finding that protected disclosures may relate to imminent violations of law not yet carried out
How later courts described this case
- finding that protected disclosures may relate to imminent violations of law not yet carried out
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TAMARA WILLIAMS, DOCKET NUMBER
Appellant, DC-1221-16-0475-W-2
v.
DEPARTMENT OF VETERANS DATE: September 8, 2023
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Michelle F. Bercovici, Esquire, Washington, D.C., for the appellant.
David R. Scruggs, Washington, D.C., 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 petition for review , VACATE the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
initial decision, and REMAND the case to the Washington Regional Office for
further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant was a GS-14 Contract Specialist for the agency who resigned
effective December 31, 2015. Williams v. Department of Veterans Affairs, MSPB
Docket No. DC-1221-16-0475-W-2, Appeal File (W-2 AF), Tab 10 at 8. On
April 6, 2016, the appellant filed an IRA appeal and requested a hearing.
Williams v. Department of Veterans Affairs, MSPB Docket No. DC-1221-16-
0475-W-1, Initial Appeal File (IAF), Tab 1 at 2, 6-11. The administrative judge
ordered the appellant to list the protected disclosures and personnel actions that
she was claiming and identify the specific places in her Office of Special Counsel
(OSC) complaint in which she raised these issues. W-2 AF, Tabs 35-36. He
instructed her to produce the lists in a particular format, specified the information
that she was to include, and emphasized the need for brevity. W-2 AF, Tab 35.
The appellant responded with a seven-page document setting forth 12 disclosures
and 17 personnel actions. 2 W-2 AF, Tab 41 at 5-11. She included nearly 900
pages of exhibits. W-2 AF, Tab 41 at 12-327, Tabs 42-46.
¶3 The case was subsequently reassigned to a different administrative judge,
who issued an initial decision dismissing the appeal for lack of jurisdiction
because the appellant failed to make a nonfrivolous allegation that she made a
protected disclosure. W-2 AF, Tab 50, Tab 51, Initial Decision (ID) at 1, 10.
The administrative judge did not address the list of personnel actions that the
appellant submitted in response to the jurisdictional order. Instead, he addressed
the appellant’s original OSC complaint in which she raised several alleged
disclosures of improprieties in the agency’s handling of contracts. ID at 5-6. The
2
The appellant raised some of these alleged personnel actions as part of a hostile work
environment claim, rather than as individual personnel actions in their own right.
W-2 AF, Tab 41 at 10-11.
3
administrative judge analyzed these claims and concluded that the appellant failed
to raise a nonfrivolous allegation that she made an y protected disclosures. ID
at 6-10.
¶4 The appellant has filed a petition for review stating that the initial decision
was in error and requesting that the Board hold the processing of her petition in
abeyance pending the outcome of her equal employment opportunity complaints.
Petition for Review (PFR) File, Tab 1at 4-7. She requests, alternatively, a 30-day
extension to file a brief in support of her petition. Id. at 6. The agency has filed
a response. PFR File, Tab 3.
ANALYSIS
The appellant’s request to hold the processing of her claim in abeyance is denied .
¶5 In her petition for review, the appellant requests that the Board refrain from
ruling on her petition until the Equal Employment Opportunity Commission
(EEOC) has issued a final decision in a related case. PFR File, Tab 1 at 6. She
asserts that the resolution of her claims before the EEOC may render moot or
resolve the issues in the instant appeal. Id. We disagree. Although the
appellant’s equal employment opportunity complaint may pertain to the same
personnel actions at issue in her IRA appeal, the EEOC lacks ju risdiction over
whistleblower claims, Ron W. v. Department of Veterans Affairs, EEOC Appeal
No. 0120161855, 2016 WL 6156255, *3 (Oct. 11, 2016), and so the issues to be
decided by the Board and the EEOC are necessarily distinct. Considering the
Board’s statutory mandate to expedite the proceedings before it, 5 U.S.C.
§ 7701(i)(4), we find insufficient basis to grant the appellant’s request.
Accordingly, her request is denied. The appellant’s request for an extension to
file a supplemental briefing is also denied. See 5 C.F.R. § 1201.114(b)
(explaining that a petition for review must state a party’s objection to the initial
decision, including all of the party’s factual and legal arguments).
4
The appellant has established jurisdiction over her appeal.
¶6 The Board has jurisdiction over an IRA appeal if the appellant exhausts her
administrative remedies before OSC and makes nonfrivolous allegation s that:
(1) she engaged in activity protected under 5 U.S.C. § 2302(b)(8) or (b)(9)(A)(i),
(B), (C), or (D); and (2) the activity was a contributing factor in the agency ’s
decision to take, fail to take, or threaten to take a personnel action as defined by
5 U.S.C. § 2302(a). Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 6
(2014). Once an appellant has established Board jurisdiction over her appeal, she
