The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES A. CORRIVEAU, SR., DOCKET NUMBER
Appellant, PH-1221-14-0377-B-1
v.
DEPARTMENT OF THE NAVY, DATE: September 6, 2023
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
James G. Noucas, Jr., Esquire, Portsmouth, New Hampshire, for the
appellant.
Debra M. Evans, Esquire, Norfolk, Virginia, 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 remand initial decision,
which denied his request for corrective action in this individual right of action
(IRA) appeal. For the reasons discussed below, we GRANT the appellant’s
petition for review, VACATE the remand initial decision, FIND that the appellant
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
made some protected disclosures that were contributing factors in certain
personnel actions, and REMAND the case to the regional office for further
adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant was a Pipefitter at the agency’s Portsmouth Naval Shipyard,
Naval Facilities Engineering Command (NAVFAC). Corriveau v. Department of
the Navy, MSPB Docket No. PH-1221-14-0377-W-1, Initial Appeal File (IAF),
Tab 1 at 2. On May 25, 2010, he and three of his coworkers sent a letter to
U.S. Senators Susan Collins and Olympia Snowe alleging that their supervisors
were illegally retaliating against them and requesting an investigation into their
behavior. IAF, Tab 49 at 33-36. Approximately 3 days later, on or about
May 28, 2010, the appellant contacted the NAVFAC Headquarters Inspector
General (IG) Hotline and asserted that he and some of his coworkers in the Public
Works Department believed that they were experiencing “endless harassment” at
the hands of their supervisors. Id. at 17-19.
¶3 In response to the letter to Senators Collins and Snowe, the agency held a
meeting on June 15, 2010, which was attended by all four signees, as well as the
Production Division Manager, R.G.; a Labor Relations Specialist, C.M.; and the
Chief Steward, C.R. Id. at 40, 42; Hearing Transcript, Day 1 (HT1) at 159
(testimony of R.G.); Hearing Transcript, Day 2 (HT2) at 316 (testimony of the
appellant), 486 (testimony of C.M.). On July 28, 2010, the appellant sent a
follow-up letter to Senator Collins stating that R.G., who had been identified as
one of the retaliators, was present at the meeting, that nothing was resolved at the
meeting, and that he still was experiencing whistleblower retaliation. IAF,
Tab 49 at 46.
¶4 Thereafter, the appellant filed a Board appeal on July 21, 2010, challenging
his nonselection for a Performance Assessment Representative (PAR) position
and raising whistleblower retaliation. See Corriveau v. Department of the Navy,
3
MSPB Docket No. PH-3443-10-0542-I-1, Initial Decision (0542 ID) (Sept. 27,
2010); IAF, Tab 1 at 59-60. The administrative judge issued an initial decision
dismissing the appeal on September 27, 2010, finding that the appellant failed to
allege any basis for the Board’s jurisdiction. Id. The appellant did not seek
review and, as a result, the initial decision became the Board’s final decision. Id.
at 3.
¶5 In the meantime, the appellant filed a complaint with the Office of Special
Counsel (OSC) in mid-September 2010. IAF, Tab 4 at 20. He alleged that the
agency took several actions against him as a result of his protected disclosures.
IAF, Tab 1 at 64-65, Tab 4 at 34. He also claimed that he overheard R.G. stating
on July 28, 2010, that the four June 15, 2010 meeting participants had “bullseyes
on their backs” and that he intended to “get every one of them.” IAF, Tab 1
at 64-65. On November 30, 2010, OSC issued a close-out letter advising the
appellant that it had terminated its inquiry into his allegations and that he had the
right to seek corrective action from the Board within 65 days after the date of the
letter. IAF, Tab 4 at 10. He did not file a Board appeal at that time.
¶6 In September and October 2012, the appellant contacted several elected
representatives and raised complaints concerning the alleged illegal practices of
his supervisors. IAF, Tab 49 at 52-55. He then subsequently filed a second
complaint with OSC on March 21, 2013. IAF, Tab 1 at 27. Therein, he named
R.G. and the Head of the Public Works Department, J.W., as the responsible
agency officials. Id. at 21. He included the personnel actions that he alleged in
his 2010 complaint and also asserted the following: (1) he was denied training
since February 2011; (2) he applied for and was offered a PAR position, but he
declined the position because it was temporary; and (3) he was not selected for
16 positions between December 4, 2011, and December 20, 2012. Id. at 38-40,
101-29. In a September 16, 2013 letter responding to the complaint, OSC advised
the appellant that it would “not revisit the allegatio ns and personnel actions
that . . . [were] already analyzed in connection with [his] prior complaint.” Id.
4
at 11. In its September 30, 2013 letter closing the file, OSC stated that the
personnel actions included in the appellant’s complaint were nonselections for
several positions, denial of the opportunity to serve as an acting supervisor, and
the agency’s failure to pay him an on-the-spot award. Id. at 9.
