stating that, in an IRA appeal, the Board is not required to address all the jurisdictional requirements when an appeal fails to satisfy one of them because addressing the others would be both “unnecessary and possibly wasteful”
How later courts described this case
- stating that, in an IRA appeal, the Board is not required to address all the jurisdictional requirements when an appeal fails to satisfy one of them because addressing the others would be both “unnecessary and possibly wasteful”
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LOUIS M. TUTT, DOCKET NUMBER
Appellant, DC-1221-22-0234-W-1
v.
DEPARTMENT OF THE ARMY, DATE: April 3, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Luis M. Melendez , Esquire, Washington, D.C., for the appellant.
Joseph A. Fedorko , Esquire, Mary J. Bradley , Esquire, Washington, D.C.,
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
dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the regional 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 previously served as the Director of Audit Readiness for the
agency’s Office of the Assistant Secretary (Acquisition, Logistics, and
Technology) in Arlington, Virginia. Initial Appeal File (IAF), Tab 12 at 4, 47,
60. In October 2021, the appellant filed a whistleblower complaint with the
Office of Special Counsel (OSC), alleging that, between 2018 and 2021, the
agency took multiple personnel actions against him in retaliation for his
disclosures and activities. IAF, Tab 1 at 4; Petition for Review (PFR) File, Tab 5
at 35-37. On December 13, 2021, OSC issued two letters notifying him that it
had closed its investigation into his claims and that he could file an appeal with
the Board. IAF, Tab 12 at 11-14; PFR File, Tab 5 at 48. The appellant filed the
instant appeal, disagreeing with OSC’s decision to close its investigation. IAF,
Tab 1 at 3, 8-9. He requested a hearing. Id. at 2.
The administrative judge notified the appellant of his jurisdictional burden
and ordered him to file evidence and argument on the jurisdictional issue.
IAF, Tab 11. In response, the appellant submitted a sworn statement along with
supporting documentation, alleging that he made the following protected
disclosures and engaged in the following protected activities: (1) he reported
contractor fraud to the Deputy Assistant Secretary of the Army (Plans, Programs,
Resources) (Deputy Assistant) and the agency’s Criminal Investigation Division
(CID); (2) he filed and pursued a U.S. Court of Appeals for the Fourth Circuit
(Fourth Circuit) case against the agency; and (3) he participated as a witness in an
equal employment opportunity (EEO) complaint in support of his coworker.
IAF, Tab 12 at 3, 5, 7-8, 11, 23-26, 47-50, 60-63, 80. The appellant alleged that,
in retaliation for his protected disclosures and activities, the agency initiated
an Army Regulation (AR) 15-6 investigation against him, placed him on a
temporary detail, then permanently reassigned him, and eventually proposed his
removal. Id. at 4-8. The appellant resigned on October 28, 2021. Id. at 13;
PFR File, Tab 5 at 48.
3
After the record closed on jurisdiction, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 14, Initial
Decision (ID) at 1, 8. He found that the appellant failed to exhaust some of his
disclosures and activities before OSC, and that the appellant failed to make a
nonfrivolous allegation that any of his remaining disclosures and activities were
protected. ID at 7-8.
The appellant has filed a petition for review. PFR File, Tab 5. The agency
has filed a response, and the appellant has replied. PFR File, Tabs 8, 11. We
find that the appellant established jurisdiction over his IRA appeal and remand
this appeal to the regional office for a hearing on the merits.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction over an IRA appeal if the appellant has
exhausted his administrative remedies before OSC and makes nonfrivolous
allegations that: (1) he made a disclosure described under 5 U.S.C. § 2302(b)(8)
or engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B),
(C), or (D); and (2) the disclosure or activity was a contributing factor in the
agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C.
§ 2302(a). McCray v. Department of the Army, 2023 MSPB 10, ¶ 11. Any doubt
or ambiguity as to whether the appellant made nonfrivolous jurisdictional
allegations should be resolved in favor of finding jurisdiction. Skarada v.
Department of Veterans Affairs, 2022 MSPB 17, ¶ 6. In cases involving multiple
alleged protected disclosures or activities and multiple alleged personnel actions,
the Board has jurisdiction if the appellant has exhausted his administrative
remedies before OSC and makes a nonfrivolous allegation that at least one
alleged personnel action was taken in reprisal for at least one alleged protected
disclosure or activity. Usharauli v. Department of Health & Human Services,
116 M.S.P.R. 383, ¶ 19 (2011).
4
We find that the appellant did not exhaust his CID disclosures and did exhaust his
participation in a coworker’s EEO complaint.
