Alexis Ganz v. Department of Justice

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ALEXIS GANZ, DOCKET NUMBER

Appellant, DE-1221-21-0201-W-1

v.

DEPARTMENT OF JUSTICE, DATE: April 2, 2024

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

William J. Dunleavy , Esquire, Richardson, Texas, for the appellant.

Jeanelle L. Graham , Esquire, Atlanta, Georgia, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

REMAND ORDER

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

which denied her 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 initial decision, and REMAND the case to the

Denver Field Office for further adjudication in accordance with this Remand

Order.

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

BACKGROUND

The appellant is employed as a GS-12 Clinical Psychologist in the agency’s

Bureau of Prison’s Psychology Services at the Federal Correctional Complex

(FCC) in Florence, Colorado. Initial Appeal File (IAF), Tab 13 at 40. According

to the appellant, in October 2020, she informed her first-level supervisors,

the acting and regular FCC Deputy Chiefs of Psychology, that she had tested

positive for COVID-19. IAF, Tab 20 at 5, 41-42, 59, Tab 45 at 34-35.

On October 27, 2020, following a period of quarantine, the appellant

returned to work. IAF, Tab 45 at 8, 34. Upon her return, two FCC staff members

told her that a third staff member had advised them of her COVID-19 diagnosis.

Id. at 35-36. The staff member who shared the appellant’s diagnosis was not her

supervisor and did not work in Psychology Services. Id. at 35. Around the same

time, an agency employee transferred into the FCC Chief Psychologist position,

thus becoming the appellant’s new second-level supervisor. IAF,

Tab 20 at 16-17.

Between November 5 and 9, 2020, the appellant reported to an Assistant

Human Resources Manager, a Special Investigative Agent, and a Health Services

Administrator, among others, that she believed the agency improperly disclosed

her medical information in violation of the Health Insurance Portability and

Accountability Act (HIPAA) and the Privacy Act after she learned that other staff

knew about her COVID-19 diagnosis. IAF, Tab 45 at 8. On November 6, 2020,

the Health Services Administrator reported to the appellant’s first- and

second-level supervisors that the appellant had alleged the agency violated

HIPAA and was “demanding an investigation.” IAF, Tab 12 at 22, Tab 20 at 6,

17-18. The appellant’s supervisors also learned that same day, from a different

agency employee, that the appellant had published an article that discussed her

prior internship in the Bureau of Prisons and identified her as a current employee.

IAF, Tab 20 at 7, 18, 22, Tab 13 at 37. The article appeared to lack required

agency approval. IAF, Tab 20 at 22-27. On November 17, 2020, the appellant’s

3

first- and second-level supervisors issued the appellant a counseling memorandum

for publishing the article without the authorization required by agency policy.

IAF, Tab 20 at 7, 18, 23, Tab 13 at 37.

On November 30 or December 1, 2020, an inmate informed the agency

that he had reported suicidal ideations to the appellant the prior day. IAF,

Tab 13 at 31, Tab 45 at 8. According to the inmate, the appellant ignored this

report and failed to complete a suicide risk assessment, after which the inmate

harmed himself. IAF, Tab 13 at 31-32. The Associate Warden (AW), who was

the appellant’s third-level supervisor, referred the matter to the agency’s Office

of Internal Affairs (OIA) for investigation on December 2, 2020. IAF,

Tab 20 at 36-37, Tab 45 at 10. That same day, at the direction of the AW,

the appellant’s second-level supervisor placed the appellant on administrative

non-clinical duties. IAF, Tab 13 at 29, Tab 20 at 18-19, 38. The administrative

judge found, and the parties do not dispute on review, that this assignment

involved work at the level of a GS-7 Psychology Technician and regular

augmentation. IAF, Tab 73, Initial Decision (ID) at 2-3; IAF, Tab 20 at 38.

“Augmentation” within the agency means ordering employees whose positions do

not primarily involve security duties to perform the duties of a correctional

officer. IAF, Tab 52, Hearing Recording (HR), Day 1, Track 8 (testimony of the

appellant’s second-level supervisor).

The appellant filed a complaint with the Office of Special Counsel (OSC)

alleging that in retaliation for her Privacy Act and HIPAA disclosures, the agency

issued her the November 17, 2020 counseling memorandum, initiated the OIA

investigation, assigned her to administrative duties, which included performing

correctional officer duties, informed her that she was “no longer a psychologist,”

and subjected her to a hostile work environment. IAF, Tab 1 at 9,

Tab 12 at 21-24. After OSC closed its investigation, the appellant filed this

appeal. IAF, Tab 1 at 1, 9.