¶7 On November 25, 2013, the appellant filed this IRA appeal. Id. at 1. The
administrative judge held the requested hearing and issued an initial d ecision
denying his request for corrective action. IAF, Tab 67, Initial Decision (ID). The
appellant petitioned for review of the initial decision and the Board issued a
Remand Order, vacating the decision. Corriveau v. Department of the Navy,
MSPB Docket No. PH-1221-14-0377-W-1, Remand Order (Sept. 4, 2015). In the
Remand Order, the Board ordered the administrative judge, among other things,
to identify the alleged personnel actions and protected disclosures properly before
the Board in the appeal, to reexamine the contributing factor evidence, to make
credibility findings of key witnesses, and to perform a clear and convincing
analysis under Whitmore v. Department of Labor, 680 F.3d 1353 (Fed. Cir. 2012),
paying special attention to the strength of the agency’s motive to retaliate in light
of the apparent direct evidence and other circumstantial evidence of R.G.’s
retaliatory animus. Remand Order, ¶¶ 13-15, 18-22.
¶8 On remand, the administrative judge did not open the record except to seek
a copy of the appellant’s 2010 OSC complaint, and she issued a remand initial
decision that again denied the appellant’s corrective action request. Corriveau v.
Department of the Navy, MSPB Docket No. PH-1221-14-0377-B-1, Remand File,
Tab 8, Remand Initial Decision (RID). She found that 6 of the 8 disclosures that
the appellant made were protected under 5 U.S.C. § 2302(b)(8), that the appellant
proved that his protected disclosures were a contributing factor in 3 of the
17 alleged personnel actions properly before the Board in the appeal, and that the
agency showed by clear and convincing evidence that it would have taken the
3 personnel actions in the absence of his disclosures. RID at 7-26.
5
¶9 The appellant has filed a petition for review of the remand initial decision,
primarily arguing that the administrative judge failed to comply with several of
the Board’s instructions in the Remand Order, including its instructions to
perform a sound credibility analysis of significant witnesses and to perform a
clear and convincing analysis in accordance with Whitmore. Remand Petition for
Review (RPFR) File, Tab 1. The agency has filed a response in opposition, to
which the appellant has replied. RPFR File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶10 It is undisputed that all of the personnel actions at issue here took place
prior to the December 27, 2012 enactment of the Whistleblower Protection
Enhancement Act (WPEA). IAF, Tab 1 at 36-40, Tab 15 at 6-7. Therefore, the
pre-WPEA standards concerning the scope of an IRA appeal apply to this appeal. 2
See Scoggins v. Department of the Army, 123 M.S.P.R. 592, ¶ 7 (2016); Rebstock
Consolidation v. Department of Homeland Security, 122 M.S.P.R. 661, ¶¶ 7-8
(2015).
¶11 Under pre-WPEA law, after establishing the Board’s jurisdiction, as the
appellant did here, he then must establish a prima facie case of whistleblower
retaliation by proving by preponderant evidence that he made a protected
disclosure that was a contributing factor in a personnel action taken against him.
Scoggins, 123 M.S.P.R. 592, ¶ 8. If the appellant meets that burden, then the
Board shall order such corrective action unless the agency shows by clear and
convincing evidence that it would have taken the same personnel action in the
absence of the protected disclosure. Id.
2
During the pendency of this appeal, the National Defense Authorization Act for Fiscal
Year 2018 (NDAA), Pub. L. No. 115-91, 131 Stat. 1283, was signed into law on
December 12, 2017. Section 1097 of the NDAA amended various provisions of title 5
of the United States Code. Our decision to remand this appeal and our findings herein
would be the same under both pre- and post-NDAA law.
6
The appellant established that he made disclosures protected under 5 U.S.C.
§ 2302(b)(8).
¶12 Pre-WPEA law defined a protected disclosure as a disclosure of information
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) (2011); Scoggins, 123 M.S.P.R. 592, ¶ 11. 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). Scoggins, 123 M.S.P.R. 592, ¶ 11. To establish that he
made a protected disclosure, 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, he must show that the matter disclosed was one
that a reasonable person in his position would have believed evidenced any of the
situations specified in 5 U.S.C. § 2302(b)(8). Id.
¶13 The appellant identified the following eight protected disclosures, labeled
Disclosures A-H, that he exhausted before OSC in connection with this appeal:
(A) disclosures made in his May 25, 2010 letter to Senators Collins and Snow e
and his May 28, 2010 complaint to the IG hotline; (B) disclosures made during
the June 15, 2010 meeting held in response to the May 25, 2010 letter to Senators
Collins and Snowe; (C) disclosures contained in the appellant’s July 7, 2010 letter
to Senator Collins; (D) disclosures made during the course of the appellant’s 2010
Board appeal and his 2010 OSC complaint; (E) disclosures made in his September
and October 2012 letters to several elected representatives; (F) disclosures made
during a discussion with the NAVFAC’s Head of Safety on September 15, 2010;
(G) disclosures made during a meeting with the Shipyard Commander and J.W. in
May 2011; and (H) disclosures concerning mold made in 2010 or 2011, and then
7
again in an all-hands meeting on March 6, 2013. IAF, Tab 1 at 31-35, Tab 49
at 4-5.