An employee seeking corrective action for whistleblower reprisal under
5 U.S.C. § 1221 is required to seek corrective action from OSC before seeking
corrective action from the Board. Chambers v. Department of Homeland
Security, 2022 MSPB 8, ¶ 5. After the initial decision was issued in this case, the
Board clarified the substantive requirements of exhaustion in Chambers.
Id., ¶¶ 10-11. The exhaustion requirement is met when an appellant has provided
OSC with a sufficient basis to pursue an investigation. Id., ¶ 10. The Board’s
jurisdiction is limited to those issues that have been previously raised with OSC.
Id. However, an appellant may give a more detailed account of his
whistleblowing activities before the Board than he did to OSC. Id. An appellant
may demonstrate exhaustion through his initial OSC complaint or correspondence
with OSC. Id., ¶ 11. In the alternative, exhaustion may be proven through other
sufficiently reliable evidence, such as an affidavit or declaration attesting that the
appellant raised with OSC the substance of the facts in his Board appeal. Id.
The administrative judge below did not have the benefit of the Chambers
decision. Further, for the first time on review, the appellant has provided a copy
of his OSC complaint and additional correspondence with OSC to support his
burden as to the administrative exhaustion requirement. PFR File, Tab 5
at 27-48. These documents provide new information regarding the appellant’s
alleged disclosures that the administrative judge did not have available below.
Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence or
argument submitted for the first time with a petition for review absent a showing
that it was unavailable before the record was closed before the administrative
judge despite the party’s due diligence. See Avansino v. U.S. Postal Service,
3 M.S.P.R. 211, 213-14 (1980). However, we have considered the appellant’s
new evidence to the extent it impacts the Board’s jurisdiction, which is always
5
before the Board and can be raised by the parties or sua sponte at any time. Ney
v. Department of Commerce, 115 M.S.P.R. 204, ¶ 7 (2010).
Based on our review of the appellant’s submissions below and on review,
we discern no basis to disturb the administrative judge’s implicit determination
that the appellant raised with OSC his Fourth Circuit case. However, we disagree
with his implicit finding that the appellant exhausted his CID disclosures.
Further, in contrast with the administrative judge’s contrary conclusion, the new
evidence that the appellant has submitted on review supports our finding, below,
that he exhausted with OSC his alleged protected activity of participating in his
coworker’s EEO complaint. The appellant has raised an additional alleged
disclosure and activity on review, but failed to establish jurisdiction over these
claims.
Procurement fraud by a non-Federal Government contractor
The appellant alleged in his correspondence with OSC that he reported
procurement fraud and misappropriation of funds to the agency’s CID. PFR File,
Tab 5 at 36, 47. The appellant has not provided evidence that he advised OSC of
his disclosure of the same allegation to the Deputy Assistant. Id. Nor does his
correspondence reflect the dates of his disclosures to CID, which Government
contractor he is referencing, or the actions that he believed constituted such
wrongdoing. OSC’s letters to the appellant indicate that he provided information
about “alleged procurement fraud and violations of federal acquisition
regulations” which he reported to CID from “June to August 2018 and followed
up in August 2019.” IAF, Tab 12 at 11, 13. The appellant submitted a sworn
statement below in which he alleged that, in October 2016, he advised the Deputy
Assistant of potential procurement fraud by contractor Ernest & Young LLP
6
(E&Y LLP) on a task order for his office. 2 Id. at 5, 62. The appellant alleged
that the Deputy Assistant “told [the appellant] to do nothing,” after which the
appellant filed a complaint on the same topic to CID in March 2017. Id. at 5.
In the initial decision, the administrative judge found that there was no
indication that the appellant exhausted with OSC the alleged disclosures he made
to the Deputy Assistant regarding the performance of the E&Y LLP contract.
ID at 7. Although the appellant disputes this finding, we agree with the
administrative judge. PFR File, Tab 5 at 12-13, 18-19. The administrative judge
also implicitly found that the appellant exhausted his alleged disclosures of
procurement fraud to CID but found that they lacked sufficient detail. ID at 8.
The appellant reasserts on review that he exhausted his CID disclosures.
