review, the appellant argues that the administrative judge
ignored the ruling by the first administrative judge that a hearing was warranted.
Petition for Review (PFR) File, Tab 1 at 3-4. The appellant further contends that
the administrative judge failed to address disclosures (2) through (4), as well as
her claim that the agency retaliated against her for perceived whistleblowing. Id.
The agency has responded. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW 4
¶7 The appellant first challenges the administrative judge’s decision to dismiss
her appeal for lack of jurisdiction without holding a hearing when the first
administrative judge had previously found that a hearing was warranted. PFR
File, Tab 1 at 3-4. The issue of jurisdiction is always before the Board, however,
4
We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
5
and may be raised by either party or sua sponte by the Board at any time during a
Board proceeding. Simnitt v. Department of Veterans Affairs, 113 M.S.P.R. 313,
¶ 5 (2010). The second administrative judge provided notice to the parties of a
specific jurisdictional issue that he believed remained unresolved, allowed them
to make submissions addressing the issue, and then he made his jurisdictional
determination based upon the record evidence. IAF, Tabs 39-43. Although, as
explained below, we disagree with certain findings made by the administrative
judge, as well as his conclusion that the Board lacks jurisdiction over the appeal,
we find that it was within his authority to revisit the issue of jurisdiction after he
was assigned the appeal, despite the first administrative judge’s apparent finding
that the Board had jurisdiction over the appeal.
¶8 To establish jurisdiction over an IRA appeal, and the consequent right to a
hearing, an appellant must show by preponderant evidence that she exhausted her
administrative remedies before OSC and make nonfrivolous allegations 5 that
(1) she made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or
engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B),
(C), or (D); and (2) the disclosure or protected activity was a contributing fact or
in the agency’s decision to take or fail to take, or threaten to take or fail to take, a
personnel action as defined under 5 U.S.C. § 2302(a). Salerno v. Department of
the Interior, 123 M.S.P.R. 230, ¶ 5 (2016); see 5 U.S.C. §§ 1214(a)(3),
1221(e)(1). For the following reasons, we find that the appellant has established
jurisdiction over a portion of her retaliation claims, and is therefore entitled to a
hearing on those particular claims.
5
The Board’s regulations define a nonfrivolous allegation as an assertion that, if
proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s). The U.S. Court of
Appeals for the Federal Circuit has found that, in the context of an IRA appeal, a
nonfrivolous allegation is an allegation of “sufficient factual matter, accepted as true, to
state a claim that is plausible on its face.” Hessami v. Merit Systems Protection Board,
979 F.3d 1362, 1364, 1369 (Fed. Cir. 2020).
6
The appellant exhausted her remedies with OSC regarding disclosures (1)
through (4), but not her claim of reprisal for perceived whistleblowing.
¶9 Under 5 U.S.C. § 1214(a)(3), an employee is required to seek corrective
action from OSC before seeking corrective action from the Board through an IRA
appeal. The Board’s jurisdiction is limited to matters raised before OSC. Coufal
v. Department of Justice, 98 M.S.P.R. 31, ¶¶ 14, 18 (2004). The substantive
requirements of exhaustion are met when an appellant has provided OSC with
sufficient basis to pursue an investigation. Chambers v. Department of Homeland
Security, 2022 MSPB 8, ¶ 10. An appellant may demonstrate exhaustion of her
OSC remedies through her initial OSC complaint or other written correspondence
to and from OSC concerning her allegations. Benton-Flores v. Department of
Defense, 121 M.S.P.R. 428, ¶ 6 (2014). In the alternative, exhaustion may be
proved through other sufficiently reliable evidence, such as an affidavit or
declaration attesting that the appellant raised with OSC the substance of the facts
in the MSPB appeal. The appellant must prove exhaustion with OSC by
preponderant evidence, not just present nonfrivolous allegations of exhaustion.
5 U.S.C. § 1204(a)(3); 5 C.F.R. § 1201.57(c)(1).
¶10 Based on our review of the appellant’s OSC complaint and subsequent
correspondence, see IAF, Tab 19, we find that the appellant exhausted her
remedies with OSC with respect to disclosures (1) through (4). 6 To the extent the
administrative judge limited his attention to disclosure (1) only, without
addressing disclosures (2) through (4), we agree with the appellant that this was
error. See Spithaler v. Office of Personnel Management, 1 M.S.P.R. 587, 589
(1980).