The appellant has shown that Disclosures A, B, C, D, E, and F are
protected.
¶14 Disclosure A consists of the appellant’s May 25, 2010 letter to Senators
Collins and Snowe and his May 28, 2010 complaint to the IG hotline. IAF, Tab 1
at 31, 45-58, Tab 49 at 17-19. 3 In these disclosures, the appellant complains of
“endless harassment” by his supervisors in retaliation for “speak[ing] up,”
including, among other things, denying them high pay for duties performed under
hazardous conditions, denying them the opportunity to receive fill-in time, i.e.,
the opportunity to be an acting supervisor, overlooking them for several positions,
eliminating their break room, and yelling and screaming at them in certain
instances. IAF, Tab 1 at 31, 45-48, Tab 49 at 17-19.
¶15 Concerning his complaint about high pay, the appellant failed to sp ecify the
law, rule, or regulation the agency allegedly violated when he made the
disclosure. However, an employee need not identify a statutory or regulatory
provision by title or number to receive protection under the whistleblower
protection laws when the employee’s statements and the circumstances of those
statements clearly implicate an identifiable law, rule, or regulation. See Langer v.
Department of the Treasury, 265 F.3d 1259, 1266 (Fed. Cir. 2001). The appellant
only needs to show that he reasonably believed that his disclosure evidenced one
of the conditions set forth in 5 U.S.C. § 2302(b)(8). Chavez v. Department of
Veterans Affairs, 120 M.S.P.R. 285, ¶ 18 (2013). In the May 25, 2010 letter to
Senators Collins and Snowe, the appellant and the other signees wrote that an
3
Because pre-WPEA standards apply to this appeal, the appellant cannot obtain
corrective action in this appeal for reprisal based on his 2010 complaint to the IG
hotline as protected activity under 5 U.S.C. § 2302(b)(9)(C); rather, the Board only may
order corrective action for reprisal as a result of a prohibited personnel practice
described in section 2302(b)(8). See Rebstock Consolidation, 122 M.S.P.R. 661, ¶ 7;
Colbert v. Department of Veterans Affairs, 121 M.S.P.R. 677, ¶ 7 (2014).
8
employee is entitled to high pay when they are “asked to perform duties under
hazardous conditions,” and they claimed that their supervisors would give it to
other employees, but not to them. IAF, Tab 1 at 45. During the proceedings,
C.M., a Labor Relations Specialist, testified that there is a specific regulation in
the Code of Federal Regulations (5 C.F.R. § 532.511) that outlines when work
situations warrant high pay and that he discussed the regulation with the union,
the appellant, and some of his coworkers. HT2 at 492-93. Under these
circumstances, we find that the appellant disclosed a matter that a reasonable
person in his position believed evidenced a violation of the regulation concerning
high pay. See Mogyorossy v. Department of the Air Force, 96 M.S.P.R. 652,
¶¶ 12-13 (2004) (finding that the appellant’s disclosure concerning the agency’s
failure to give its employees breaks was protected despite his failure to identify
the specific law, rule, or regulation that the agency allegedly violated ); Berkley v.
Department of the Army, 71 M.S.P.R. 341, 351-52 (1996) (finding that the
appellant made a protected disclosure when he complained to the IG and his
supervisors that he improperly was denied overtime pay).
¶16 Further, 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 results in personal gain or advantage to himself
or preferred other persons. See Herman v. Department of Justice, 115 M.S.P.R.
386, ¶ 11 (2011). The Board has held that harassment by a supervisor may
constitute an abuse of authority. See, e.g., Ayers v. Department of the Army,
123 M.S.P.R. 11, ¶¶ 14-20 (2015); Herman, 115 M.S.P.R. 386, ¶¶ 11-12; Murphy
v. Department of the Treasury, 86 M.S.P.R. 131, ¶ 6 (2000). Here, four
employees signed the letter to the Senators requesting an investigation into their
supervisors’ alleged retaliatory behavior, claiming that they believed that the
ongoing harassment they were experiencing was illegal. IAF, Tab 1 at 45. They
supported their assertions with several acts of alleged retaliation. Id. at 45-48.
Under these circumstances, we find that the appellant disclosed a matter that a
9
reasonable person in his position believed evidenced an abuse of authority.
Herman, 115 M.S.P.R. 386, ¶¶ 11-12.
