explaining that the Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation
How later courts described this case
- explaining that the Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation
- declining to consider an allegation of a denial of reasonable accommodation for a disability as a “personnel action”
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DOUGLAS T. COOKSEY, DOCKET NUMBER
Appellant, CH-1221-22-0067-W-1
v.
DEPARTMENT OF THE NAVY, DATE: April 16, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Douglas T. Cooksey , Taylorsville, Kentucky, pro se.
Danielle Huckleberry , Crane, Indiana, 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 this matter to the Central 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
DISCUSSION OF ARGUMENTS ON REVIEW
To establish jurisdiction in a typical IRA appeal, an appellant must show
by preponderant evidence 2 that he exhausted his administrative remedies before
the Office of Special Counsel (OSC) and make nonfrivolous allegations of the
following: (1) he made a disclosure described under 5 U.S.C. § 2302(b)(8) or
engaged in a protected activity described under 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 a personnel action as defined by
5 U.S.C. § 2302(a). Chambers v. Department of Homeland Security, 2022 MSPB
8, ¶¶ 11, 14. A nonfrivolous allegation is an assertion that, if proven, could
establish the matter at issue. 5 C.F.R. § 1201.4(s); see Hessami v. Merit Systems
Protection Board, 979 F.3d 1362, 1369 (Fed. Cir. 2020) (holding that “when
evaluating the Board’s jurisdiction over a whistleblower action, the question of
whether the appellant has non-frivolously alleged protected disclosures that
contributed to a personnel action must be determined based on whether the
[appellant] alleged sufficient factual matter, accepted as true, to state a claim that
is plausible on its face”). Generally, the Board will consider an allegation
nonfrivolous when, under oath or penalty of perjury, an individual makes an
allegation that is more than conclusory, plausible on its face, and material to the
legal issues in the appeal. 5 C.F.R. § 1201.4(s). Any doubt or ambiguity as to
whether the appellant made nonfrivolous allegations of IRA jurisdiction should
be resolved in favor of affording the appellant a hearing . Grimes v. Department
of the Navy, 96 M.S.P.R. 595, ¶ 12 (2004).
In the initial decision, the administrative judge concluded that the appellant
failed to make a nonfrivolous allegation that he had made a protected disclosure
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); accordingly, she dismissed the
2
Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
3
matter for lack of jurisdiction. Initial Appeal File (IAF), Tab 24, Initial Decision
(ID) at 10-21.
The appellant has filed a petition for review, the agency has filed a
response, and the appellant has filed a reply to the agency’s response. Petition
for Review (PFR) File, Tabs 1, 3-4. In his petition and reply, the appellant argues
the following: (1) the administrative judge erred in adjudicating his motions;
(2) the administrative judge erred with regards to the parties’ status conference;
(3) he made a nonfrivolous allegation of a protected disclosure under 5 U.S.C.
§ 2302(b)(8); and (4) he made a nonfrivolous allegation of protected activity
under 5 U.S.C. § 2302(b)(9)(D). 3 PFR File, Tab 1 at 4-32, Tab 4 at 4-15.
The appellant’s assertions regarding his motions do not warrant a different
outcome.
The appellant contends that the administrative judge erred in adjudicating
four motions that he filed, all of which related, in some capacity, to the agency
representative untimely filing the agency’s “Designation of Representative” form
and failing to provide her complete contact information on the form. PFR File,
Tab 1 at 5-7; IAF, Tabs 8-12. 4 The appellant contends that, because of these
errors, the administrative judge should have, among other things, rejected the
3
We have considered the additional arguments raised by the appellant on review,
including his claim that the agency should have advised him of his right to file a
complaint with OSC, PFR File, Tab 1 at 31; however, we find that none of these
arguments compel a different outcome.