¶11 However, we find that the appellant has not shown that she alleged before
OSC that the agency retaliated against her as a perceived whistleblower. We
6
The appellant’s correspondence with OSC describes other alleged disclosures to
agency management, but the appellant has not otherwise referred to those disclosures in
her pleadings before the Board.
7
therefore lack jurisdiction over that claim. See El v. Department of Commerce,
123 M.S.P.R. 76, ¶ 12 (2015) (finding that, even if the Board considered the
appellant’s claim that he was a perceived whistleblower, he failed to establish
jurisdiction over his claim because he failed to exhaust his administrative
remedy), aff’d, 663 F. App’x 921 (Fed. Cir. 2016). While the administrative
judge erred in failing to address the appellant’s claim of retaliation for perceived
whistleblowing, which she also raised in the proceedings below, see IAF, Tab 41
at 6, his error did not prejudice the appellant’s substantive rights. See Panter v.
Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (holding that an
adjudicatory error that is not prejudicial to a party’s substantive rights provides
no basis for reversal of an initial decision).
The appellant has made a nonfrivolous allegation that a portion of disclosure (2)
was protected under 5 U.S.C. § 2302(b)(8).
¶12 We next consider whether the appellant nonfrivolously alleged that her
disclosures were protected under 5 U.S.C. § 2302(b)(8). In conducting this
inquiry, the test is whether a disinterested observer with knowledge of the
essential facts known to or readily ascertainable by the employee could
reasonably conclude that the actions of the agency evidenced a violation of law,
rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of
authority, or substantial and specific danger to public health or safety. Lachance
v. White, 174 F.3d 1378, 1379-81 (Fed. Cir. 1999).
Disclosure 1
¶13 Regarding disclosure (1), which the appellant describes as her “internal”
disclosure, the appellant alleges that in June 2008, she informed the Assistant
Secretary verbally and by email that her then-supervisor was deliberately
mistreating and neglecting the housing authorities in her portfolio and abusing his
authority as a supervisor. IAF, Tab 10 at 13-17, Tab 19 at 14. The OSC
correspondence includes several emails, which the appellant forwarded to the
Assistant Secretary, purportedly showing that her supervisor at that time engaged
8
in gross mismanagement by deliberately placing her on a PIP when she had
timely completed her assignment, and abused his authority by failing to correct an
assignment log and by not similarly penalizing other employees in the same or
similar manner. IAF, Tab 19 at 14-20. In describing disclosure (1), the appellant
further alleged that in 2006 and 2007, she verbally notified another agency
manager that her supervisor failed to rescind the PIP even after admitting that the
system used to log and close her cases was flawed. Id. at 15.
¶14 The appellant’s disagreement with how agency officials managed
performance issues or provided her assignments does not constitute a
nonfrivolous allegation of gross mismanagement. See Cassidy v. Department of
Justice, 118 M.S.P.R. 74, ¶ 8 (2012) (explaining that gross mismanagement is a
management action or inaction that creates a substantial risk of significa nt
adverse impact on the agency’s ability to accomplish its mission). To the extent
the appellant alleged gross mismanagement regarding the supervisor’s oversight
of housing authorities, the information she described under disclosure (1) is too
vague to qualify for protection under 5 U.S.C. § 2302(b)(8). 7
¶15 Similarly, the appellant has provided scant information regarding her
supervisor’s alleged failure to correct an assignment log, nor has she provided
sufficient detail regarding the performance of other employees she alleges should
also have been penalized for deficiencies around the time she was placed on a
PIP. As a result, we find that the appellant has failed to make a nonfrivolous
allegation that she disclosed an abuse of authority. See Wheeler v. Department of
Veterans Affairs, 88 M.S.P.R. 236, 241, ¶ 13 (2001) (holding that an abuse of
authority occurs when there is an arbitrary or capricious exercise of power by a
Federal official or employee that adversely affects the rights of any person or that
7
As discussed below, we reach a different conclusion regarding similar allegations set
forth in disclosure (2).