¶17 Disclosure B includes disclosures that the appellant made during the
June 15, 2010 meeting held in response to the May 25, 2010 letter to Senators
Collins and Snowe. IAF, Tab 1 at 31. The appellant states that R.G. was present
at the meeting and heard “first hand [their] complaints about his actions and
practices that [they] felt were illegal and inappropriate from the way he treated
[them] as employees to, more importantly, hiring and promotion practices .” Id.;
HT2 at 318-19 (testimony of the appellant). R.G. testified that the signees voiced
their concerns during the meeting, including their concerns about leadership
training and advancement, a hostile work environment, and retaliation. HT1
at 159-62. Under these circumstances, we find that the appellant disclosed a
matter that a reasonable person in his position believed evidenced a violation of a
law, rule, or regulation, or an abuse of authority. See Herman, 115 M.S.P.R. 386,
¶¶ 11-12; Murphy, 86 M.S.P.R. 131, ¶¶ 6-7.
¶18 Disclosure C consists of disclosures contained in the appellant’s July 7,
2010 letter to Senator Collins. IAF, Tab 1 at 32, Tab 49 at 34. In the letter, the
appellant referenced his May 25, 2010 letter to Senators Collins and Snowe, and
stated that R.G., who had been identified as one of the retaliators, was present at
the meeting and that nothing was resolved. IAF, Tab 49 at 34. He also stated
that the whistleblower retaliation was ongoing, and he listed several personnel
actions that he believed were retaliatory. Id. Under these circumstances, we find
that the appellant disclosed a matter that a reasonable person in his position
believed evidenced a violation of whistleblower protection laws or an abuse of
authority. See Herman, 115 M.S.P.R. 386, ¶¶ 11-12; Mogyorossy, 96 M.S.P.R.
652, ¶¶ 12-13; Murphy, 86 M.S.P.R. 131, ¶¶ 6-7.
¶19 Disclosure D consists of disclosures made during the course of the
appellant’s 2010 Board appeal and his 2010 OSC complaint. IAF, Tab 1 at 32-33.
In his 2010 Board appeal, he challenged his nonselection for the PAR position
10
and raised an affirmative defense of whistleblower reprisal. IAF, Tab 1 at 32,
59-60; 0542 ID. In his 2010 OSC complaint, he alleged that the agency took
several actions against him as a result of his protected disclosures. IAF, Tab 1
at 64-65, Tab 4 at 34.
¶20 Because pre-WPEA standards apply to this appeal, it is immaterial whether
the appellant’s 2010 Board appeal and OSC complaint constitute protected
activity under 5 U.S.C. § 2302(b)(9)(A)(i) or (C). See Colbert v. Department of
Veterans Affairs, 121 M.S.P.R. 677, ¶ 7 (2014). Nevertheless, the disclosures
contained in his 2010 OSC complaint can be considered under 5 U.S.C.
§ 2302(b)(8)(B)(i). See id., ¶ 8 (explaining that, under pre-WPEA law,
disclosures contained in an OSC complaint can be protected under
section 2302(b)(8)); see also 5 U.S.C. § 2302(b)(8)(B)(i) (2011). The appellant’s
OSC complaint raised the substance of his disclosures contained in the May 25,
2010 letter to Senators Collins and Snowe and detailed R.G.’s harassment. IAF,
Tab 1 at 63-64, Tab 4 at 34. For the reasons stated above, we find that the
appellant disclosed a matter that a reasonable person in his position believed
evidenced a violation of the regulation concerning high pay or an abuse of
authority. See Herman, 115 M.S.P.R. 386, ¶¶ 11-12; Mogyorossy, 96 M.S.P.R.
652, ¶¶ 12-13.
¶21 Disclosure E consists of disclosures made in his September and
October 2012 letters to several elected representatives detailing the alleged illegal
practices of his supervisors and requesting an investigation into their actions.
IAF, Tab 1 at 33, 67-70, Tab 49 at 52-55. In these letters, the appellant voiced
his concerns, among other things, about the illegal hiring practices within
NAVFAC, including nepotism and the canceling and reposting of vacancy
announcements when R.G.’s and J.W.’s preferred candidates did not make the
certificate of eligibles. IAF, Tab 1 at 67-70. In his appeal, the appellant included
a “Nepotism Chart,” in which he listed several individuals within NAVFAC who
he claimed received their position as a result of nepotism. IAF, Tab 49 at 94 -95.
11
Under these circumstances, we find that the appellant disclosed a matter that a
reasonable person in his position believed evidenced a violation of a law, rule, or
regulation. See Becker v. Department of Veterans Affairs, 76 M.S.P.R. 292, 297
(1997) (explaining that disclosures that agency officials did not post job
announcements, but instead hired friends and relatives, constituted claims of
nepotism and violation of law that may form the basis for an IRA appeal); see
also McDonnell v. Department of Agriculture, 108 M.S.P.R. 443, ¶¶ 10-13 (2008)
(finding that the appellant had made a nonfrivolous allegation of statutory
violations of law when she made a disclosure about hiring and selection
improprieties).