4

The administrative judge advised the appellant of her jurisdictional burden

and instructed her to file evidence and argument regarding the jurisdictional

issue. IAF, Tab 3. After the parties responded, the administrative judge found

that the appellant exhausted her OSC remedy and otherwise established

jurisdiction over the above disclosures and some of the alleged personnel actions.

IAF, Tabs 12, 15, Tab 24 at 3-5. The administrative judge determined that the

memorandum of counseling and OIA investigation were not personnel actions

within the Board’s IRA jurisdiction. IAF, Tab 34 at 6-7.

After holding a 3-day hearing, the administrative judge issued an initial

decision in which she found that the appellant proved that she made protected

disclosures and was subjected to personnel actions. ID at 5, 8-9.

The administrative judge concluded that the appellant failed to prove her prima

facie case of whistleblower reprisal because she did not show that her protected

disclosures were a contributing factor in the AW’s decision to place her on

administrative duties because he was unaware of her disclosures. ID at 9-10.

In so holding, the administrative judge credited the AW’s testimony that he did

not know, and that he did not consult with anyone who knew, about the

disclosures. ID at 10.

The appellant has filed a petition for review. Petition for Review (PFR)

File, Tabs 1-2. She appears to reassert that she was subjected to a “retaliatory

investigation.” PFR File, Tab 2 at 10. She disagrees with the administrative

judge’s determination that the AW credibly denied knowledge of the appellant’s

disclosures. PFR File, Tab 1 at 12-15. She argues that the administrative judge

abused her discretion in her discovery-related rulings and violated the appellant’s

due process rights when technical issues caused the loss of 1 day of the hearing

recording, which required recalling a witness to testify again. PFR File,

Tab 1 at 7, 13, 15-17, 19-20. Finally, she presents evidence, some of which the

administrative judge rejected below, allegedly showing that the agency subjected

her to additional personnel actions after the close of record when it told her

5

she could resume clinical duties, continued to investigate her, and refused to

provide a copy of the OIA investigative report. PFR File, Tab 1 at 18-19.

The agency has responded to the petition for review, and the appellant has filed a

reply to the agency’s response. PFR File, Tabs 4-5.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge erred in her jurisdictional determination by failing to

consider the memorandum of counseling and OIA investigation as part of a

hostile work environment claim.

Below, the appellant timely objected to the administrative judge’s finding

that the Board lacks jurisdiction over her memorandum of counseling and the OIA

investigation. IAF, Tab 24 at 4-7, Tab 25. The administrative judge declined to

revisit this determination. IAF, Tab 28. Although the appellant has not directly

challenged the administrative judge’s findings regarding the Board’s jurisdiction

over these alleged personnel actions on review, she reiterates that she was

subjected to a “retaliatory investigation.” PFR File, Tab 2 at 10, 18.

To establish the Board’s jurisdiction over an IRA appeal, an appellant must

have exhausted her administrative remedies before OSC and make nonfrivolous

allegations of the following: (1) she made a protected disclosure described under

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

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

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

or threaten to take or fail to take, a personnel action as defined by 5 U.S.C.

§ 2302(a)(2)(A). 2 Spivey v. Department of Justice, 2022 MSPB 24, ¶ 5.

The definition of “personnel action” includes 11 enumerated matters and a final

category for “any . . . significant change in duties, responsibilities, or working

conditions.” 5 U.S.C. § 2302(a)(2)(A)(xii).

2

Although not necessary for our jurisdictional finding, we observe that the appellant

may be able to prove, on the merits, that some of her disclosures were made to agency

“component[s] responsible for internal investigation or review.” Such disclosures

constitute protected activities under 5 U.S.C. § 2302(b)(9)(C) regardless of their

content. Pridgen v. Office of Management & Budget, 2022 MSPB 31, ¶ 62.

6

As the administrative judge correctly noted in her jurisdictional findings,

an investigation does not, by itself, constitute a personnel action under 5 U.S.C.

§ 2302(a)(2)(A). ID at 28; Spivey, 2022 MSPB 24, ¶¶ 11-12. Further,

a counseling letter that merely advises an appellant of agency rules without

warning of future discipline or proposing additional restrictions is not, on its own,

a personnel action. See Hudson v. Department of Veterans Affairs , 104 M.S.P.R.