PFR File, Tab 5 at 12-13, 19. We disagree with both the administrative judge and
the appellant. While both the OSC letter and the appellant’s sworn statement
discuss a complaint filed with CID and the events leading up to it, it does not
appear to be the same complaint.
The OSC letter details that the appellant alleged that he reported
procurement fraud to CID between June and August 2018. IAF, Tab 12 at 11.
However, the appellant’s sworn statement discusses a CID complaint filed in
March 2017 concerning E&Y LLP billing for their employees’ time when the
employees were not providing services or were not qualified for the work they
were performing. Id. at 5, 21-26. He also included an email from June 2020
addressed to the Deputy Assistant and another agency official disagreeing with
the agency’s decision to modify its contract with a different contractor,
AvantGarde. 3 Id. at 62, 66-67. However, both below and on review, the
2
The appellant’s allegations regarding this disclosure are difficult to follow. IAF,
Tab 12 at 5, 62. Because he was not represented below, we have interpreted his
allegations liberally in the manner most favorable to him. IAF, Tab 1 at 6; see Baker v.
Social Security Administration, 2022 MSPB 27, ¶ 21 (stating that the Board liberally
construes pro se pleadings).
3
The appellant’s attorney implies on review that he exhausted his June 2020
AvantGarde disclosure with OSC. PFR File, Tab 5 at 18-19. However, the appellant
7
appellant does not address his alleged CID disclosures related to procurement
fraud between 2018 and 2019, as identified and investigated by OSC. Id. at 11.
While an appellant may give a more detailed account of his activities before the
Board than he did to OSC, he must have provided OSC with sufficient
information to conduct an investigation. Chambers, 2022 MSPB 8, ¶ 10. We do
not believe that OSC had a sufficient basis to investigate his March 2017 CID
disclosure, and the Board is therefore precluded from considering it.
Fourth Circuit case
The administrative judge implicitly found that the appellant exhausted his
allegation that he was retaliated against for filing his Fourth Circuit case.
ID at 6-7. The record supports this conclusion and we decline to disturb the
administrative judge’s implicit finding. IAF, Tab 12 at 11.
Assisting coworker with EEO complaint
The appellant alleged below that he was retaliated against for participating
as a witness in an EEO case for a coworker from approximately August 2016,
through January 2017. Id. at 8, 60-63, 80. The administrative judge found that
the appellant had not exhausted this disclosure with OSC. ID at 7. The appellant
generally disagrees with the administrative judge’s exhaustion finding, but does
not present any specific arguments regarding exhaustion of his EEO activity.
PFR File, Tab 5 at 12-15. Based on the record at the time, the administrative
judge was correct. IAF, Tab 12 at 11, 13. However, for the first time on review,
the appellant submitted his OSC complaint, in which he alleged that he was a
witness in his coworker’s EEO complaint and “participated in providing
information to the complainant, complainant’s attorney, and the Pentagon medical
identified his AvantGarde disclosure below as “relevant to another allege[d] instance of
contract fraud; not conclusive because reporting is outside of this process.” IAF,
Tab 12 at 6, 66-67. He does not identify any evidence supporting a finding of
exhaustion. Because the statements of a party’s representative in a pleading do not
constitute evidence, we decline to give any weight to the unsupported suggestion of the
appellant’s attorney that the appellant exhausted his AvantGarde disclosure with OSC.
Hendricks v. Department of the Navy, 69 M.S.P.R. 163, 168 (1995).
8
personnel.” PFR File, Tab 5 at 36-37. Thus, we find that the appellant exhausted
this disclosure with OSC.
Constituent letter to senator, Department of Defense (DOD), Office
of Inspector General (IG) complaint, and DOD hotline complaint
For the first time on review, the appellant alleges reprisal for a letter sent
to U.S. Senator Tim Kaine, a complaint submitted to the DOD IG, and a DOD
hotline complaint. Id. at 6. The new evidence he submits on review supports a
finding that he generally raised this disclosure and activity in his correspondence
with OSC. Id. at 47-48. However, his allegations imply that the alleged
disclosure and activity occurred after the personnel actions at issue in this case.
Id. A disclosure or activity that occurs after the agency took a personnel action
cannot be considered a contributing factor in that personnel action. Sherman v.
Department of Homeland Security, 122 M.S.P.R. 644, ¶ 8 (2015). Therefore, the
appellant has failed to nonfrivolously allege that he met the contributing factor
criterion as to his newly raised disclosure and activity. On remand, the appellant
may seek to prove exhaustion and clarify his allegations to meet his jurisdictional
burden as to these matters, consistent with the orders of the administrative judge.