9
results in personal gain or advantage to himself or to preferred other persons).
Accordingly, we find that disclosure (1) is not protected.
Disclosure 2
¶16 The appellant states that in a July 24, 2013 email to agency counsel, she
disclosed abuse of supervisory authority, gross mismanagemen t, and gross waste
of funds on the part of her then-supervisor. IAF, Tab 10 at 18-19, Tab 19
at 66-70. The email includes allegations that the supervisor discriminated against
her on the basis of color and national origin, slandered her, and subjected her to
“emotional gang rape.” IAF, Tab 19 at 67-69. The appellant also alleged that the
supervisor was negligent in his oversight of the housing authorities in the
appellant’s portfolio, in particular the Harris County Public Housing Autho rity
(PHA). Id. at 68-69. The email includes excerpts from and links to a July 9,
2013 news article describing the results of a recent IG audit that uncovered
millions of dollars in fraudulent and wasteful expenditures by the Harris County
PHA, and a July 16, 2013 letter of concern from U.S. Senator Charles Grassley
regarding the results of that audit. Id.; Jon Cassidy, IG says Texas housing
authority is auditors’ nightmare, Washington Examiner (July 9, 2013),
https://www.washingtonexaminer.com/ig-says-texas-housing-authority-is-
auditors-nightmare (last accessed Sept. 6, 2023); Letter from U.S. Senator Chuck
Grassley, Committee on the Judiciary (July 16, 2013), https://blog.chron.com/texa
spolitics/files/2013/07/Grassley-to-HUD-7-16-2013.pdf (last accessed Sept. 6,
2023) (Grassley Letter). 8 In that letter, Senator Grassley quoted with disapproval
the supervisor’s previous assurances that the practices in the Houston field office
were “some of the best throughout the region,” a nd his subsequent statement that
8
Although the appellant does not appear to have submitted the Washington Examiner
article or Grassley Letter in any of her submissions to the Board, we have accessed the
links she provided and confirmed that the excerpts she included in her submission are
accurate. We take official notice of the article and the letter. 5 C.F.R. § 1201.64.
10
“we didn’t expect anything was actually going on here of concern.” Grassley
Letter at 1.
¶17 The appellant’s disclosures concerning alleged discrimination, harassment,
and the creation of a hostile work environment in violation of antidiscrimination
statutes do not constitute protected whistleblowing under 5 U.S.C. § 2302(b)(8)
or protected activity under section 2302(b)(9)(A)(i). See Edwards v. Department
of Labor, 2022 MSPB 9, ¶¶ 10-17, 21-25 (explaining that disclosures pertaining
to matters covered by 5 U.S.C. § 2302(b)(1)(A), even if made outside of the
grievance or EEO process, do not constitute protected whistleblowing activity
under section 2302(b)(8) or section 2302(b)(9)(A)(i)), aff’d, No. 2022-1967,
2023 WL 4398002 (Fed. Cir. July 7, 2023). Furthermore, while we have
considered that harassment by a supervisor may constitute an abuse of authority,
see Ayers v. Department of the Army, 123 M.S.P.R. 11, ¶ 14 (2015), we find that
the appellant’s vague allegations of harassment do not rise to this level. 9
9
To the extent the appellant is alleging that the agency retaliated against her for
protected disclosures made in her two prior Board appeals, we find that the Board lacks
jurisdiction to address those allegations in this appeal. The appellant’s 2013 appeal
concerned a 7-day furlough issued by the agency, but the appellant did not allege in that
appeal that the action was taken in retaliation for her whistleblowing. Vaz v.
Department of Housing and Urban Development, MSPB Docket No. DA-0752-13-0450-
I-1, Initial Appeal File, Tab 28 (Summary of Telephonic Prehearing Conference). Thus,
a claim of retaliation for filing that prior appeal falls under 5 U.S.C.