283, ¶ 17 n.* (2006) (agreeing with an administrative judge’s determination that a

counseling letter that set forth the agency’s existing rules regarding leave usage

without threatening disciplinary action or proposing to restrict the appellant’s

leave usage was not a personnel action). Here, the November 17, 2020

counseling memorandum noted that the appellant had published an article that

“provid[ed] procedural information pertaining to the Bureau of Prisons” and the

appellant’s employment at the agency without obtaining agency approval “prior

to publication as required by policy.” IAF, Tab 20 at 33. The appellant’s

second-level supervisor specifically reassured the appellant that the memorandum

of counseling was “not disciplinary.” IAF, Tab 20 at 32. Thus, the memorandum

was simply a reminder that the appellant was required to follow agency policy.

When, as here, agency actions do not independently fall within the

11 enumerated personnel actions, the administrative judge must “analyze whether

any of [the appellant’s] allegations individually or collectively fall under category

([xii]).” Holderfield v. Merit Systems Protection Board , 326 F.3d 1207, 1209

(Fed. Cir. 2003) (citing to 5 U.S.C. § 2302(a)(2)(A)(xi), where this provision was

previously located). 3 Although the Board interprets “significant change” broadly

to include harassment and discrimination that could have a chilling effect on

3

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

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

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

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

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

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

review of this decision before any appropriate court of appeal.

7

whistleblowing or otherwise undermine the merit system, only agency actions

that, individually or collectively, have practical and significant effects on the

overall nature and quality of an employee’s working conditions, duties,

or responsibilities will be found to constitute a personnel action covered by

section 2302(a)(2)(A)(xii). Skarada v. Department of Veterans Affairs,

2022 MSPB 17, ¶ 16. Thus, the Board may have jurisdiction over an alleged

significant change in working conditions that includes, among other actions,

an investigation. See id., ¶ 18 (finding that an appellant nonfrivolously alleged

that his employing agency significantly changed his working conditions based on

his claims that officials in his chain of command excluded him from meetings and

conversations, subjected him to multiple investigations, accused him of

“fabricating data” and of a Privacy Act violation, refused his request for a review

of his position for possible upgrade, yelled at him on three occasions, and failed

to provide him the support and guidance needed to successfully perform his

duties). We find that this same reasoning applies to a memorandum of

counseling.

Here, the appellant alleged that, between her November 2020 protected

disclosures and February 2021, her supervisors issued her a memorandum of

counseling, referred an incident with an inmate in which she was the alleged

wrongdoer to OIA for investigation, assigned her duties below her level,

and required her to perform correctional officer duties. IAF, Tab 12 at 8-9,

Tab 20 at 5, 45. She further alleged that her new first-level supervisor advised

her that she was “no longer a psychologist” and that refusal to perform

correctional officer duties could result in discipline. 4 IAF, Tab 12 at 9.

4

The administrative judge found that the appellant exhausted her claim regarding her

supervisor’s alleged February 2021 comments. IAF, Tab 24 at 4-5. However, the

administrative judge found that the appellant failed to prove she exhausted her claim

that her first-level supervisor again told her that she was “no longer a psychologist” on

April 4, 2021, as well as claims regarding other incidents occurring after OSC closed its

investigation in March 2021. IAF, Tab 24 at 7, Tab 28. The parties have not

challenged these findings on review, and we discern no basis to disturb them. IAF,

Tab 12 at 13-42.

8

She identified the supervisors involved and when the incidents occurred. Id.

Further, although not necessary for a jurisdictional finding, the agency does not

dispute that these incidents took place. IAF, Tab 13 at 29, Tab 20 at 33,

Tab 45 at 8-10; see Hessami v. Merit Systems Protection Board, 979 F.3d 1362,

1367-69 (Fed. Cir. 2020) (finding that a jurisdictional determination in an IRA

appeal should be based on an appellant’s allegations without crediting

an agency’s evidence contradicting those allegations). Taken cumulatively,

we find that the appellant nonfrivolously alleged that these actions constitute a

significant change in duties, responsibilities, and working conditions. Further,

the appellant proved that she exhausted these allegations with OSC. IAF,

Tab 12 at 20-24.

The appellant nonfrivolously alleged that her protected disclosures were a

contributing factor in the alleged personnel actions.