The appellant has made a nonfrivolous allegation that assisting his coworker with
her EEO complaint was a protected activity.
Having addressed the exhaustion requirement, we turn next to the issue of
whether the appellant nonfrivolously alleged that he made protected disclosures
or engaged in protected activities within the scope of the Board’s jurisdiction.
See Carney v. Department of Veterans Affairs, 121 M.S.P.R. 446, ¶¶ 4-5 (2014).
A nonfrivolous allegation is an allegation of “sufficient factual matter, accepted
as true, to state a claim that is plausible on its face.” Hessami v. Merit Systems
Protection Board, 979 F.3d 1362, 1364, 1369 (Fed. Cir. 2020); see 5 C.F.R.
§ 1201.4(s) (defining a nonfrivolous allegation as a plausible, nonconclusory
assertion that, if proven, could establish the matter at issue).
9
Fourth Circuit case
The administrative judge found that the appellant’s Fourth Circuit case was
brought under Title VII and was not within the Board’s IRA jurisdiction because
it did not include a claim of whistleblower reprisal. ID at 7. Claims of reprisal
for engaging in activity protected by Title VII or disclosing violations of
Title VII fall outside the Board’s IRA jurisdiction. Edwards v. Department of
Labor, 2022 MSPB 9, ¶¶ 10-17, 22-23, aff’d, No. 2022-1967, 2023 WL 4398002
(Fed. Cir. July 7, 2023). 4 In addition, an appellant pursuing his own personal
EEO complaint, which is a matter relating solely to discrimination, is not a
protected activity within the Board’s IRA jurisdiction. Absent an allegation of
reprisal for making protected disclosures on matters unrelated to Title VII, filing
an EEO claim is not protected activity under 5 U.S.C. § 2302(b)(9)(A)(i). Id.,
¶¶ 22-25. Filing a complaint of discrimination also is not a protected activity
under 5 U.S.C. § 2302(b)(9)(B), even if the complaint alleges discrimination
against other employees. Id., ¶¶ 26-28. Nor is it an activity within the meaning
of 5 U.S.C. § 2302(b)(9)(C). See McCray, 2023 MSPB 10, ¶¶ 2, 26-30
(explaining that 5 U.S.C. § 2302(b)(9)(C) does not include filing a grievance
alleging disability discrimination, because doing so falls under 5 U.S.C.
§ 2302(b)(9)(A)(ii)). Finally, the appellant has not claimed that he refused to
obey an unlawful order, as necessary to allege that he engaged in activity
protected by 5 U.S.C. § 2302(b)(9)(D).
4
On review, the appellant argues that the Board has a “mixed record” on whether
disclosures regarding EEO matters are protected. PFR File, Tab 5 at 19-20. He also
posits that Congress eliminated any exclusion of EEO disclosures in the Whistleblower
Protection Enhancement Act of 2012 (WPEA). Id. at 20-21. The Board in Edwards
expressly overruled the contrary authority on which the appellant relies in asserting the
Board’s decisions on this issue are “mixed.” Id.; Edwards, 2022 MSPB 9, ¶¶ 18-20.
Similarly, the Board found that the WPEA did not expand the scope of whistleblower
protection statutes to include Title VII-related matters. Edwards, 2022 MSPB 9, ¶ 22.
The appellant fails to acknowledge or address the reasoning in Edwards, and therefore
his arguments are unpersuasive.
10
Here, the appellant alleged that the Fourth Circuit issued a decision in his
case on September 8, 2021, and the agency proposed his removal in retaliation on
September 30, 2021. PFR File, Tab 5 at 6, 19-21, 35-36. However, as the
administrative judge recognized, the appellant’s case alleged violations of
Title VII, not whistleblower reprisal. ID at 7; see Tutt v. Wormuth, No. 19-2480,
2021 WL 4076729 (4th Cir. Sept. 8, 2021). Thus, we discern no basis to disturb
the administrative judge’s conclusion that the appellant’s protected activity
concerned a violation of EEO laws outside the Board’s IRA jurisdiction. ID at 7.
Because we agree with the administrative judge that the appellant failed to
nonfrivolously allege that this disclosure was protected, we need not reach his
arguments as to the contributing factor criterion on this issue. PFR File, Tab 5
at 19; see Schmittling v. Department of the Army , 219 F.3d 1332, 1336-37 (Fed.