is entitled to a hearing on the merits in which she will have the opportunity to
prove her claim by preponderant evidence. Iyer v. Department of the Treasury,
95 M.S.P.R. 239, ¶ 6 (2003), aff’d, 104 F. App’x 159 (Fed. Cir. 2004).
¶7 A nonfrivolous allegation of a protected disclosure is an allegation of facts
that, if proven, would show that the appellant disclosed a matter that a reasonable
person in her position would believe evidenced one of the categories of
wrongdoing specified in 5 U.S.C. § 2302(b)(8). Salerno v. Department of the
Interior, 123 M.S.P.R. 230, ¶ 6 (2016). To satisfy the contributing factor
criterion at the jurisdictional stage, an appellant only need raise a nonfrivolous
allegation that the fact of, or content of, the protected disclosure or activity was
one factor that tended to affect the personnel action in any way. Id., ¶ 13. Under
the knowledge/timing test, an appellant may nonfrivolously allege that the
disclosure or activity was a contributing factor in a personnel action through
circumstantial evidence, such as evidence that the official who took the personnel
action knew of the disclosure or activity and that the personnel action occurred
within a period of time such that a reasonable person could conclude that the
disclosure or activity was a contributing factor in the personnel action. See
5 U.S.C. § 1221(e)(1); Salerno, 123 M.S.P.R. 230, ¶ 13. In addition to the
knowledge/timing test, there are other possible ways for an appellant to satisfy
the contributing factor criterion. See Dorney v. Department of the Army,
117 M.S.P.R. 480, ¶¶ 14-15 (2012) (explaining that other evidence relevant to the
5
contributing factor criterion includes the strength or weakness of the agency’s
reasons for taking the personnel action, whether the whistle blowing was
personally directed at the proposing or deciding officials, and whether those
officials had a desire or motive to retaliate).
¶8 On review, the appellant asserts, without explanation, that the initial
decision is based on an erroneous interpretation of the law and contains erroneous
findings of material fact. PFR File, Tab 1 at 4-6. The appellant’s bare assertion
fails to meet the Board’s requirements for the content of a petition for review.
See 5 C.F.R. § 1201.114(b). It constitutes mere disagreement with the initial
decision and therefore provides no basis for us to disturb it. See Weaver v.
Department of the Navy, 2 M.S.P.R. 129, 133-34 (1980), review denied per
curiam, 669 F.2d 613 (9th Cir. 1982). Nevertheless, under 5 C.F.R.
§ 1201.115(e), notwithstanding the sufficiency of a petition for review, the Board
reserves the authority to consider any issue in an appeal before it. Based on our
review of the record in this case, we find that the appellant has, in fact,
established jurisdiction over her appeal and that a remand is warranted. See
Stoglin v. Department of the Air Force, 123 M.S.P.R. 163, ¶ 7 (2015) (finding
that the issue of jurisdiction is always before the Board and may be raised at any
time), aff’d, 640 F. App’x 864 (Fed. Cir. 2016).
¶9 In his initial decision, the administrative judge remarked on the appellant’s
voluminous jurisdictional filings and stated that the Board is not obliged to pore
through them to make sense of her claims, and that one whose submissions lack
clarity runs the risk of being found not to have met her burden. ID at 5 & n.2.
Although we agree with the administrative judge’s remarks in principle, he
appears to have overlooked the listing of disclosures and personnel actions that
the appellant filed in response to the jurisdictional order. W-2 AF, Tab 41
at 5-11. We find that the appellant prepared these lists in accordance with the
administrative judge’s instructions and that they clearly set forth all the elements
6
of her claims as necessary for us to make a jurisdictional determination. 3
W-2 AF, Tabs 35-36, Tab 41 at 5-11.
Disclosure 1
¶10 The appellant alleges that she made a protected disclosure several times
between March 22 and May 9, 2013, concerning work on expired construction
contracts. W-2 AF, Tab 41 at 5, Tab 44 at 6-7. Specifically, she claims she
disclosed that the agency “improperly ordered to open 20 expired contracts, make
modifications to the original scope of work, and extend the period of performance
dates.” W-2 AF, Tab 41 at 5. According to the appellant, the agency’s actions
violated, among other things, the “bona fide needs rule” of 31 U.S.C. § 1502,
which provides that “[t]he balance of an appropriation or fund limited for
obligation to a definite period is available only for payment of expenses properly
incurred during the period of availability . . . .” Id. at 5 & n.2. In other words,
“[f]iscal year appropriations may properly be obligated only for bona fide needs
actually existing within the fiscal year sought to be charged.” 33 Comp. Gen. 90
(Aug. 20, 1953). The appellant explains that, if the agency uses expired funds to
pay for additional work not required in the original contracts, it may violate the
3
Although our review of this case is at the jurisdictional stage, we note that certain of
the appellant’s disclosures appear to reflect her belief that, if she had followed some of
the agency’s instructions, she would have had to violate a law, rule, or regulation. At
the time that the appellant filed this appeal, 5 U.S.C. § 2302(b)(9)(D) made it a
prohibited personnel practice to take an action against an employee for “refusing to
obey an order that would require the individual to violate a law.” The U.S. Court of
Appeals for the Federal Circuit considered this provision and held that “law” only
included statutes, and not rules and regulations. See Rainey v. Merit Systems Protection
Board, 824 F.3d 1359, 1364-65 (Fed. Cir. 2016). However, on June 14, 2017, the
President signed the Follow the Rules Act into law. Pub. L. No. 115 -40, 131 Stat. 861
(2017). The Act amends section 2302(b)(9)(D) to provide whistleblower protection for
individuals who refuse to obey an order that would require the violation of a law, rule ,
or regulation. Nevertheless, the Board has determined that this expansion does not
apply retroactively to cases pending at the time the Act was enacted, and so it does not
change the analysis in this case. Fisher v. Department of the Interior, 2023 MSPB 11,
¶¶ 12-19.