The administrative judge found that the appellant nonfrivolously alleged

that her protected disclosures were a contributing factor in the decision to place

the appellant on administrative status, strip her of clinical responsibilities,

and assign her as a “first line staff member” for augmentation purposes, as well as

the February 22, 2021 comment that she was “no longer a psychologist.” IAF,

Tab 12 at 9-10, Tab 24 at 4-5. The parties do not dispute this finding on review,

and we decline to disturb it.

Because she found that the memorandum of counseling and OIA

investigation were not personnel actions, the administrative judge did not make

jurisdictional findings on contributing factor as to those matters. To satisfy the

contributing factor criterion at the jurisdictional stage, an appellant need only

raise a nonfrivolous allegation that the fact of, or content of, the protected

disclosure was one factor that tended to affect the personnel action in any way.

Chambers v. Department of Homeland Security, 2022 MSPB 8, ¶ 14. One way to

establish this criterion is the knowledge/timing test, under which an employee

may nonfrivolously allege that the official taking the personnel action knew of

9

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

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

factor in the personnel action. Id., ¶ 15. Applying this test, we find that the

appellant nonfrivolously alleged contributing factor as to both the memorandum

of counseling and OIA investigation.

The appellant’s first- and second-level supervisors issued the

November 17, 2020 memorandum of counseling 11 days after learning of the

appellant’s disclosures. IAF, Tab 20 at 6-7, 17-18, 33. The Board has held that

the timing prong of the knowledge/timing test is satisfied when a personnel action

occurred within 1 to 2 years of the protected disclosure or activity. Pridgen v.

Office of Management & Budget, 2022 MSPB 31, ¶ 63. Therefore, these facts

amount to a nonfrivolous allegation of contributing factor as to the memorandum

of counseling.

The appellant also alleged to OSC that the AW “demanded that the Special

Investigative Agents . . . refer an inmate allegation against me to OIA for review”

less than 4 weeks after she made her protected disclosures. IAF, Tab 12 at 20-21,

23. Thus, she met the timing prong of the knowledge/timing test as to this

personnel action. She also made nonfrivolous allegations concerning the

knowledge prong. As to the knowledge prong, the appellant need only make a

nonfrivolous allegation that the agency official who took the action had

constructive knowledge of the disclosure. Swinford v. Department of

Transportation, 107 M.S.P.R. 433, ¶ 9 (2007). The agency submitted a sworn

statement from the AW corroborating that he requested the OIA investigation.

IAF, Tab 20 at 37. The appellant alleged below that the AW had a “very long

standing relationship” with the appellant’s first-level supervisor at the time that

the AW made the OIA referral. IAF, Tab 12 at 6, 23-24. It is undisputed that this

supervisor was aware of the appellant’s disclosure. IAF, Tab 20 at 6.

We interpret this as an implicit allegation that the AW had constructive

knowledge of the appellant’s protected disclosures when he referred her for

10

an OIA investigation. This amounts to a nonfrivolous allegation that the

appellant’s protected disclosure was a contributing factor in the AW’s decision to

refer her for an OIA investigation.

Therefore, we find that the appellant nonfrivolously alleged that her

disclosures were a contributing factor in the memorandum of counseling and OIA

investigation under the knowledge/timing test.

We vacate the initial decision in its entirety and remand for new findings on the

merits.

At the merits stage of an IRA appeal, the appellant must prove by

preponderant evidence that she made a protected disclosure or engaged in a

protected activity that was a contributing factor in a personnel action taken

against her. Smith v. Department of the Army, 2022 MSPB 4, ¶ 13. If the

appellant meets that burden, the agency is given an opportunity to prove by clear

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

absent the protected disclosure or activity. Id. The administrative judge made

findings on the merits of the appellant’s claims after she improperly narrowed the

scope of the alleged hostile work environment over which the Board has

jurisdiction.

The administrative judge who oversaw the proceedings below and issued

the initial decision is no longer employed by the Board. When there is conflicting

testimony on a material issue, and a new administrative judge will decide the

case, the testimony should be heard again to permit her to make credibility

determinations based on witness demeanor. Lin v. Department of the Air Force,

2023 MSPB 2, ¶ 24. Because our findings here expand the scope of the hostile

work environment that the administrative judge must address on the merits,

and the parties disagree as to whether the agency’s alleged actions were

motivated by the appellant’s disclosures, we vacate the initial decision in its

entirety. See Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, ¶ 37

(2013) (finding that when the relevant evidence needs to be reweighed,

11

the administrative judge is in the best position to do so because she is the one

who heard the live testimony and made credibility determinations). On remand,

the assigned administrative judge should hold a new hearing on the merits of the

appellant’s claims and issue a remand initial decision on all of the issues without

relying on the vacated initial decision.