§ 2302(b)(9)(A)(ii), since it was “other than with regard to remedying a violation ” of
section 2302(b)(8), and it is therefore outside the Board’s jurisdiction in this case. See
Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 7 (2013) (stating that the
Whistleblower Protection Enhancement Act of 2012 extends IRA jurisdiction to claims
arising under 5 U.S.C. § 2302(b)(9)(A)(i), but not section 2302(b)(9)(A)(ii)). The
appellant did allege whistleblowing retaliation in her second appeal, but that appeal was
filed on August 4, 2014, which was after the two personnel actions at issue in this case
had already been taken and after the PIP had been extended. Vaz v. Department of
Housing and Urban Development, MSPB Docket No. DA-3443-14-0579-I-1.
Accordingly, the personnel actions could not have been taken in retaliation for her
attempt to remedy whistleblower retaliation in that appeal. See Orr v. Department of
the Treasury, 83 M.S.P.R. 117, 124 (1999) (holding that when the personnel action
occurred before the protected disclosures the disclosures could not have been a
11
¶18 We find, however, that the appellant nonfrivolously alleged that she
disclosed gross mismanagement by her supervisor regarding the office’s oversight
of the Harris County PHA. Accordingly, we find that this portion of
disclosure (2) is protected under 5 U.S.C. § 2302(b)(8).
Disclosure 3
¶19 Regarding disclosure (3), the appellant asserts that on several occasions
between September 2013 and March 2014, she notified an EEOC administrative
judge of retaliatory harassment and violations of the ADA and other
antidiscrimination laws. IAF, Tab 10 at 20-24, Tab 11, Tab 19 at 6. As noted
above, such disclosures are not protected under section 2302(b)(8).
Disclosure 4
¶20 The appellant alleges that in a June 13, 2014 email to multiple ag ency
officials, including the IG, the Chief Financial Officer, and agency counsel, she
disclosed an abuse of authority, gross mismanagement, and violations of law and
regulation including “multiple infractions of EEO laws, federal regulations, the
negotiated Union contract, [and] HUD’s core values.” IAF, Tab 10 at 24 -25,
Tab 19 at 71. This email, titled “Multiple Violations of EEO laws, Federal laws,”
includes a copy of the appellant’s rebuttal to the results of a management inquiry
into her allegations of ongoing harassment by management. IAF, Tab 19
at 72-140. The attachment describes the appellant’s concerns with the EEO
process and includes documentation about her placement on a PIP, discussions
about a reasonable accommodation, and alleged harassment by her former
supervisor, including, among things, the appellant’s allegation that her supervisor
“pinched” his nipples around her. Id. The appellant also cites a February 5, 2014
email addressed to her second-line supervisor, who had proposed placing the
contributing factor in the action), aff’d per curiam, 232 F.3d 912 (Fed. Cir. 2000)
(Table).
12
appellant on a PIP in a January 29, 2014 email, and the appellant’s email was
copied to the IG. IAF, Tab 10 at 24, Tab 19 at 71-72. In the February 5, 2014
email, the appellant contests the proposal to place her on a PIP based on the
performance appraisal issued by her former supervisor, who had since left the
agency. Id. Both emails are included in full in the appellant’s submissions to
OSC. 10 IAF, Tab 19 at 71-140.
¶21 As previously noted, the appellant’s disclosures of alleged EEO violations
are not protected under 5 U.S.C. § 2302(b)(8). Although the appellant alleges
that she also disclosed violations of other laws, rules, or regulations, she has not
identified any specific provisions. Nor do her allegations clearly implicate an
identifiable law, rule, or regulation separate from her EEO claims. See Baldwin
v. Department of Veterans Affairs, 113 M.S.P.R. 469, ¶ 12 (2010) (stating that the
Whistleblower Protection Act does not require an employee to identify the
particular statutory or regulatory provision that the agency allegedly violated
when her statements and the circumstances of those statements clearly implicate
an identifiable law, rule, or regulation). Furthermore, for the same reasons
discussed above under disclosure (1), supra ¶ 15, we find that the appellant failed
to make a nonfrivolous allegation that her February 5 and June 13, 2014 emails
disclosed gross mismanagement or an abuse of authority by her former
supervisor. Accordingly, we find that disclosure (4) is not protected under
5 U.S.C. § 2302(b)(8).
10
In her response to the Board’s first jurisdictional order, the appellant also describes
two verbal communications with the IG in September 2014. IAF, Tab 10 at 25.