7
bona fide needs rule. W-2 AF, Tab 41 at 5 n.2. We find that the appellant has
made a nonfrivolous allegation that she reasonably believed that she disclosed a
violation of law. 4
Disclosure 2
¶11 The appellant alleges that on June 25 and 26, 2013, she disclosed that an
agency official signed and issued a notice to proceed for contactors to perform
additional work even though this official lacked delegated contracting authority.
W-2 AF, Tab 41 at 5. She claims that the official’s actions violated 48 C.F.R.
§ 1.602-3(a), defining “unauthorized commitment” as an agreement that i s not
binding solely because the Government representative who made it lacked the
authority to do so. Id. However, we find that this subsection is definitional in
nature and is therefore not capable of being violated. Furthermore, as set forth in
the following subsection, there is no prohibition against creating unauthorized
commitments. 48 C.F.R. § 1.602-3(b). Therefore, the appellant has not made a
nonfrivolous allegation that she reasonably believed the agency committed any
wrongdoing with respect to an unauthorized commitment. Nevertheless,
construing the appellant’s allegation generously, it appears that she may be
alleging a violation of 48 C.F.R. § 836.213-70(a), 5 which provides that a notice to
proceed must be provided by the “contracting officer” for construction
contractors to begin work. A contracting officer is a person with the authority to
enter into, administer, or terminate contracts and to make related determinations
and findings. 48 C.F.R. § 2.101. The appellant asserts that the official who
4
The appellant also alleges that the agency’s actions violated other unspecified
“principles,” including unspecified Federal Acquisition Regulations (codified in
relevant part at 48 C.F.R. chapters 1, 8). W-2 AF, Tab 41 at 5. This vague, conclusory
allegation, even read in conjunction with the supporting materials that the appellant
cites, does not rise to the level of a nonfrivolous allegation. See El v. Department of
Commerce, 123 M.S.P.R. 76, ¶ 6 (2015), aff’d, 663 F. App’x 921 (Fed. Cir. 2016).
5
See 73 Fed. Reg. 2712-01, 2760 (Jan. 15, 2008). This regulation is no longer in effect.
See 84 Fed. Reg. 9968-01, 9972 (Mar. 19, 2019).
8
issued the notice to proceed was not a contracting officer and lacked delegated
authority to act as one. W-2 AF, Tab 41 at 5. We therefore find that the
appellant made a nonfrivolous allegation that she disclosed what she reasonably
believed to be a violation of 48 C.F.R. § 836.213-70(a). See Kalil v. Department
of Agriculture, 96 M.S.P.R. 77, ¶ 16 (2004) (finding that it is not always
necessary to identify a specific law, rule, or regulation to make a nonfrivolous
allegation of a protected disclosure concerning a violation of the same).
Disclosure 3
¶12 The appellant alleges that on July 31 and August 1, 2013, she filed a hotline
complaint with the agency’s Office of Inspector General, alleging various acts of
agency malfeasance. W-2 AF, Tab 41 at 6. Under 5 U.S.C. § 2302(b)(9)(C),
disclosing information to an Inspector General, in accordance with applicable
provisions of law, constitutes protected activity without regard to the contents of
the disclosure. We therefore find that the appellant made a nonfrivolous
allegation that she engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C).
Disclosure 4
¶13 The appellant alleges that, on August 6 and 23, 2013, she disclosed that two
officials were serving in GS-13 contractor positions, and were acting as managers
or supervisors, without the required credentials (Federal Acquisition
Certifications in Contracting). W-2 AF, Tab 41 at 6. According to the
appellant’s complaint to OSC, this violates 41 U.S.C. § 433, 6 which authorizes
the Office of Federal Procurement Policy (OFPP) to establish requirements for
jobs in the 1102 occupational series. Id. at 6, 18. We find that the law that the
appellant cites merely authorizes the OFPP to establish qualifications for t he
1102 job series, and could therefore not have been violated as she alleges.
Furthermore, we have reviewed OFPP’s related materials, but we were not able to
6
Section 433 of Title 41 of the United States Code is now at 41 U.S.C. § 1703.
9
locate a requirement that these GS-13 positions require the certifications in
question. Office of Management and Budget, OFPP Letter 05-01, ¶ 8(b)(1)-(2)
(Apr. 15, 2005), https://obamawhitehouse.archives.gov/omb/procurement_policy_
letter_05-01 (last visited Sept. 7, 2023). We therefore find that the appellant has
failed to make a nonfrivolous allegation that she reasonably believed that this
disclosure evidenced a violation of law or any other categ ory of Government
wrongdoing under 5 U.S.C. § 2302(b)(8)(A).