On remand, in making findings as to whether the appellant proved that her

disclosures were a contributing factor in the AW’s decision to place the appellant

on administrative duties, the administrative judge should consider whether the

appellant proved that the AW was influenced by the appellant’s second-level

supervisor, who had knowledge of the disclosures. In the initial decision,

the administrative judge found no evidence that the AW knew, or consulted with

anyone who knew, of the appellant’s disclosures. ID at 10. The record does not

support this conclusion. The appellant’s second-level supervisor, who both

signed and presented the appellant with the letter assigning her to administrative

duties at the direction of the AW, knew of the appellant’s disclosures. IAF,

Tab 13 at 29, Tab 20 at 17-19. The supervisor testified that she did not discuss

the appellant’s disclosures with the AW and that she decided not to object to the

appellant’s reassignment because she agreed with the decision. HR, Day 2,

Track 5 (testimony of the appellant’s second-level supervisor). On remand, the

administrative judge could find that the supervisor’s silence on this matter

influenced the AW to move forward with the placement of the appellant on

administrative duties, thus establishing constructive knowledge. E.g., Marano v.

Department of Justice, 2 F.3d 1137, 1138-39, 1143 (Fed. Cir. 1993) (finding

an employee met his burden of proving contributing factor because the content of

his disclosure was the reason the agency conducted an investigation which

verified his disclosure and, in turn, led to his reassignment, the personnel action

at issue in the case).

The Board has held that, if an administrative judge determines that

an appellant has failed to satisfy the knowledge/timing test, she shall consider

12

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

agency’s reasons for taking the personnel action, whether the whistleblowing was

personally directed at the proposing or deciding officials, and whether they had a

desire or motive to retaliate against the appellant. Dorney v. Department of the

Army, 117 M.S.P.R. 480, ¶ 15 (2012). The administrative judge’s initial decision

did not address the alternative to the knowledge/timing test set forth in Dorney.

ID at 9-10. If, on remand, the administrative judge finds that the appellant did

not prove contributing factor under the knowledge/timing test, she should

determine if the appellant proved contributing factor under the reasoning in

Dorney.

On remand, the administrative judge should order the agency to produce the OIA

investigation and related materials.

The appellant alleges that the administrative judge abused her discretion in

denying the appellant’s four motions to compel. PFR File, Tab 2 at 5-7, 14-17;

IAF, Tabs 30, 39, 47, 71. As relevant here, discovery must be completed within

the time period designated by the administrative judge. 5 C.F.R. § 1201.73(d)(4).

Further, a motion to compel must contain a statement that the moving party has

discussed or attempted to discuss the anticipated motion with the nonmoving

party and made good faith efforts to resolve the discovery dispute. 5 C.F.R.

§ 1201.73(c)(1)(iii). An administrative judge has broad discretion in ruling on

discovery matters, and absent an abuse of discretion, the Board will not find

reversible error in such rulings. Pridgen, 2022 MSPB 31, ¶ 71.

The administrative judge denied the appellant’s first motion to compel

because it was untimely filed without good cause and did not state that

she attempted to resolve her discovery dispute with the agency before filing her

motion. IAF, Tab 34 at 1-2. The administrative judge had previously advised the

parties that they had until July 19, 2021, to respond to discovery requests,

and until July 26, 2021, to file motions to compel. IAF, Tab 21 at 1. This

amounted to a 9-day period for filing a motion to compel from the opposing

13

party’s allegedly deficient responses. Although the Board’s regulations generally

provide for a 10-day period, Pridgen, 2022 MSPB 31, ¶ 71; 5 C.F.R. § 1201.73(d)

(3), we discern no abuse of discretion in the administrative judge shortening the

period by 1 day. The agency responded to the appellant’s written discovery on

July 19, 2021, as required. IAF, Tab 30 at 28, 47. The appellant’s attorney filed

the first motion to compel on July 27, 2021, and therefore it was 1 day late. IAF,

Tab 30 at 1. Further, he did not state in that motion that he attempted to resolve

the discovery dispute with the agency. Id. at 5-9. Thus, the administrative judge

acted within her discretion in denying the motion based on these deficiencies.