Cir. 2000) (stating that, in an IRA appeal, the Board is not required to address all
the jurisdictional requirements when an appeal fails to satisfy one of them
because addressing the others would be both “unnecessary and possibly
wasteful”).
Assisting coworker with EEO complaint
Under 5 U.S.C. § 2302(b)(9)(B), protected activity includes “testifying for
or otherwise lawfully assisting any individual in the exercise” of an appeal,
complaint, or grievance right. Alarid v. Department of the Army, 122 M.S.P.R.
600, ¶ 10 (2015). Assisting another employee in the EEO process constitutes
protected activity under 5 U.S.C. § 2302(b)(9)(B). Marable v. Department of the
Army, 52 M.S.P.R. 622, 629-30 n.9 (1992) (finding that the appellant’s actions
“supporting an EEO complaint filed by an applicant for a position with the
agency” by refusing to “white wash” the matter constituted protected activity
under section 2302(b)(9)(B)).
According to the appellant, from approximately August 2016, through
January 2017, he provided information to his coworker, her attorney, and agency
medical staff to corroborate his coworker’s EEO claim alleging race
11
discrimination. PFR File, Tab 5 at 36-37; IAF, Tab 12 at 62-63, 80. Because the
administrative judge found that the appellant did not exhaust this claim, he did
not consider whether the appellant satisfied the remaining jurisdictional elements
of this activity. ID at 7. We find that the appellant nonfrivolously alleged that
his actions supporting his coworker’s EEO complaint constituted protected
activity under 5 U.S.C. § 2302(b)(9)(B).
The appellant nonfrivolously alleged that the agency took personnel actions
against him.
In cases such as this one, when the appellant has alleged multiple personnel
actions, the Board has jurisdiction when the appellant exhausts his administrative
remedies before OSC and makes a nonfrivolous allegation that at least one
alleged personnel action was taken in reprisal for at least one alleged protected
disclosure or activity. Skarada, 2022 MSPB 17, ¶ 13. Because the administrative
judge disposed of the appellant’s claims on other grounds, he did not make any
findings as to the alleged personnel actions. ID at 7-8. Therefore, we do so here.
Based on our review of the appellant’s jurisdictional pleadings, we find that he
has exhausted the following alleged personnel actions with OSC: his temporary
detail beginning November 2016, his July 2018 management -directed
reassignment, his September 2021 proposed removal, and his October 28, 2021
alleged involuntary resignation. IAF, Tab 10 at 7, Tab 12 at 4-8, 13-14, 35,
52-53. Although the appellant also alleged below that, beginning in November
2016, he was subjected to a retaliatory AR 15-6 investigation, he has provided no
evidence that he raised this claim with OSC. IAF, Tab 12 at 4-6, 8, 11, 13; PFR
File, Tab 5 at 27-48. Because he failed to prove he exhausted his OSC remedy,
we will not address this alleged personnel action further.
Temporary Detail and Permanent Reassignment
The appellant asserted that he was subjected to a reassignment. IAF,
Tab 12 at 4-6, 52-53; PFR File, Tab 5 at 35. Federal employees may seek
corrective action for retaliatory “detail[s], transfer[s], or reassignment[s]” in an
12
IRA appeal. See 5 U.S.C. § 2302(a)(2)(A)(iv) (defining “personnel action” to
include such actions). Here, the appellant elaborated in his statements below that,
while his grade and pay did not change, his job title, job duties and
responsibilities, and duty station all changed when he was temporarily detailed,
and then issued a management-directed reassignment, to the position of Executive
Program Support Analyst. IAF, Tab 12 at 4-6, 52-54, 86-87. This reassignment
also removed his supervisory duties. Id. at 86-87. The appellant ultimately
elected to accept the management-directed reassignment “under protest.” Id.
at 94-95. Thus, the appellant made nonfrivolous allegations that he was subjected
to a personnel action.
Proposed Removal and Resignation
The appellant has also nonfrivolously alleged that the agency proposed his
removal in September 2021. IAF, Tab 10 at 7-14, Tab 12 at 8; PFR File, Tab 5
at 6, 35-36, 42-46. The agency’s proposed removal constituted a personnel
action. Bacas v. Department of the Army, 99 M.S.P.R 464, ¶ 5 (2005).