However, the appellant did not refer to those communications in her OSC complaint or
subsequent correspondence with OSC.
13
The appellant nonfrivolously alleged that her disclosure of gross mismanagement
regarding the Harris County PHA was a contributing factor in her supervisor’s
issuance of an unfavorable performance appraisal.
¶22 The appellant alleges that her July 24, 2013 disclosure regarding her
supervisor’s alleged gross mismanagement of the Harris County PHA was a
contributing factor in the issuance of a minimally satisfactory performance
appraisal, which constitutes a personnel action under 5 U.S.C.
§ 2302(a)(2)(A)(viii). One way an appellant may satisfy the contributing factor
element at the jurisdictional stage is by making nonfrivolous allegations that the
official taking the personnel action knew of the protected activity and that the
personnel action occurred within a period of time such that a reasonable person
could conclude that the activity was a contributing factor in the personnel action.
See 5 U.S.C. § 1221(e)(1); Carney v. Department of Veterans Affairs,
121 M.S.P.R. 446, ¶ 7 (2014).
¶23 Here, the appellant alleged before OSC that the agency attorney to whom
she made the disclosure immediately shared the email with unspecified agency
officials, and that her supervisor retaliated for t hat disclosure by giving her a
minimally satisfactory performance appraisal for FY 2013. IAF, Tab 19 at 67.
While the appellant did not specify the names of the agency officials with whom
the agency attorney shared the July 24, 2013 email, her allegations would imply
that the supervisor either received a copy of the email himself or else learned of it
by other means. The appellant further asserts that the supervisor, who has since
left the agency, issued the appraisal in November 2013, approximately 4 months
after the disclosure. Id. These events are close enough in time to support a
conclusion that the disclosure was a contributing factor in the personnel action.
See Scoggins v. Department of the Army, 123 M.S.P.R. 592, ¶ 25 (2016)
(observing that a personnel action that takes place within 2 years of a disclosure
satisfies the knowledge component of the knowledge/timing test). Accordingly,
we find that the appellant is entitled to a hearing regarding her claim that the
14
agency issued her an unfavorable performance evaluation in retaliation for her
protected disclosure.
Although disclosure (4) is not protected under section 2302(b)(8), the appellant’s
communications with the IG constitute protected activity under
section 2302(b)(9)(C).
¶24 While we have found that the appellant did not make a nonfrivolous
allegation that disclosure (4) was protected under 5 U.S.C. § 2302(b)(8), the
record reflects that the February emails at issue were sent to the IG. Under the
broadly worded provision of 5 U.S.C. § 2302(b)(9)(C), disclosing information to
an agency’s IG or to OSC is protected regardless of the content of the appellant’s
complaints, as long as such disclosures are made “in accordance with applicable
provisions of law.” Hence, we find that the appellant has made at least a
nonfrivolous allegation that she engaged in protected activity for purposes of an
IRA appeal.
The appellant nonfrivolously alleged that her protected activity was a
contributing factor in her placement on a PIP.
¶25 We also find that the appellant nonfrivolously alleged that her
communications with the IG were a contributing factor in a personnel action.
Specifically, the appellant alleged before OSC that the agency retaliated against
her for those communications by placing her on a PIP. IAF, Tab 19 at 9 (OSC
complaint form). In this regard, the record includes a screenshot of a March 27,
2014 email from the Acting Director of the Houston Field Office, notifying the
appellant of her placement on a PIP. IAF, Tab 40 at 118-19. The screenshot
shows that the PIP was attached to the email, but the PIP document does not
appear to have been submitted to the Board by either party. Id. at 118. The
appellant further asserts that on July 28, 2014, her second-line supervisor—who
had first referenced the possibility of placing her on a PIP and who was also the
recipient of the February 5, 2014 email discussed above—notified her that the PIP
was being extended. See IAF, Tab 10 at 9. The agency submitted a copy of the
15
July 28, 2014 memorandum extending the PIP for an additional 60 days. IAF,
Tab 8 at 55-64. Based on all of the above, we find that the appellant has made a
nonfrivolous allegation that the agency placed her on a PIP on March 27, 2014 .