4
The appellant also asserts that the agency representative falsely claimed in a filing that
the appellant already had her contact information because she had been the agency
representative for prior complaints that he had filed. PFR File, Tab 1 at 7, Tab 4 at 11;
IAF, Tab 15 at 5. The appellant avers that he has not filed any prior complaints and
seemingly argues that agency counsel’s false perception that he has done so establishes
Board jurisdiction over this matter. PFR File, Tab 1 at 7 . We disagree. To the extent
the appellant also argues that the agency’s insinuation that he has filed prior complaints
either rendered the administrative judge biased against him or that there was otherwise
improper contact between the administrative judge and the agency, id. at 7-10, we find
his arguments both unsubstantiated and unavailing, see Vaughn v. Department of the
Treasury, 119 M.S.P.R. 605, ¶ 19 (2013) (finding that broad and general allegations of
bias are insufficient to overcome the presumption of honesty and integrity).
4
agency’s pleadings and ruled in his favor. E.g., PFR File, Tab 1 at 8, 12-15. We
disagree.
Following a telephonic status conference, the administrative judge issued
an order that addressed the appellant’s contention that the agency had failed to
properly designate a representative. IAF, Tab 19 at 2-4. The administrative
judge explained that, although the agency erred by failing to include the
representative’s contact information, the error was correctible; accordingly, she
provided agency counsel’s contact information in her order and denied the
appellant’s four motions stemming from the agency’s oversight. Id. at 2-4 & n.1.
We discern no basis to disturb her rulings. See Key v. General Services
Administration, 60 M.S.P.R. 66, 68 (1993) (stating that an administrative judge
has broad discretion in controlling the proceedings before her). Moreover, the
Board cannot, as the appellant seemingly requests, find jurisdiction over his
allegations as a remedy for the agency’s errors. See Maddox v. Merit Systems
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985) (explaining that the Board’s
jurisdiction is limited to those matters over which it has been given jurisdiction
by law, rule, or regulation). In any event, the appellant fails to show that any of
the agency’s alleged errors or omissions precluded him from making nonfrivolous
allegations relevant to the jurisdictional issue. 5 See Davis v. Department of
Defense, 103 M.S.P.R. 516, ¶ 13 (2006) (finding that, when an appeal is
dismissed for lack of jurisdiction, there is no prejudice to an appellant’s
5
The appellant relatedly argues that the administrative judge failed to rule on two other
filings that he submitted. PFR File, Tab 1 at 13, 30; IAF, Tabs 20-21. In these filings,
the appellant (1) objected to the administrative judge’s denial of his motions and
(2) requested that the administrative judge order the agency to comply with 5 C.F.R.
§ 1201.25, a Board regulation that pertains to the contents of an agency’s response.
IAF, Tabs 20-21. We find the appellant’s arguments regarding these filings unavailing,
and we deny the latter request. Indeed, the appellant fails to show that any of the
administrative judge’s purported errors that he identifies on review precluded him from
making nonfrivolous allegations relevant to the jurisdictional issue. PFR File, Tabs 1,
4; see Karapinka v. Department of Energy, 6 M.S.P.R. 124 (1981) (explaining that the
administrative judge’s procedural error is of no legal consequence unless it is shown to
have adversely affected a party’s substantive rights).
5
substantive rights based on the absence of discovery that did not seek information
that would establish the Board’s jurisdiction). Thus, his assertions are
unavailing.
The appellant’s assertions regarding the parties’ status conference do not warrant
a different outcome.
The appellant identifies a series of purported errors related to the parties’
telephonic status conference; however, we find that none of these alleged errors
warrant a different outcome. PFR File, Tab 1 at 8-9. For example, the appellant
argues that the administrative judge stated in her order memorializing the parties’
conference that she would schedule a follow-up conference; however, she never
did. Id. at 9. The appellant asserts that, as a result of this statement, he believed
that he would have another opportunity to “discuss the record with the
[administrative judge and the agency], to ensure that the material facts of the case
[were] being correctly interpreted.” Id.