According to the appellant, he resigned on October 28, 2021. IAF, Tab 10
at 5; PFR File, Tab 5 at 48. An appellant can pursue a claim of involuntary
resignation as a personnel action in an IRA appeal. See Mastrullo v. Department
of Labor, 123 M.S.P.R. 110, ¶ 10 (2015). Here, the administrative judge did not
notify the appellant of his burden of proof and the elements to make a
nonfrivolous allegation that his resignation was involuntary. The administrative
judge should determine on remand whether the appellant nonfrivolously alleged
that his decision to resign was involuntary, and thus a personnel action that could
be raised in an IRA appeal.
We observe, without deciding at this stage in the proceedings, that, as the
Executive Program Support Analyst at the time of his resignation, the appellant
may be “a supervisor or a management official” within the definition of 5 U.S.C.
§ 7103(a)(2) and (a)(10)-(11). If so, he is not subject to the election of remedies
requirement in 5 U.S.C. § 7121(g). See Requena v. Department of Homeland
13
Security, 2022 MSPB 39, ¶¶ 7-8, 10-15. On remand, the administrative judge
should advise the parties of this and any other election of remedies issues and
give them an opportunity to address them. Id., ¶¶ 15-16; see, e.g., Corthell v.
Department of Homeland Security, 123 M.S.P.R. 417, ¶¶ 15-17 (2016)
(explaining that, to be binding, an election under 5 U.S.C. § 7121(g) must be
knowing and informed), overruled on other grounds by Requena v. Department of
Homeland Security, 2022 MSPB 39.
The appellant made a nonfrivolous allegation that his participation in his
coworker’s EEO complaint contributed to his management - directed reassignment.
In addition to the requirements addressed above, to establish IRA
jurisdiction, the appellant must nonfrivolously allege that a protected disclosure
or activity was a contributing factor in the agency’s decision to take or fail to take
a personnel action. Chambers, 2022 MSPB 8, ¶ 14. 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 or
activity was one factor that tended to affect the personnel action in any way. Id.
One way to establish this criterion is the knowledge/timing test, under which an
employee 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 taking 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. Id., ¶ 15; see 5 U.S.C. § 1221(e)(1).
In deciding whether an appellant has nonfrivolously alleged that he made
protected disclosures or engaged in protected activities that contributed to a
personnel action, the Board is not permitted to “credit[] the agency’s
interpretation of the evidence.” Hessami, 979 F.3d at 1369.
As discussed above, the appellant alleges that he assisted his coworker with
her EEO complaint from June 2016, through January 2017. IAF Tab 12 at 7, 60,
14
80, 146. He states his belief that one of the agency officials named in that
complaint was the Deputy Assistant. Id. at 7. The appellant further alleges that,
due to his participation in his coworker’s complaint, the Deputy Assistant
retaliated against him by, in relevant part, reassigning him. Id. at 19, 52-53, 60,
87.
The Deputy Assistant acknowledged that he learned of the appellant’s
protected activity on July 26, 2018. Id. at 113. The appellant has alleged that
he believes his reassignment became permanent effective July 27, 2018, which
would be a day after the Deputy Assistant stated he became aware of the
appellant’s protected activity. 5 Id. at 84-85.
These events are close enough in time to support a conclusion that the
appellant’s assistance with his coworker’s EEO complaint was a contributing
factor in his management-directed reassignment. See Scoggins v. Department of
the Army, 123 M.S.P.R. 592, ¶ 25 (2016) (observing that a personnel action that
takes place within 2 years of a disclosure satisfies the knowledge component of
the knowledge/timing test). Accordingly, we find that the appellant is entitled to
his requested hearing regarding his claim that the agency permanently reassigned
him in retaliation for his protected activity of participating as a witness in his
coworker’s EEO complaint. IAF, Tab 1 at 2. We do not address here whether the
appellant also nonfrivolously alleged that his assistance with his coworker’s EEO
complaint contributed to his detail beginning November 2016, his September
2021 proposed removal, or his October 2021 resignation. On remand, the
administrative judge should make findings on these issues and, if appropriate,
adjudicate these additional personnel actions on the merits.
5
We do not resolve at the jurisdictional stage whether the appellant’s reassignment was
completed prior to July 26, 2018, and merely awaiting implementation. If it was, then
the appellant may not be able to prove the contributing factor criterion on the merits.
See Sherman, 122 M.S.P.R. 644, ¶¶ 8-11.
15
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.