Disclosure 5
¶14 The appellant alleges that on September 24 and October 3, 2013, she
disclosed that the agency was ordering her to sign a contract for a procurement
that had not been conducted in accordance with the Federal Acquisition
Regulations and in accordance with a recent audit from the Office of Inspector
General. W-2 AF, Tab 41 at 6. She alleges that this disclosure evidenced a
violation of 48 C.F.R. §§ 1.602-1(b), 803.104-7(a), 803.602, 7 and Department of
Veterans Affairs, Veterans Health Administration (VHA) Handbook 1002.02,
Minor Construction Program. 8 W-2 AF, Tab 41 at 6-7. According to the
appellant, the agency attempted to coerce her into signing a contract that was
missing eight required pieces of information. W-2 AF, Tab 45 at 26. The record
does not appear to contain adequate information for us to determine whether the
contract in question actually required these eight pieces of information, or if they
were in fact missing, as the appellant alleges. However, the appellant is not
required to prove her claim at the jurisdictional stag e—only to make a
7
Sections 803.104-7(a), 803.602 of Title 48 of the Code of Federal Regulations, see
73 Fed. Reg. 2712-01, 2731 (Jan 15, 2008), are no longer in effect, see 83 Fed. Reg.
16206-01, 16208 (Apr. 16, 2018).
8
The VHA has since rescinded the November 8, 2012 version of the Handbook in effect
at the time of the appellant’s alleged disclosures. VHA Directive 1002.02, VHA Minor
Construction Program at 1 (Aug. 23, 2022), https://www.va.gov/vhapublications/ViewP
ublication.asp?pub_ID=9917 (last visited Sept. 7, 2023).
10
nonfrivolous allegation thereof. Smart v. Department of the Army, 98 M.S.P.R.
566, ¶ 9, aff’d, 157 F. App’x 260 (Fed. Cir. 2005); 5 C.F.R. § 1201.57. We find
that if the facts that the appellant alleges are true, she could reasonably have
concluded that the agency was ordering her to violate at least 48 C.F.R.
§§ 1.602-1(b), which provides that no contract shall be entered into unless the
contracting officer ensures that all legal requirements and other applicable
procedures have been met. See Reid v. Merit Systems Protection Board, 508 F.3d
674, 677 (Fed. Cir. 2007) (finding that protected disclosures may relate to
imminent violations of law not yet carried out).
Disclosure 6
¶15 The appellant alleges that between October 8 and 11, 2013, she disclosed
that she was issued a performance appraisal for a period of less than 90 days.
W-2 AF, Tab 41 at 7. She claims that the agency’s actions violated 5 U.S.C.
§ 2302(b)(12), the applicable collective bargaining agreement, and provisions of
VA Directive 5013. Id. It is not clear to us how the appellant’s allegations, even
if true, could evidence a violation of 5 U.S.C. § 2302(b)(12), which prohibits
personnel actions that violate laws concerning the merit syst em principles of
5 U.S.C. § 2301(b). However, we find that the appellant might have reasonably
believed that the agency’s actions were in violation of VA Directive 5013/8, Pt. I,
§ 7(a), https://www.va.gov/vapubs/viewPublication.asp?Pub_ID=211 (last visited
Sept. 7, 2023), which provides that “[t]he minimum appraisal period is
90 calendar days under a performance plan.” The record seems to show that the
agency issued the appellant two interim performance appraisals for periods of less
than 90 days. W-2 AF, Tab 41 at 294, 297. Although the Directive appears to
apply the 90-day minimum appraisal period only to final appraisals, we find that
the appellant, who is presumably not well versed in Federal personnel law, could
nevertheless have reasonably understood the requirement to apply to interim
11
appraisals as well. 9 See Mithen v. Department of Veterans Affairs, 122 M.S.P.R.
489, ¶ 24 (2015) (finding that a disclosure that does not identify any actual
wrongdoing under 5 U.S.C. § 2302(b)(8) is nevertheless protected if the appellant
reasonably believed that it did), aff’d, 652 F. App’x 971 (Fed. Cir. 2016). We
therefore find that the appellant has made a nonfrivolous allegation of a protected
disclosure based on her belief that the agency had violated VA Directive 5013/8,
Pt. I, § 7(a).
Disclosure 7
¶16 The appellant alleges that on October 31 and November 1, 2013, she
disclosed various acts of agency malfeasance to the Office of Inspector General.
W-2 AF, Tab 41 at 7. We find that the appellant’s disclosure of information to an
Inspector General would constitute protected activity under 5 U.S.C.
§ 2302(b)(9)(C). 10 We therefore find that she has made a nonfrivolous allegation
that these communications with the Inspector General constituted protected
activity.
Disclosure 8
¶17 The appellant alleges that on January 16, 2014, she disclosed to agency
officials that an agency employee had been acting outside the scope of her
authority and misrepresenting herself as a contract ing officer before the U.S.
Civilian Board of Contract Appeals. W-2 AF, Tab 41 at 8. She alleges that, in
this same disclosure, she reported that her reviewing official had downgraded her
9
Our finding is supported by the absence of any clear indication on the performance
appraisal documents that they constituted interim ratings. W-2 AF, Tab 41 at 292-98.
Furthermore, when the appellant raised her concerns to her superior, the Director of
Contracting, it appears that he was unable to provide her an answer without assistance
from Human Resources. W-2 AF, Tab 46 at 490-91.
10
The language of 5 U.S.C. § 2302(b)(9)(C) was expanded by the National Defense
Authorization Act of 2018, Pub. L. No. 115-91, 131 Stat. 1238 (2017). This expansion,
however, does not affect the analysis here.
12
performance evaluation based on the improper “unacceptable” rating given by her
rating official. Id. The appellant explained in her OSC complaint that the rating
official’s mid-year rating had been retracted, but the reviewing official relied
upon it despite that fact. Id. at 18.