The administrative judge stated as follows in the subject order: “After
February 7, 2022 I will issue an order detailing what, if any, claims the Board has
jurisdiction over and I will schedule our next status conference to discuss the case
process moving forward including discovery and prehearing and hearing
deadlines.” IAF, Tab 19 at 2. Although the administrative judge referenced a
subsequent status conference, the language of her order indicated that the subject
of any such conference would be discovery and deadlines, i.e., she did not
indicate that it would be an opportunity for the appellant to clarify his
jurisdictional allegations. Id. Thus, we find unavailing the appellant’s assertion
that the administrative judge either misled him or improperly denied him an
opportunity to present his case. See Graves v. Department of Veterans Affairs,
123 M.S.P.R. 434, ¶ 22 (2016) (explaining that an appellant in an IRA appeal is
entitled to a hearing on the merits if, after exhausting his remedy with OSC, he
makes nonfrivolous allegations that he engaged in protected activity that was a
contributing factor in a personnel action); see also Oscar v. Department of
6
Agriculture, 103 M.S.P.R. 591, ¶ 7 (2006) (explaining that an appellant is not
entitled to a hearing on the threshold issue of jurisdiction because the Board has
jurisdiction over such an appeal only if the appellant makes the requisite
nonfrivolous allegations, and whether allegations are nonfrivolous is determined
on the written record).
The appellant’s assertions that he made a nonfrivolous allegation of a protected
disclosure under 5 U.S.C. § 2302(b)(8) are unavailing.
The appellant’s assertions regarding his second alleged protected
disclosure are unpersuasive. 6
The appellant challenges the administrative judge’s conclusion that he
failed to make a nonfrivolous allegation of a protected disclosure under 5 U.S.C.
§ 2302(b)(8) via what he categorized as “Disclosure #2.” PFR File, Tab 1
at 20-25; IAF, Tab 4 at 18. Regarding this disclosure, the appellant alleged
before the administrative judge that, in a January 8, 2019 request for
reconsideration of an incentive pay decision, he disclosed issues regarding
reasonable accommodation, a hostile work environment, and a systemic policy of
discrimination towards employees with disabilities. IAF, Tab 4 at 18, Tab 5
at 14-15. We agree with the administrative judge’s conclusion that these
disclosures do not fall under 5 U.S.C. § 2302(b)(8); indeed, the Board’s IRA
jurisdiction does not extend to claims of reprisal for opposing practices made
unlawful by the Rehabilitation Act. ID at 17-18; see McCray v. Department of
the Army, 2023 MSPB 10, ¶¶ 19-22.
On review, the appellant describes his second disclosure differently;
indeed, he alleges that this disclosure also pertained to his supervisor’s failure to
consider a large portion of his job duties when evaluating his fiscal year 2018
performance. PFR File, Tab 1 at 20-22; IAF, Tab 4 at 18. In so alleging, the
appellant draws the Board’s attention to a particular document in the record and
6
The appellant does not discernably challenge the administrative judge’s conclusions
regarding what he identified as his first disclosure, and we discern no basis to disturb
them. IAF, Tab 4 at 5; ID at 4-5, 10-14.
7
avers that he disclosed his supervisor’s failure to consider his “total job
performance” for the relevant rating period in this document. PFR File, Tab 1
at 20-21 (citing IAF, Tab 5 at 14). Even assuming that this recharacterized
disclosure does not similarly fall under the purview of the Rehabilitation Act and
therefore outside of the Board’s IRA jurisdiction, we find that the appellant’s
assertions do not constitute a nonfrivolous allegation of a protected disclosure. 7
A protected disclosure is one that an appellant reasonably believes
evidences any violation of any law, rule, or regulation, gross mismanagement,
a gross waste of funds, an abuse of authority, or a substantial and specific danger
to public health and safety. Mudd v. Department of Veterans Affairs,
120 M.S.P.R. 365, ¶ 5 & n.3 (2013). The proper test for determining whether
an appellant had a reasonable belief that his disclosures were protected is whether
a disinterested observer with knowledge of the essential facts known to and
readily ascertainable by the appellant could reasonably conclude that the actions
evidenced any of the conditions set forth in 5 U.S.C. § 2302(b)(8). Id., ¶ 5.