Moreover, it is well settled that a PIP is considered a personnel a ction for
purposes of an IRA appeal. See, e.g., Hudson v. Department of Veterans Affairs,
104 M.S.P.R. 283, ¶ 15 (2006).
¶26 While it is unclear which official made the final decision to impos e a PIP,
the record indicates that the managers who received the February 5 and June 13
emails, which were also addressed to the IG, were involved either in
implementing the PIP or considering the appellant’s response after the possibility
of placing the appellant on a PIP had been raised. IAF, Tab 19 at 71-73, Tab 40
at 118-19. Moreover, the March 27 and July 28, 2014 notifications regarding the
PIP and its extension were both issued within a few weeks or months after the
emails in question. Under these circumstances, we find that the appellant has a
made a nonfrivolous allegation that she engaged in protected activity under
5 U.S.C. § 2302(b)(9)(C) that was a contributing factor in the agency’s decision
to place her on a PIP. 11 The appellant has therefore established jurisdiction and is
entitled to a hearing on that claim.
11
The appellant is also alleging that the agency repeatedly threatened to place her on a
PIP, including in a January 29, 2014 email and during a conference call held on the
same date. IAF, Tab 1 at 4-5, 15-17, 50-52. To the extent she is claiming that
communications regarding placing her on a PIP constituted threatened personnel
actions, from our review of the record we find that she has failed to make a
nonfrivolous allegation that any agency statements in this regard rose to the level of
threats to take personnel actions, as defined in 5 U.S.C. § 2302(a)(2). Further, while
the appellant questions whether the March 27, 2014 PIP was ever implemented, it
appears that she may actually be arguing that the agency violated various procedures
when it notified her of the PIP, and that this casts doubt on the validity of the action.
IAF, Tab 10 at 8-10; IAF, Tab 40 at 117-19. On remand, the administrative judge
should determine if there is a dispute regarding whether the PIP ever went into effect,
and if so, he should accept evidence and argument on the issue and make findings as
necessary.
16
The appellant has nonfrivolously alleged that her July 24, 2013 disclosure was a
contributing factor in her placement on the March 27, 2014 PIP.
¶27 As discussed above, we have found that the appellant made a nonfrivolous
allegation that the supervisor who gave her the minimally satisfactory
performance appraisal for FY 2013 either received a copy of the appellant’s
July 24, 2013 email (disclosure 2) or otherwise learned of the email. The
appellant admits that the supervisor who gave her that appraisal was no longer a
Federal employee as of January 6, 2014; however, she asserts that her second-line
supervisor and the Acting Director of the Houston Field Office used the appraisal
to put her on the PIP. IAF, Tab 19 at 9. Record evidence supports her
contention, as the Acting Director sent the March 27, 2014 email notifying the
appellant that she was being placed on a PIP, he attached a copy of her final
FY 13 performance rating along with the PIP, and he stated that the PIP was
“required as a result of your marginally successful rating.” IAF, Tab 40 at 118.
¶28 Even assuming the individuals who placed the appellant on the PIP were
unaware of the appellant’s July 24, 2013 disclosure, because we have found that
the appellant made a nonfrivolous allegation that this disclosure was a
contributing factor in the FY 13 performance appraisal and the appraisal led
directly to the appellant being placed on a PIP approximately 8 months later, we
find that the appellant has made a nonfrivolous allegation that the disclosure was
a contributing factor in the PIP. See Marano v. Department of Justice, 2 F.3d
1137, 1143 (Fed. Cir.1993) (finding that the contributing factor standard is met if
an employee can demonstrate “that the fact of, or the conten t of, the protected
disclosure was one of the factors that tended to affect in any way the personnel
action”).
Conclusion
¶29 We find that the appellant has made nonfrivolous allegations that the part of
the July 24, 2013 email regarding her supervisor’s alleged gross mismanagement
concerning the Harris County PHA was a protected disclosure and was a
17
contributing factor in the FY 13 performance appraisal and the March 27, 2014
PIP, and she has further nonfrivolously alleged that the February 5 and June 13,
2014 emails to the OIG were protected activity and were a contributing factor in
the PIP.
ORDER
¶30 For the reasons discussed above, we remand this case to the Dallas Regional
Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.