¶18 Regarding the first of these allegations, we find that, if an agency official
had misrepresented her position to the U.S. Civilian Board of Contract Appeals,
the appellant could reasonably conclude that some law, rule, or regulation had
been violated. Kalil, 96 M.S.P.R. 77, ¶ 16. We therefore find that she has made
a nonfrivolous allegation of the same.
¶19 As to the second allegation, it appears that the gravamen of this claim is
that the appellant believed that her performance rating was the product of
whistleblower retaliation. W-2 AF, Tab 46 at 21. In other words, she is alleging
that she disclosed a violation of 5 U.S.C. § 2302(b)(8). Whether the appellant
can prove that she had a reasonable belief of this may depend largely on whether
she can prove by preponderant evidence that she reasonably believed that any of
the activities or disclosures discussed above were protected. In any event, we
find that she has alleged sufficient facts at this stage to support a nonfrivolous
allegation.
Disclosure 9
¶20 The appellant alleges that between May 21 and 28, 2014, she disclosed that
the Director of Contracting assigned her to take over the responsibilities of two
positions—supervisor of the Washington, D.C. Commodities Team and supervisor
of the Martinsburg, West Virginia Commodities Team. W-2 AF, Tab 41 at 8.
She claims that this action was improper because the Director failed to provide
her with “adequate resources or compensation” and failed to document the action
officially via a Standard Form 50 or 52. Id. She also asserts that the Director’s
actions were contrary to Office of Personnel Management (OPM) requirements
and were in retaliation for protected whistleblowing. Id. The appellant has not
cited to any law, rule, regulation, or practice that would prohibit the agency from
13
assigning her additional employees to supervise without additional compensat ion.
Nor has she explained what OPM “requirements” were violated or why she
believes that the agency’s action required additional documentation. The
appellant has given us no reason to doubt that assigning her this additional work
was, in itself, within the agency’s sound discretion and lawful authority.
Nevertheless, to the extent that the appellant reasonably believed that the
assignment of additional duties was retaliatory under 5 U.S.C. § 2302(b)(8), and
she actually disclosed this belief, her disclosure may have been protected. We
therefore find that she has raised a nonfrivolous allegation in connection with this
disclosure.
Disclosure 10
¶21 The appellant alleges that on June 16, 2014, she disclosed that the Director
would be violating the agency’s whistleblower protection policy by issuing a
letter of counseling to a Junior Contract Specialist because she believed the letter
to be retaliatory or otherwise improper. W-2 AF, Tab 41 at 8. The Director had
ordered the appellant to prepare the letter based on that Contract Specialist’s
alleged failure to follow instructions. W-2 AF, Tab 46 at 56. The appellant
prepared the letter and returned it to the Director for his signature , but the
Director replied that the appellant would be the one signing the letter. Id.
at 53-55. The appellant refused to sign the letter, stating that she had no direct
involvement in the matter, she was unsure that the Contract Specialist actually
had committed any wrongdoing, and issuing the letter would violate the
Whistleblower Protection Act. Id. at 53.
¶22 Having reviewed the information that the appellant had at the time the
Director ordered her to execute the letter of counseling, we find that she has
failed to make a nonfrivolous allegation that she reasonably believed that the
agency was committing any type of wrongdoing covered under 5 U.S.C.
§ 2302(b)(8)(A). Specifically, the Contract Specialist in que stion approached a
contractor at the Washington, D.C. VA Medical Center and questioned the
14
contractor’s presence in the facility, demanding to see the contract that authorized
him to be there. Id. at 62-63. Word of this encounter reached the Director, wh o
emailed the Contract Specialist and told him that they needed to speak about it.
The Contract Specialist replied, with copies to several Senior Executive Service
(SES) officials and others, explaining his side of the story. Id. at 61-62. The
Director responded, assuring the Contract Specialist that there was a contract
authorizing the contractor to perform his duties at the Medical Center. Id. at 60.
He instructed the Contract Specialist to utilize his chain of command and asserted
that there was no need to include the SES officials in his previous email. Id. The
Director stated that the Contract Specialist had been repeatedly warned about this
issue and that any future infractions would be met with an official counseling. Id.
The Contract Specialist nevertheless replied to the Director, with copies to the
SES officials, complaining about the way the Director was handling the matter
and attempting to justify his own actions. Id. at 59. It was then that the Director
ordered the appellant to issue the letter of counseling. Id. at 58-59. Having
reviewed all this evidence, we find nothing in the Contract Specialist’s last
email—the one for which he was to be counseled—that could reasonably be
construed as a protected disclosure. Id. at 59. Furthermore, it is clear that the
Contract Specialist ignored the Director’s stern warning and blatantly violated his
explicit order not an hour after he had received it. Id. at 59-60. We therefore
find no reasonable basis to conclude that issuing the Contract Specialist a letter of
counseling would be, in any way, improper. The appellant has failed to make a
nonfrivolous allegation that Disclosure 10 was protected.
Disclosure 11
¶23 The appellant alleges that on several dates between June and October, 2014,
she disclosed to agency officials and entities that she was being retaliated against
for whistleblowing activities. W-2 AF, Tab 41 at 9. She claims that she reported
retaliation in the form of a reprimand, a proposed suspension, designation of
certain absences as absence without leave (AWOL), and various other actions.