The appellant’s allegations on review, which recharacterize the subject
disclosure, do not warrant a different outcome. PFR File, Tab 1 at 20-25; IAF,
Tab 4 at 18; see Keefer v. Department of Agriculture, 92 M.S.P.R. 476, ¶ 18 n.2
(2002) (indicating that an appellant is required to articulate claims with
reasonable clarity and that the Board is not obligated to pore through a
voluminous record to make sense of various allegations); see also Banks v.
Department of the Air Force, 4 M.S.P.R. 268, 271 (1980) (finding that the Board
generally will not consider an argument raised for the first time in a petition for
review absent a showing that it is based on new and material evidence not
previously available despite the party’s due diligence). In any event, even if the
appellant had timely raised these allegations with the administrative judge, we
find that they do not amount to a nonfrivolous allegation of a protected disclosure
7
Indeed, the appellant seemingly alleges that the agency purposefully altered his job
functions due to disability discrimination and retaliation for requesting a reasonable
accommodation. PFR File, Tab 1 at 22-24; see McCray, 2023 MSPB 10, ¶ 22.
8
under 5 U.S.C. § 2302(b)(8). To this end, although the appellant contends that he
disclosed a violation of an Office of Personnel Management regulation pertaining
to performance ratings, i.e., 5 C.F.R. § 430.208, the document that he references
evinces that he merely stated that, according to an agency manager, consideration
had not been “given to [his] accomplishments . . . for approximately 8 months of
the rating period.” 8 IAF, Tab 5 at 14. We find that this statement does not
amount to a nonfrivolous allegation of a violation of law, rule, or regulation, or
any of the other categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8). See
Gryder v. Department of Transportation, 100 M.S.P.R. 564, ¶ 13 (2005) (finding
that the appellant’s conveyance of his disagreement with the agency’s decision
not to rehire him did not amount to a protected disclosure).
The appellant’s assertions regarding his third alleged disclosure are
unavailing.
The appellant challenges the administrative judge’s conclusion that he
failed to make a nonfrivolous allegation of a protected disclosure under 5 U.S.C.
§ 2302(b)(8) via what he categorized as “Disclosure #3.” PFR File, Tab 1
at 25-27. In this regard, he asserts that he disclosed that he was “not in a paid
work status” while performing official work tasks, i.e., working on an equal
employment opportunity (EEO) matter. Id. Again, even assuming that this
disclosure does not fall under the purview of the Rehabilitation Act and therefore
outside of the Board’s IRA jurisdiction, see McCray, 2023 MSPB 10, ¶ 22, we
nonetheless find that the appellant’s assertions do not constitute a nonfrivolous
allegation of a protected disclosure. To this end, the appellant averred before the
administrative judge that he made the subject disclosure in a January 4, 2019
8
We are mindful of the Federal Circuit’s decision in Hessami, wherein the court
explained that our jurisdictional determination in an IRA appeal “must be determined
based on whether the employee alleged sufficient factual matter, accepted as true, to
state a claim that is plausible on its face.” Hessami, 979 F.3d at 1369. However, we
need not consider an appellant’s allegations “in a vacuum.” Id. at 1369 n.5. Therefore,
we find it appropriate to look beyond the appellant’s characterization of his disclosure
on review to consider the document itself, which shows that the disclosure was not
exactly as the appellant has described.