¶22 Disclosure F includes disclosures that the appellant made during a
discussion with the NAVFAC’s Head of Safety on September 15, 2010 , regarding
safety concerns about unsafe scaffolding. IAF, Tab 1 at 34. The appellant
testified that he informed the Head of Safety that the scaffolding as erected,
which was approximately 27 to 30 feet above the work floor, was moving and not
safe, and that the Head of Safety immediately agreed. HT2 at 333. J.W. testified
that, partly as a result of the “scaffolding incident,” the appellant’s immediate
supervisor, D.W., was removed from his supervisory position. Id. at 403. R.G.
agreed that the scaffolding at issue was a reason for the supervisor’s downgrade
and also agreed that that the scaffolding was “unsafe.” HT1 at 223-34.
¶23 Concerning a disclosure of a substantial and specific danger to public health
or safety, the inquiry into whether a disclosed danger is sufficiently substantial
and specific to warrant protection under whistleblower protection laws is guided
by several factors, including (1) “the likelihood of harm resulting from the
danger,” (2) “when the alleged harm may occur,” and (3) “the nature of the
harm,” i.e., “the potential consequences.” Chambers v. Department of the
Interior, 515 F.3d 1362, 1369 (Fed. Cir. 2008). Under these circumstances, we
find that the appellant disclosed a matter that a reasonable person in his position
believed evidenced a substantial and specific danger to public health or safety
12
because the appellant, or one of his coworkers, could have suffered substantial
injury had he fallen off the scaffolding or had the scaffolding collapsed. See
Chavez, 120 M.S.P.R. 285, ¶ 21 (finding that disclosures regarding failure to
change a patient’s dressings were protected, regardless of whether harm actually
occurred, because the potential harm was readily foreseeable ).
The appellant has failed to show that Disclosures G and H are protected.
¶24 Disclosure G concerns disclosures that the appellant made during a meeting
with the Shipyard Commander and J.W. in May 2011. IAF, Tab 1 at 34. During
the meeting, the appellant raised concerns that NAVFAC had not had a safety
meeting since he joined. Id. Although the appellant claimed that the lack of a
safety meeting violated an agency practice or polic y, he did not show that it
violated a law, rule, or regulation. Id. Under these circumstances, we find that
the appellant has failed to meet his burden of showing that this disclosure is
protected under 5 U.S.C. § 2302(b)(8). See Chavez, 120 M.S.P.R. 285, ¶ 24
(finding that the appellant’s disclosure of a violation of agency policy or practice,
as opposed to a law, rule, or regulation, is not protected under
section 2302(b)(8)).
¶25 Disclosure H consists of disclosures that the appellant made in 2010 or
2011, and then again on March 6, 2013, regarding his concerns with mold in
certain areas of Building 43 in the Public Works Shop. IAF, Tab 1 at 34; HT2
at 335-36. Although the appellant generally claims that he discussed the mold
problem with R.G. at various times starting in “roughly 2010, 2011,” he does not
allege specifics regarding the conversations, including what he said and when he
said it. IAF, Tab 1 at 34; HT2 at 336. An appellant’s disclosures must be
specific and detailed, not vague allegations of wrongdoing. See Linder v.
Department of Justice, 122 M.S.P.R. 14, ¶ 14 (2014). The appellant’s disclosures
13
here during the 2010 and 2011 timeframe do not meet this standard and,
therefore, we find that they are not protected under 5 U.S.C. § 2302(b)(8). 4
The appellant established that the agency took several personnel actions under
5 U.S.C. § 2302(a)(2)(A) against him.
¶26 Here, the appellant alleged that the agency took several personnel actions
against him as a result of his protected whistleblowing, including numerous
nonselections, denial of fill-in time and leadership training, and a delay or denial
of an on-the-spot award. IAF, Tab 1 at 36-40. Under pre-WPEA law, the
definition of “personnel action” included, among other things, the following: a
promotion; a detail, transfer, or reassignment; and “a decision concerning pay,
benefits, or awards, or concerning education or training if the education or
training may reasonably be expected to lead to an appointment, promotion,
performance evaluation, or other [personnel] action.” 5 U.S.C.
§ 2302(a)(2)(A)(ii), (iv), and (ix) (2011).
¶27 After reviewing the record, including documents related to the appellant’s
two OSC complaints and his grievances, we find that the following 17 actions
constitute personnel actions under 5 U.S.C. § 2302(a)(2)(A) that are properly
before the Board in this appeal because they were exhausted before OSC for the
first time in his second complaint and were not the subject of a grievance:
(1) nonselection for a Production Shop Planner position, which he applied to on
November 30, 2011; (2) nonselection for a Production Control position, which he
applied to on December 4, 2011; (3) nonselection for an Engineering Technician
4
As to his disclosure concerning the mold problem during an all -hands meeting held on
March 13, 2013, we find this disclosure irrelevant, as it took place several months after
the latest personnel action in this appeal and could not have been a contributing factor
in any of the personnel actions at issue. See Davis v. Department of Defense,
106 M.S.P.R. 560, ¶ 12 (2007) (holding that, because the complained-of personnel
action predated the protected disclosure, there is no way that the disclosu re could have
contributed to the personnel action), aff’d sub nom. Davis v. Merit Systems Protection
Board, 278 F. App’x 1009 (Fed. Cir. 2008). Therefore, we will not address this
disclosure further.