15
Id. Again, the appellant’s ability to prove by preponderant evidence that this
disclosure was protected may depend on her ability to prove that the disclosures
and activities above were protected. However, at the jurisdictional stage, we find
that she has met her burden of making a nonfrivolous allegation that she
reasonably believed she was disclosing retaliation for her prior whistleblowing .
Disclosure 12
¶24 The appellant alleges that at some point in 2013 or 2014, agency
management received a report of an external audit that uncovered serious
problems with contracts in the Washington, D.C.-area, including a list of 16
expired purchase orders totaling $38,000,000. W-2 AF, Tab 41 at 9, Tab 46
at 65. She states that her superiors knew that she was interviewed in connection
with this audit and perceived her to be a source of information to the auditor.
W-2 AF, Tab 41 at 9. Given the nature of what the appellant alleged that the
audit uncovered, we find that she has made a nonfrivolous allegation that she was
perceived as a whistleblower. See generally King v. Department of the Army,
116 M.S.P.R. 689, ¶ 8 (2011) (explaining the standard for establishing
jurisdiction as a perceived whistleblower).
Personnel Actions and Contributing Factor
¶25 The appellant alleges that the agency took multiple personnel actions
against her in retaliation for her alleged protected activity. W-2 AF, Tab 41
at 10-11. Considering the appellant’s allegations as a whole, we find that she
made a nonfrivolous allegation that the agency subjected her to nine personnel
actions, and, as discussed below, that one or more of her disclosures and/or her
protected activity was a contributing factor in those actions.
¶26 The appellant alleges that on July 11, 2013, the Director failed to select her
for a Supervisory Contract Specialist position in retaliation for Disclosures 1
and 2. Id. at 10. Because the appellant alleges that she made Disclosures 1 and 2
within a few months of her nonselection for promotion, and that the Director
16
knew about these disclosures, we find that she has made a nonfrivolous allegation
under the knowledge/timing test of 5 U.S.C. § 1221(e)(1) that they were a
contributing factor in her nonselection, which is a personnel action under
5 U.S.C. § 2302(a)(2)(A)(ii). W-2 AF, Tab 41 at 5-6; see Mastrullo v.
Department of Labor, 123 M.S.P.R. 110, ¶ 21 (2015) (finding that a period of 1 to
2 years between a disclosure and a personnel action is sufficient t o satisfy the
timing component of the knowledge/timing test). 11
¶27 The appellant alleges that on August 7, 2013, the Construction Team
Manager issued her a mid-point performance evaluation with a rating of
“unacceptable” in retaliation for Disclosures/protected activity 1, 2, and 3.
W-2 AF, Tab 41 at 5-6, 10. However, we find that this mid-point review does
not, in itself, constitute a “personnel action” under 5 U.S.C. § 2302(a)(1)(A).
W-2 AF, Tab 42 at 87-89; see King v. Department of Health and Human Services,
133 F.3d 1450, 1452-53 (Fed. Cir. 1998). Therefore, we will not consider it
further except in connection with the appellant’s hostile work environment claim.
See infra ¶ 35.
¶28 The appellant alleges that on October 16, 2013, the Deputy Director
charged her retroactively with 91 hours of AWOL, pursuant to the Director’s
orders, in retaliation for Disclosures/protected activity 1-3 and 5. 12 W-2 AF,
Tab 3 at 51-52, Tab 5 at 4, Tab 41 at 5-7, 10. The appellant asserts that the
Director and Deputy Director were aware of these disclosures, including
11
All of the personnel actions the appellant alleges were taken, threatened, or not taken
in retaliation for her disclosures/protected activity occurred less than 2 years after the
disclosures. Accordingly, we need not discuss the “timing” aspect of the
knowledge/timing test with regard to each of the actions.
12
The appellant also alleges that Disclosure 4 was a contributing factor in her AWOL.
W-2 AF, Tab 41 at 10. However, because the appellant has failed to make a
nonfrivolous allegation that Disclosure 4 was protected, we need not consider whether
it may have been a contributing factor in this or any other alleged personnel action.
The Director ended up sustaining most, but not all, of the AWOL. IAF, I -2, Tab 5
at 22.
17
Disclosure 3, which was made to the Inspector General. W-2 AF, Tab 41 at 5-7,
10. The Board has found that a charge of AWOL is a decision concerning pay
and therefore constitutes a personnel action under 5 U.S.C. § 2302(a)(2)(A)(ix).
Mc Corcle v. Department of Agriculture, 98 M.S.P.R. 363, ¶ 16 (2005). We find
that the appellant has made a nonfrivolous allegation, under the knowledge/timing
test, that Disclosures/protected activity 1-3 and 5 were a contributing factor in
this personnel action.