9
email. IAF, Tab 4 at 9, 43-47. In this email, the appellant stated as follows:
“[w]ith the exception of three days for mandatory training last week and today, I
have been forced to take leave since 11 Dec 2018, even though I have continued
to support my [reasonable accommodation] request in good faith and
expeditiously, as required.” Id. at 46. He later asserted as follows in the same
email: “I have requested a NWA 9 charge # to cover the required vast amounts of
time that I have spent while on leave, but one has not been provided.” Id. We
discern no basis to disturb the administrative judge’s conclusion that these vague
statements pertained to, at most, an outstanding administrative billing issue, i.e.,
not a violation of law, rule, or regulation, or any of the other categories of
wrongdoing specified in 5 U.S.C. § 2302(b)(8). ID at 16; see El v. Department of
Commerce, 123 M.S.P.R. 76, ¶ 8 (2015) (finding that an employee’s disclosures
pertaining to delays in reimbursing his travel expenses only vaguely alleged
wrongdoing and thus failed to nonfrivolously allege a violation of law, rule, or
regulation), aff’d, 663 F. App’x 921 (Fed. Cir. 2016). Thus, the appellant’s
assertions in this regard do not provide a basis to disturb the initial decision.
The appellant’s allegations regarding his fourth disclosure do not
warrant a different outcome.
The appellant challenges the administrative judge’s conclusion regarding
what he categorized as his fourth disclosure. PFR File, Tab 1 at 27-30; ID
at 18-19 & n.4. This disclosure related to statements made by the appellant’s
former attorney in a May 24, 2019 letter addressed to an agency commanding
officer. PFR File, Tab 1 at 27-30; IAF, Tab 4 at 22, Tab 5 at 21-24. The
appellant asserts that this letter disclosed the following: (1) the agency was
wasting public funds; (2) the agency had committed a Privacy Act violation; and
(3) his supervisor had falsified a Government document. PFR File, Tab 1
at 28-29. For the reasons discussed below, we find that the appellant’s assertions
9
The appellant’s filings suggested that, in this context, “NWA” referred to a
labor/billing code that the appellant needed to account for work time spent on
EEO-related matters. IAF, Tab 5 at 5-8.
10
regarding his fourth disclosure do not constitute a nonfrivolous allegation of a
protected disclosure.
Regarding the agency’s purported wasting of public funds, the appellant
directs the Board’s attention to the fact that, in the May 24, 2019 letter, his
attorney stated that he had requested certain records from the agency because the
“records [were] required to establish that [the] Command ha[d] fostered an
environment of liberal reporting and improper use of labor funding.” 10 PFR File,
Tab 1 at 28; IAF, Tab 5 at 23. We find that this vague statement does not amount
to a protected disclosure under 5 U.S.C. § 2302(b)(8). See Salerno v. Department
of the Interior, 123 M.S.P.R. 230, ¶¶ 7-9 (2016) (concluding that the appellant
failed to make a nonfrivolous allegation that he reasonably believed he had
disclosed a violation of law when he made vague allegations of wrongdoing and
referenced broad statutory provisions). Indeed, although the appellant has
explained to the Board why he believes that the agency was wasting funds and
improperly using labor charge codes, he did not discernably identify any
disclosures concerning these alleged improprieties apart from his attorney’s
statement regarding the need for agency records in order to “establish” that
funding improprieties were occurring at the appellant’s employing agency. IAF,
Tab 4 at 26-27, Tab 5 at 23; see Doster v. Department of the Army, 56 M.S.P.R.
251, 253-54 (1993) (concluding that the Board lacked jurisdiction when the
appellant’s filings contained a litany of allegations of agency improprieties but
failed to discernably allege any protected disclosures regarding the same).
Regarding his alleged protected disclosure concerning the Privacy Act, the
appellant seemingly argues that, although his attorney referenced a “HIPPA [sic]
violation” in the May 24, 2019 letter, his attorney intended to refer to a Privacy
Act violation and, therefore, made a protected disclosure related thereto. PFR
File, Tab 1 at 29-30. He also reasserts that agency personnel improperly accessed
10
The letter referenced an email wherein an agency employee requested that agency
personnel use a particular time code so that unused money would not have to be
returned “to the program office.” IAF, Tab 5 at 9, 23.
11
and discussed his medical information, ostensibly in violation of the Privacy Act.