14
position, which he applied to on December 9, 2011; (4) nonselection for an
Industrial Engineering Technician position, which he applied to on January 20,
2012; (5) nonselection for a PAR position, which he applied to on February 10,
2012; 5 (6) nonselection for a Utilities Billing Analyst position, which he applied
to on February 14, 2012; (7) nonselection for an Engineering Technician position,
which he applied to on February 19, 2012; (8) nonselection for an Engineering
Technician position, which he applied to on May 16, 2012; (9) nonselection for
an Administrative Specialist position, which he applied to on May 22, 2012;
(10) nonselection for a Maintenance Supervisor position, which he applied to on
June 4, 2012; (11) nonselection for a PAR position, which he applied to on
September 9, 2012; (12) nonselection for a PAR position, which he applied to on
November 2, 2012; (13) nonselection for a Base Support Vehicles and Equipment
Site Director position, which he applied to on November 25, 2012;
(14) nonselection for a Utilities Billing Analyst position, which he appli ed to on
December 4, 2012; (15) denial of fill-in time; i.e., the opportunity to be an acting
supervisor, between November 2011 and August 2012; (16) denial or delay of an
on-the-spot award in September 2010; 6 and (17) denial of leadership training on
February 5, May 11, and August 9, 2011. 7 IAF, Tab 1 at 36-40, Tab 49 at 5-6, 57,
208-09.
5
The appellant identified his nonselection for a temporary PAR position, which he
applied to on July 25, 2011, as a personnel action at issue. IAF, Tab 1 at 38. However,
we find that the appellant has not proven that the agency took a personnel action ag ainst
him here because he asserted that he voluntarily decided to decline the agency’s offer of
the position. Id.
6
In his petition for review, the appellant claims, contrary to the administrative judge’s
conclusion, that his on-the-spot award was denied—not delayed. RPFR File, Tab 1
at 22-24. On remand, the administrative judge shall reexamine the evidence pertaining
to the on-the-spot award and, after making the relevant credibility determinations,
decide whether the personnel action at issue is a dela y or a denial of the award.
7
In the remand initial decision, the administrative judge analyzed “harassment” as a
separate personnel action. RID at 26-27. Although the Board has found that the
15
The appellant met his burden of showing that his protected disclosures were a
contributing factor in four of the personnel actions taken against him.
¶28 An employee who establishes that he made a protected disclosure has the
additional burden of proving by preponderant evidence that his disclosure was a
contributing factor in the covered personnel actions. See Shibuya v. Department
of Agriculture, 119 M.S.P.R. 537, ¶ 22 (2013). The most common way of proving
that a disclosure was a contributing factor in a personnel action is the
knowledge/timing test. Shannon v. Department of Veterans Affairs, 121 M.S.P.R.
221, ¶ 23 (2014). Under that test, an appellant can prove the contributing factor
element through evidence that the official taking the personnel action knew of the
whistleblowing disclosure and took the personnel action within a period of time
such that a reasonable person could conclude that the disclosure was a
contributing factor in the personnel action. Id. An appellant may establish an
official’s constructive knowledge of a protected disclosure by demonstrating that
an individual with actual knowledge of the disclosure influenced the official
accused of taking the retaliatory action. Aquino v. Department of Homeland
Security, 121 M.S.P.R. 35, ¶ 19 (2014). The U.S. Supreme Court has adopted the
term “cat’s paw” to describe a case in which a particular management official,
acting because of an improper animus, influences an agency official who is
unaware of the improper animus when implementing a personnel action . Id.
(citing Staub v. Proctor Hospital, 562 U.S. 411 (2011)).
creation of a hostile work environment may constitute a per sonnel action under
5 U.S.C. § 2302(a)(2)(A) if it meets the statutory criteria, i.e., constitutes a significant
change in duties, responsibilities, or working conditions , see Skarada v. Department of
Veterans Affairs, 2022 MSPB 17, ¶ 16, we need not address that question here.
Specifically, each of the actions alleged by the appellant that comprise a potential
hostile work environment claim constitute individual personnel actions under 5 U.S.C.
§ 2302(a)(2)(A)(ii), (iv), and (ix), and have been analyzed as su ch. Accordingly, those
actions would not also constitute “any other” significant change in duties,
responsibilities, or working conditions under 5 U.S.C. § 2302(a)(2)(A)(xi) (2011).
16
¶29 Here, the appellant alleges that R.G. and J.W. were the retaliating officials.