Similarly, the administrative judge did not abuse her discretion in denying

the appellant’s second and third motions to compel. IAF, Tabs 41, 47.

She denied the second motion because the appellant’s attorney’s statement that

he unsuccessfully attempted to contact agency counsel within minutes of filing

his motion was not a good faith attempt to resolve the discovery dispute,

as required by 5 C.F.R. § 1201.73(c)(1)(iii). IAF, Tab 39 at 7-8, Tab 40 at 11,

Tab 41. She denied the appellant’s third motion to compel because her attorney

filed it after the August 27, 2021 deadline for the close of discovery. IAF,

Tab 21 at 1, Tabs 47, 48; see Cassel v. Department of Agriculture, 72 M.S.P.R.

542, 545-46 (1996) (finding no abuse of discretion in denying discovery motions

filed 10 days after the limit specified in the acknowledgment order).

The administrative judge’s denial of the appellant’s fourth motion to

compel discovery is more troublesome. The agency had represented in its

July 19, 2021 responses to the appellant’s request for production of documents

that, at that time, the investigation was still pending. IAF, Tab 39 at 17,

Tab 71 at 5. During a status conference on November 16, 2021, the agency’s

representative acknowledged that the OIA investigation had been completed or

was nearing completion. IAF, Tabs 70-72. The appellant thereafter moved to

compel production of the report and records of the investigation. IAF,

Tab 71 at 4, 7. The administrative judge denied the appellant’s fourth motion to

14

compel discovery on the basis that “[t]he results of the investigatory report are

not probative” to the appeal. IAF, Tab 72.

The scope of discovery includes information that appears reasonably

calculated to lead to the discovery of admissible evidence. Jenkins v.

Environmental Protection Agency, 118 M.S.P.R. 161, ¶ 26 (2012); 5 C.F.R.

§ 1201.72(a)-(b). We have now determined that the appellant nonfrivolously

alleged that the OIA investigation was part of a series of actions that

cumulatively constituted a significant change in duties, responsibilities,

and working conditions. We need not determine here if the administrative judge

abused her discretion in denying the appellant’s fourth motion to compel.

Instead, we find that the report and related materials may lead to the discovery of

admissible evidence. Because the discovery dispute here is narrow, we decline to

reopen discovery on remand. However, in order to permit the appellant to fully

adjudicate her claims, the administrative judge should order the agency to

produce a copy of the OIA investigation and underlying materials. See Jenkins,

118 M.S.P.R. 161, ¶¶ 27-29 (permitting the parties to conduct additional

discovery related to an appellant’s whistleblower reprisal affirmative defense on

remand because the administrative judge’s rulings related to discovery effectively

denied the appellant a full opportunity to establish her claim).

The appellant also argues that the administrative judge abused her

discretion when she denied the appellant’s request for the testimony of a

particular Special Investigative Agent at the hearing. PFR File, Tab 2 at 9;

IAF, Tab 46 at 12. The administrative judge denied this request, finding that

the appellant’s proffer did not establish the relevance of this witness. IAF,

Tab 51 at 2. The appellant failed to object to that ruling below and is precluded

from raising the issue on review. Tarpley v. U.S. Postal Service, 37 M.S.P.R.

579, 581 (1988). However, in light of this Remand Order, the parties may make

new requests for witnesses consistent with the administrative judge’s orders, and

15

the administrative judge should make new findings whether to permit those

witnesses to testify at the new hearing.

Because we are vacating the initial decision and remanding for a new

hearing, we need not reach the appellant’s arguments that the administrative

judge made erroneous findings of fact; discouraged the appellant from testifying

at the end of the hearing; and improperly considered the AW’s first day of

testimony despite the court reporter failing to record it, requiring that the AW be

recalled. PFR File, Tab 2 at 12-14, 19, 21, 40, Tab 5 at 7. We also do not rule on

the admissibility of the evidence she offers for the first time on review. PFR File,

Tab 2 at 12, 18. On remand, she may request to submit this evidence into the

record consistent with the orders of the administrative judge. The appellant also

names new witnesses on review. Id. at 11-12. Again, she may request the

testimony of these witnesses consistent with the administrative judge’s orders.

We leave whether to permit such witnesses to the sound discretion of the

administrative judge on remand.

ORDER

For the reasons discussed above, we remand this case to the Denver Field

Office for further adjudication in accordance with this Remand Order.

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.