Id.; IAF, Tab 4 at 25. We find the appellant’s assertions unavailing; indeed, the
sole disclosure that he discernably identifies regarding the agency’s purported
mishandling of his information is the May 24, 2019 letter wherein his attorney
referred to unspecified, “very serious allegations pertaining to violations of” the
Health Insurance Portability and Accountability Act of 1996. IAF, Tab 5 at 21;
see El, 123 M.S.P.R. 76, ¶ 6 (explaining that vague, conclusory, unsupported, and
pro forma allegations of alleged wrongdoing do not meet the nonfrivolous
pleading standard needed to establish the Board’s jurisdiction) ; Doster,
56 M.S.P.R. at 253-54. Thus, the appellant’s assertions do not warrant a different
outcome.
Lastly, the appellant draws the Board’s attention to the fact that his former
attorney stated as follows in the May 24, 2019 letter: “[I]t appears that [the
appellant’s supervisor] has misrepresented herself by digitally signing Ref (E) on
May 1, 2019 at 16:28:30, certifying she had met with [the appellant] to discuss
the document.” 11 PFR File, Tab 1 at 27-28; IAF, Tab 5 at 23. The appellant
contends that, through this statement, he disclosed that the agency had falsified a
document. PFR File, Tab 1 at 28. We find these contentions unavailing; indeed,
the appellant presents this allegation differently on review. To this end, he did
not discernably allege before the administrative judge that the agency had
retaliated against him as a result of a protected disclosure concerning this
document; rather, as discussed herein, he alleged that the agency had retaliated
against him because he had engaged in protected activity by refusing to sign this
document upon his supervisor’s request. 12 IAF, Tab 4 at 4, 22, 28; see Keefer,
11
The appellant submitted into the record a copy of “Ref (E),” i.e., a document setting
forth his performance standards for the period of October 28, 2018, to September 30,
2019. IAF, Tab 4 at 50-51.
12
Regarding his fourth disclosure, the appellant provided a general list of several issues
that he believed that his attorney had disclosed on his behalf in the letter. IAF, Tab 4
at 22. Although the appellant listed “falsifying records,” he did not identify the
“records” to which he referred.
12
92 M.S.P.R. 476, ¶ 18 n.2; Banks, 4 M.S.P.R. at 271. In any event, even
assuming the appellant had timely made this allegation, a different outcome
would not be warranted. To this end, the May 24, 2019 letter indicates that the
appellant’s attorney, through the above statement, was disclosing EEO retaliation.
IAF, Tab 5 at 23; see Hessami, 979 F.3d at 1369 n.5 (stating that the Board need
not consider an appellant’s allegations “in a vacuum”). Indeed, this portion of the
letter asserted that the appellant had been “selectively discriminated and
retaliated against for filing a lawful . . . Reasonable Accommodation Request.”
IAF, Tab 5 at 23. The letter also stated as follows: “[the appellant] has made
numerous oral reasonable accommodation requests, and as a result, has been
retaliated against by your management team.” Id. The letter subsequently
referenced the appellant’s supervisor’s certification of “Ref (E)” and, among
other things, sought for the appellant both “protection from further retaliation”
and “protection from [his supervisor].” Id. at 23-24. Accordingly, this disclosure
falls outside of the Board’s IRA jurisdiction. See McCray, 2023 MSPB 10, ¶ 22
(concluding that the Board’s IRA jurisdiction does not extend to claims of
reprisal for complaining of practices made unlawful by the Rehabilitation Act);
see also Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶ 44
(explaining that requesting a reasonable accommodation is protected under the
Rehabilitation Act).
We find that the appellant made a nonfrivolous allegation that he engaged in
protected activity under 5 U.S.C. § 2302(b)(9)(D).
The appellant reasserts that he made a nonfrivolous allegation of protected
activity under 5 U.S.C. § 2302(b)(9)(D) by alleging that he refused to comply
with his supervisor’s order that he sign his 2019 performance goal document.