IAF, Tab 1 at 36. We found above that Disclosures A, B, C, D, E, and F were
protected under 5 U.S.C. § 2302(b)(8). Based on the record, including witness
testimony, we find that R.G. was aware of Disclosures A, B, and F prior to the
dates of the personnel actions at issue and that J.W. was aware of Disclosures A
and E prior to the dates of the personnel actions at issue. HT1 at 158-62, 168,
170, 224 (testimony of R.G.); HT2 at 383-84, 404 (testimony of J.W.). As to
Disclosures C and D, we find that the appellant did not show that either R.G. or
J.W. was aware of the disclosures prior to the taking of the personnel actions at
issue. HT1 at 168, 170 (testimony of R.G.).
The appellant established that his protected disclosures were a
contributing factor in personnel actions 10, 15, 16, and 17.
¶30 The record shows, as to personnel action 10 (nonselection for a
Maintenance Supervisor position), that R.G. was the chairman of the selection
board and that J.W. was the selecting official. IAF, Tab 36 at 25, 35; HT1
at 198-200 (testimony of R.G.). The appellant applied and the selection took
place less than 2 years after Disclosures E and F. IAF, Tab 35 at 4, Tab 37 at 26 ,
Tab 49 at 91. Under these circumstances, we find that the appellant has shown
that his nonselection occurred within a period of time such that a reasonable
person could conclude that his protected disclosures were a contributing factor in
the personnel action under the knowledge/timing test. 8 See Schnell v. Department
of the Army, 114 M.S.P.R. 83, ¶ 22 (2010) (finding that a personnel action taken
8
Because we find that the decision makers had actual knowledge of the appellant’s
protected disclosures regarding this nonselection, a cat’s paw analysis is not necessary
for the appellant to meet his burden on contributing factor. Nevertheless, on remand,
when the administrative judge performs her clear and convincing analysis, she shall
consider the appellant’s arguments concerning the irregularities in the selection process,
R.G.’s influence over the selection process and panel, and the likelihood that J.W.
would accept R.G.’s recommendation without question. RPFR File, Tab 1 at 12 -13.
17
within approximately 1 to 2 years of the appellant’s disclosures satisfies the
knowledge/timing test).
¶31 As to personnel actions 15 (denial of fill-in time), 16 (delay or denial of an
on-the-spot award), and 17 (denial of leadership training), R.G. testified that he
made or had the discretion to make the decision to deny or delay these personnel
actions, all of which took place within 2 years of the appellant’s protected
disclosures. HT1 at 140, 142, 153, 185; IAF, Tab 1 at 36-38. We similarly find,
therefore, that the appellant has shown that these personnel actions occurred
within a period of time such that a reasonable person could conclude that his
protected disclosures were a contributing factor in them under the
knowledge/timing test. Schnell, 114 M.S.P.R. 83, ¶ 22.
The appellant failed to establish that his protected disclosures were a
contributing factor in personnel actions 1-9 and 11-14.
¶32 Although the appellant generally alleges that R.G. and J.W. played a role in
all of the nonselections at issue, he has not shown that they were involved in
taking personnel actions 1-9 and 11-14 or that they influenced the decision
makers in any way. 9 RPFR File, Tab 1 at 4.
¶33 Concerning personnel actions 1 and 9 (his nonselections for a Production
Shop Planner position and an Administrative Specialist position), he stated that
he made the certificate of eligibles but was never interviewed for the positions.
IAF, Tab 1 at 38-39. However, he did not present any evidence regarding the
nonselections, including who made the decisions concerning interviews. In the
9
Although there are 14 nonselections at issue in this appeal, the administrative judge
stated for the record prior to the start of the second day of the hearing that the
appellant’s prime focus of his appeal was personnel action 10 (his nonselection for a
Maintenance Supervisor position). HT2 at 298-99. The appellant’s attorney agreed
with this statement and the appellant, during his testimony, agreed as well. HT2 at 299,
306. As a result, the appellant focused much of the hearing on the Maintenance
Supervisor nonselection and presented scant evidence concerning the other
nonselections at issue in this appeal. HT1, HT2.
18
absence of any evidence concerning either R.G.’s or J.W.’s involvement in or
influence over the selection process, he fails to meet his burden that his protected
disclosures were a contributing factor in the nonselections. See Salinas v.
Department of the Army, 94 M.S.P.R. 54, ¶¶ 10-12 (2003).
¶34 Concerning personnel actions 2-8 and 11-12 (his nonselections for a
Production Control position, three Engineering Technician positions, an Industrial
Engineering Technician position, a Utilities Billing Analyst position, and three
PAR positions), he stated, without more, that he “[n]ever received an eligibility
letter and [was] never interviewed.” IAF, Tab 1 at 39. Concerning personnel
action 13 (his nonselection for a Base Support Vehicles and Equipment Site
Director), the appellant stated that he was found ineligible even though his
resume supported his eligibility for the position and, concerning personnel action
14 (his nonselection for a Utilities Billing Analyst position), he stated that he was
informed that there was a sufficient number of veterans who applied and that,
therefore, his application was not rated. Id. at 40. He did not present any further
evidence regarding these nonselections.
