# Alexis Ganz v. Department of Justice

> Merit Systems Protection Board · April 2, 2024

URL: https://www.frixlaw.com/law-library/cases/9956953

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** April 2, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9956953

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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THIS ORDER IS NONPRECEDENTIAL 1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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9956953. Public record. Not legal advice.