PFR File, Tab 1 at 16-20; IAF, Tab 4 at 28, 50-51. The appellant argues that his
supervisor asked him to sign this document, i.e., to certify that he had met with
her to discuss his performance standards; however, because he and his supervisor
had not actually met, he refused to do so. PFR File, Tab 1 at 16-17. He avers
13
that signing the form as directed would have caused him to falsify a Government
record. 13 Id. at 16-18.
The relevant statutory provision, 5 U.S.C. § 2302(b)(9)(D), protects
employees from retaliation for “refusing to obey an order that would require the
individual to violate a law, rule, or regulation.” Although the appellant does not
identify the law, rule, or regulation that he would have violated had he falsely
certified this document, we find that he was not required to do so because the
false certification of a document clearly implicates the statute. See DiGiorgio v.
Department of the Navy, 84 M.S.P.R. 6, ¶ 14 (1999). Accordingly, we find that
the appellant made a nonfrivolous allegation that he engaged in protected activity
under 5 U.S.C. § 2302(b)(9)(D). 14 We also find that the appellant has satisfied
the contributing factor and personnel action jurisdictional criteria with respect to
this alleged protected activity. To this end, the appellant seemingly asserted that,
as a result of this activity, his supervisor did not provide him with his 2019
performance evaluation or an “incentive pay” decision. IAF, Tab 4 at 29. Both
(1) the failure to provide a performance evaluation and (2) a decision concerning
pay/a monetary award constitute a “personnel action” under the statute. See
5 U.S.C. § 2302(a)(2)(A)(viii), (ix). The appellant also asserted that, as a result
of this activity, his supervisor “finally signed” a letter denying his request for a
reasonable accommodation, i.e., telework. IAF, Tab 4 at 28-29. In this regard,
the appellant appears to be alleging that his 5 U.S.C. § 2302(b)(9)(D) activity
contributed to a significant change in his working conditions. See 5 U.S.C.
§ 2302(a)(2)(A)(xii). We make no finding that the denial of a reasonable
13
The document indicates that the appellant was asked to sign/certify the following
statement: “I certify my Supervisor has met with me to establish and discuss
performance standards and [expectations].” IAF, Tab 4 at 50-51.
14
In the initial decision, the administrative judge found that the appellant had not made
a nonfrivolous allegation of protected activity under 5 U.S.C. § 2302(b)(9)(D) because,
among other reasons, he did not specifically allege that “he communicated his refusal to
sign the document” to his supervisor. ID at 19-20. We disagree with this finding,
which conflates the appellant’s protected activity with the contributing factor
jurisdictional criterion.
14
accommodation constitutes a personnel action under the statute; however, we find
that, at the jurisdictional stage, the appellant’s allegations are sufficient and that
the parties may develop this issue on remand. See Reid v. Merit Systems
Protection Board, 508 F.3d 674, 679 (Fed. Cir. 2007) (declining to consider an
allegation of a denial of reasonable accommodation for a disability as a
“personnel action”).
Accordingly, we find that the appellant made a nonfrivolous allegation that
he engaged in protected activity under 5 U.S.C. § 2302(b)(9)(D) that contributed
to both (1) the agency’s failure to provide him with a 2019 performance review
and (2) the agency’s failure to provide him with incentive pay. 15 Thus, we find
that he is entitled to his requested hearing and a decision of these claims. IAF,
Tab 1 at 2; see Salerno, 123 M.S.P.R. 230, ¶ 5. Prior to conducting a hearing, the
administrative judge shall afford the parties a reasonable opportunity to complete
discovery and order the parties to submit any other evidence that she deems
necessary to adjudicate the merits of this appeal. See Lewis v. Department of
Defense, 123 M.S.P.R. 255, ¶ 14 (2016).
15
We also find that the appellant proved by preponderant evidence that he exhausted all
of these claims with OSC. IAF, Tab 1 at 15, Tab 4 at 28; see Chambers, 2022 MSPB 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. 16
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
16
In the remand initial decision, the administrative judge may reincorporate prior
findings as appropriate, consistent with this Remand Order.