¶35 The agency, however, presented unrebutted testimony from a Human
Resources (HR) Specialist that the appellant’s supervisors were not involved in
determining whether an applicant was eligible for a position and whether an
application package had been rated highly enough to be placed on a certificate of
eligibles. HT2 at 408, 413-16, 421-22. Rather, such determinations were made
exclusively by the agency’s HR Services Center for the Northeast . HT2 at 413.
In the absence of any evidence concerning either R.G.’s or J.W .’s involvement in
or influence over the selection process, he fails to meet his burden that his
protected disclosures were a contributing factor in these nonselections. See
Salinas, 94 M.S.P.R. 54, ¶¶ 10-12.
19
Remand is necessary to determine whether the agency showed by clear and
convincing evidence that it would have taken personnel actions 10, 15, 16, and 17
in the absence of the appellant’s protected disclosures.
¶36 In determining whether an agency has met its burden of showing by clear
and convincing evidence that it would have taken the same personnel actions in
the absence of the protected disclosures, 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 Carr v. Social
Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). The Board does
not view these factors as discrete elements, each of which the agency must prove
by clear and convincing evidence. Rather, the Board will weigh the factors
together to determine whether the evidence is clear and convincing as a whole.
McCarthy v. International Boundary and Water Commission, 116 M.S.P.R. 594,
¶ 44 (2011), aff’d, 497 F. App’x 4 (Fed. Cir. 2012).
¶37 In its Remand Order, the Board found that, although the administrative
judge made no explicit credibility findings regarding R.G.’s testimony, she
significantly relied on his testimony in making her findings. Remand Order, ¶ 18.
The Board noted that it shared the appellant’s concern regarding the
administrative judge’s finding that the “bullseye” comment, standing alone, was
insufficient to establish a pattern of harassment from which reta liatory animus
could be inferred, and it indicated that a single incident may have compelling
evidentiary value. Id., ¶ 20. It also indicated that the context surrounding the
“bullseye” comment was especially troubling. Id. It therefore concluded that the
administrative judge’s finding that the appellant failed to show any retaliatory
motive was overly dismissive and contrary to the guidance set forth in Whitmore.
20
Id. As a result, the Board remanded the appeal and instructed the administrative
judge to reconsider the strength of the agency’s motive to retaliate, examining the
totality of the evidence presented in the appeal , and to address the credibility of
key witnesses. Id., ¶ 18 n.9, ¶ 21. It further instructed the administrative judge
to especially consider the appellant’s arguments in which he identifie d a series of
acts that began shortly after his initial protected disclosure, including the letter of
reprimand and the performance appraisal conducted by R.G. a few days after the
“bullseye” comment. Id., ¶ 21.
¶38 In the remand initial decision, however, the administrative judge did not
make any explicit credibility determinations regarding R.G. ’s testimony. While
she did not credit his denial of making the “bullseye” comment, she nevertheless
implicitly credited his testimony in finding either that the appellant failed to meet
his burden on contributing factor or that the agency met its clear and convincing
burden. RID at 23-28. Further, the administrative judge made no explicit
findings as to the agency’s motive to retaliate in the remand initial decision, and
she once again summarily concluded that the “bullseye” comment did not
establish a pattern of harassment directed at the appellant. RID at 28; Remand
Order, ¶ 20. In reaching her conclusion, she did not examine, as instructed, the
appellant’s arguments in which he identified a series of acts that began shortly
after making Disclosure A, including the letter of reprimand and the performance
appraisal conducted by R.G. a few days after the “bullseye” comment. Remand
Order, ¶ 21. Therefore, we find that the administrative judge did not fully
address the appellant’s arguments and evidence in this case that lend support to
his claim that the agency did not prove by clear and convincing evidence that it
would have taken the same personnel actions in the absence of his disclosures.
Accordingly, we remand the appeal for further adjudication c onsistent with this
Remand Order. See Durr v. Department of Veterans Affairs, 119 M.S.P.R. 195,
¶¶ 7-15 (2013).
21
¶39 On remand, the administrative judge shall examine, under Whitmore,
whether the agency met its burden of showing by clear and convincing evidence
that it would have taken the following personnel actions in the absence of the
appellant’s protected disclosures: (10) nonselection for a Maintenance
Supervisor position; (15) denial of fill-in time; (16) delay or denial of an
on-the-spot award; and (17) denial of leadership training. In conducting her
analysis, the administrative judge shall make explicit credibility determinations
of key witnesses (especially R.G. and J.W.), perform an analysis of the Carr
factors, reconsider the record as a whole, and make thoroughly reasoned findings
that address both the evidence supporting her conclusions and the countervailing
evidence. See Whitmore, 680 F.3d at 1374-76.
ORDER
¶40 For the reasons discussed above, we remand this case to the 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.