¶29 The appellant alleges that on October 16, 2013, the Deputy Director issued
her a proposed letter of reprimand for AWOL in retaliation for Disclosures 1-3
and 5, and the Director upheld the reprimand on February 3, 2014, 13 in retaliation
for Disclosures/protected activity 1-8. W-2 AF, Tab 41 at 10-11. We find that
the reprimand constituted a personnel action under 5 U.S.C. § 2302(a)(2)(A)(iii)
because the agency made it a part of the appellant’s official personnel file and
informed her that it could be considered in any future disciplinary actions and
that she had the right to grieve it. Id. at 22-23; see Rice v. Department of
Agriculture, 97 M.S.P.R. 501, ¶ 15 (2004). The proposed reprimand was a threat
to take a personnel action, and it is therefore also a personnel action covered
under the statute. Finally, we also find that the appellant made a nonfrivolous
allegation, under the knowledge/timing test, that Disclosures /protected activity
1-3 and 5 were a contributing factor in the proposed reprimand, and, since the
appellant alleges that the Director was aware of Disclosures/protected activity 1-3
and 5-8, that these were a contributing factor in his decision to uphold and effect
the reprimand. W-2 AF, Tab 41 at 5-7, 10.
¶30 The appellant alleges that on October 16, 2013, the Deputy Director
revoked her telework privileges on orders from the Director, and that this was in
retaliation for Disclosures/protected activity 1-3 and 5. W-2 AF, Tab 5 at 7,
13
The Director appears to have actually issued the letter of reprimand on January 29,
2014. W-2 AF, Tab 5 at 22-23.
18
Tab 41 at 10. The appellant also alleges that on March 24, 2014, the Director
denied her request to reinstate her telework in retaliation for
Disclosures/protected activity 1-8. W-2 AF, Tab 41 at 11. The Board has found
that cancellation of a telework agreement can be a personnel action under
5 U.S.C. § 2302(a)(2)(A)(xii) to the extent that it constitutes a significant change
in working conditions. Rumsey v. Department of Justice, 120 M.S.P.R. 259, ¶ 23
(2013). We further find that the Director’s denial of the appellant’s request to
reinstate her telework privileges was also a personnel action, in that it was a
failure to approve a significant change in duties. 5 U.S.C. §§ 2302(b)(8), (b)(9)
(prohibiting a failure to take a personnel action in retaliation for a protected
disclosure or protected activity). The appellant has alleged that the Deputy
Director and Director were aware of the disclosures/protected activity at issue
with respect to these actions, and we therefore find that the appellant has made a
nonfrivolous allegation that Disclosures/protected activity 1-3 and 5 were a
contributing factor in the revocation of the appellant’s approval to telework and
that Disclosures/protected activity 1-3 and 5-8 were a contributing factor in the
denial of the request to reinstate telework.
¶31 The appellant alleges that on December 5, 2013, the Construction Team
Manager (her rating official) issued her a final rating for fiscal year 2013 of
“fully successful” with numerous negative comments. W-2 AF, Tab 41 at 10,
292-97. She further alleges that on January 16, 2014, the Director (h er reviewing
official) refused to revise the performance evaluation. W-2 AF, Tab 41 at 10,
Tab 46 at 14-26. The appellant claims that these actions were in retaliation for
Disclosures/protected activity 1-3 and 5-7. W-2 AF, Tab 41 at 10. The issuance
of a final performance evaluation is a personnel action under 5 U.S.C.
§ 2302(a)(2)(A)(viii). The appellant has alleged that either the Construction
Team Manager or the Director, or both, were aware of the disclosures in question,
id. at 5-8, 10, and we therefore find that she has made a nonfrivolous allegation,
19
under the knowledge/timing test, that they were a contributing factor in her final
performance evaluation.
¶32 The appellant contends that on June 1, 2014, the Director ordered her to
take on the duties of two full-time positions in retaliation for
Disclosures/protected activity 1-3 and 5-8. Id. at 11. Specifically, it appears that
the appellant was previously responsible for supervising one team of six
contracting officials for the agency’s Washington, D.C. VA Medical Center, and
on June 1, 2014, she became responsible for the Martinsburg, West Virginia VA
Medical Center as well, with an additional five contracting officials added to her
team. Id. at 76-77, 87. On its face, this appears to represent a significant
increase in the appellant’s workload, and we therefore find that she has made a
nonfrivolous allegation that the agency significantly changed her duties and
responsibilities—a personnel action under 5 U.S.C. § 2302(a)(2)(A)(xii). As
noted above, the appellant has alleged that the Director was aware of
Disclosures/protected activity 1-3 and 5-8, and thus, we find that the appellant
has made a nonfrivolous allegation, under the knowledge/timing test, that these
disclosures/protected activity were a contributing factor in this alleged personnel
action. Id. at 5-9.
¶33 The appellant alleges that, on June 24, 2014, the Deputy Director denied her
request for sick leave and charged her with 1 hour of AWOL in retaliation for
Disclosures/protected activity 1-3 and 5-9. Id. at 11, 54-55. However, it appears
that the Deputy Director approved the request retroactively on July 28, 2014. Id.
at 51. Because the agency completely rescinded this personnel action before the
appellant filed her OSC complaint, we find that we lack jurisdiction to consider it
as a separate personnel action. W-2 AF, Tab 3 at 14, Tab 41 at 12. Cf.
Lachenmyer v. Federal Election Commission, 92 M.S.P.R. 80, ¶ 7 (2002).
Nevertheless, we find that this matter is still relevant for consideration in the
context of the appellant’s claim of a hostile work environment, discussed below.
20
¶34 The appellant alleges that on September 24, 2014, the Director and Deputy
Director proposed to suspend her for 10 days in retaliation for
Disclosures/protected activity 1-3, 5-9, and 11. 14 W-2 AF, Tab 41 at 11, 32-43.
A proposed 10-day suspension is a threatened personnel action under 5 U.S.C.
§ 2302(a)(2)(A)(iii), and, since the appellant has alleged that the Director or
Deputy Director, or both, were aware of the disclosures/protected activity she
raised with respect to this claim we find that the appellant made a nonfrivolous
allegation, under the knowledge/timing test, that Disclosures /protected activity
1-3, 5-9, and 11 were a contributing factor in the proposed suspension. Id. at 5-9.
¶35 The appellant alleges that on December 16, 2014, the Director included a
negative memorandum and progress report in her fiscal year 2014 performance
evaluation in retaliation for Disclosures/protected activity 1-3, 5-9, and 11-12. 15
Id. at 11, 264-76. This performance evaluation is a personnel action under
5 U.S.C. § 2302(a)(2)(A)(viii), and as the appellant has alleged that the Director
was aware of the disclosures/protected activity, the appellant has made a
nonfrivolous allegation of contributing factor under the knowledge/timing test.
Id. at 5-9.
¶36 Finally, the appellant alleges that the agency created a hostile work
environment in retaliation for her protected activity. W-2 AF, Tab 41 at 10-11.
The Board has found that the creation of a hostile work environment may
constitute a personnel action under 5 U.S.C. § 2302(a)(2)(A)(xii) to the extent
that it represents a significant change in duties, responsibilities, or working
14
The appellant also alleges that Disclosure 10 was a contributing factor in the
proposed suspension. W-2 AF, Tab 41 at 11. However, because the appellant has
failed to make a nonfrivolous allegation that Disclosure 10 was protected, we need not
consider whether it may have been a contributing factor in this or any other alleged
personnel action.
15
To the extent that the appellant is claiming the progress report as a separate personnel
action, we find that it is not. W-2 AF, Tab 41 at 11; see King, 133 F.3d at 1452-53.
21
conditions. Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 23 (2015),
overruled in part by Pridgen v. Office of Management and Budget, 2022 MSPB
31, ¶¶ 23-25. To meet this standard, an agency’s actions must, “individually or
collectively, have practical and significant effects on the overall nature and
quality of an employee’s working conditions, duties, or responsibilities .”
Skarada v. Department of Veterans Affairs, 2022 MSPB 17, ¶ 16. In determining
whether a hostile work environment is present, the Board will consider the
totality of the circumstances, including agency actions that may not individually
rise to the level of a personnel action. Id., ¶ 18.
¶37 In this case, the appellant claims that a hostile work environment was
created through the cumulative effect of numerous agency actions, including most
of the personnel actions discussed above, as well as various other actions ,
including verbal berating, an investigation into her computer usage, a change in
office space, exclusion from meetings, and exclusion from the agency’s student
loan repayment and tuition reimbursement programs. W-2 AF, Tab 41 at 10-11.
We find that the appellant has made a nonfrivolous allegation that these
circumstances comprised a hostile work environment for purposes of a pers onnel
action under 5 U.S.C. § 2302(a)(2)(A)(xii). Moreover, because she alleges that
the individuals in her chain of command were aware of her disclosures/protected
activity and took, threatened, or failed to take the actions that created the hostile
work environment, we find that she also has made a nonfrivolous allegation of
contributing factor under the knowledge/timing test. Id. at 5-9.
Exhaustion
¶38 The appellant filed her OSC complaint on July 16, 2014, and supplemented
it with amendments and additional information several times over the ensuing
18 months. W-2 AF, Tab 3 at 39-121, Tab 41 at 12-327, Tabs 42-46. We find
that she raised before OSC all of the disclosures/protected activity and personnel
actions that she now raises in this IRA appeal, and she provided OSC with a
sufficient basis to pursue an investigation. W-2 AF, Tab 3 at 39-121, Tab 41
22
at 12-327, Tabs 42-46; see Chambers v. Department of Homeland Security,
2022 MSPB 8, ¶ 10. The record also contains a copy of OSC’s February 1, 2016
close-out letter, informing the appellant that it was closing its investigation into
her complaint and notifying her of her right to file an IRA appeal with the Board.
W-2 AF, Tab 10 at 5-6. We therefore find that the appellant has proven by
preponderant evidence that she exhausted her administrative remedies.
Conclusion
¶39 For the reasons explained above, we find that the appellant has exhausted
her administrative remedies and made nonfrivolous allegations that the agency
subjected her to numerous personnel actions in retaliation for a number of
protected disclosures and for her communications with the Inspector General,
which were protected activity. Therefore, she has established jurisdiction over
her appeal and is entitled to the merits hearing she requested. See Salerno,
123 M.S.P.R. 230, ¶ 5.
¶40 The issues on remand will include whether the appellant can prove by
preponderant evidence that Disclosures/protected activity 1-3, 5-9, and 11-12
were protected under the statute. The appellant also will need to show that she
did, in fact, suffer the nine personnel actions discussed above, and that her
disclosures/protected activity were a contributing factor therein. If the appellant
proves her case, then the agency will have the opportunity to prove by clear and
convincing evidence that it would have taken the same personnel actions
notwithstanding the protected activity. Id.
23
ORDER
¶41 For the reasons discussed above, we remand this case to the Washington
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.