The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AMANDA ALLRED, DOCKET NUMBER
Appellant, SF-1221-22-0301-W-1
v.
DEPARTMENT OF THE ARMY, DATE: April 16, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Kellee B. Kruse , Esquire, Washington, D.C., for the appellant.
Roni R. Reed , Esquire, Walla Walla, Washington, 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 her 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 is a GS-12 Land Surveyor with the agency. Initial Appeal
File (IAF), Tab 1 at 1, 6. The appellant made the following allegations before the
administrative judge. In August 2021, the appellant witnessed a coworker, R.B.,
mishandling expensive equipment. Id. at 7-8. The appellant reported this
observation to her supervisor and stated that R.B. had been hostile to her in the
field. Id. In September 2021, the appellant told R.B. that he had improperly
configured a piece of equipment, which resulted in inconsistencies in his data
collection. Id. at 8. R.B. threatened to quit because of the appellant’s comments.
Id. On October 13, 2021, the appellant’s supervisor sent her a letter of
counseling based, in part, on “condescending and dismissive” behavior toward
R.B. in September 2021. Id.; IAF, Tab 6 at 65. On the same day, the appellant’s
supervisor asked her to approve land surveys conducted by R.B., which made the
appellant uncomfortable because she believed that R.B. was not qualified to
complete the surveys without supervision. IAF, Tab 1 at 8-9.
On or around December 15, 2021, the appellant learned that R.B. was
completing additional unsupervised surveys, which she believed he was
unqualified to complete. Id. at 9. The appellant had previously offered to
complete the surveys herself, but her supervisor refused to provide the required
funding. Id. On or around December 16, 2021, 2 the appellant told her supervisor
that she would no longer approve R.B.’s surveys if he completed them without
supervision. Id. During a meeting with her supervisor on this date, the appellant
explained that R.B. “lacked the industry knowledge to complete” the surveys and
reiterated her concerns that R.B.’s surveys were not accurate. Id.
On January 13, 2022, the appellant sent an email to her supervisor
reiterating concerns about the agency’s survey practices, wherein she stated that
the agency was not in compliance with relevant law and guidelines. IAF,
2
The appellant asserts in her initial appeal that this event occurred on December 16,
2022. IAF, Tab 1 at 9. This appears to be a typographical error.
3
Tab 7 at 556-57. She stated that land surveys were being conducted without her
knowledge or oversight, in violation of numerous policies and the Brooks Act,
and that she was improperly being asked to sign off on these projects, which
could result in the loss of her professional licenses. Id.
The appellant filed a whistleblower retaliation complaint with the Office of
Special Counsel (OSC) on January 19, 2022. IAF, Tab 1 at 11. After receiving a
close-out letter on February 8, 2022, the appellant filed a Board appeal
and requested a hearing. Id. at 2, 11. The administrative judge issued a
jurisdictional order and the appellant filed documents and argument in response.
IAF, Tabs 3, 6-7, 12. After reviewing the appellant’s pleadings, the
administrative judge found that the appellant alleged the following protected
disclosures: (1) on or around August 3, 2021, the appellant reported R.B.’s
mishandling of agency equipment; (2) in or around September 2021, the appellant
disclosed to her supervisor that the agency was using a non-certified land
surveyor; (3) on or around September 27, 2021, the appellant reported that R.B.
was not properly configuring land survey equipment, which could result in
inaccurate results; (4) in or around September 2021, the appellant reported to her
supervisor that she was being asked to certify work that she did not oversee in
violation of the Code of Ethics of Professional Land Surveyors as outlined by
Washington State law; (5) on or around December 16, 2021, the appellant
disclosed that allowing R.B. to conduct surveys without supervision violated state
law and U.S. Army Corps of Engineers (USACE) manuals and she told her
supervisor that she refused to certify land surveys that she did not oversee; (6) on
January 12, 2022, the appellant disclosed to the equal employment opportunity
(EEO) office that she was being pressured to sign off on surveys she did not
oversee; and (7) on or around January 13, 2022, the appellant reiterated to her
supervisor by email that the agency was violating ethical standards, USACE
engineering manuals, Washington State law, and the Brooks Act. IAF, Tab 15,
Initial Decision (ID) at 4-5. The administrative judge found that the appellant
4
alleged the following retaliatory personnel actions: (1) the agency excluded the
appellant from projects that require a certified professional land surveyor; (2) the
agency repeatedly asked the appellant to sign off on projects that she did not
supervise; (3) the agency issued the appellant a letter of counseling on
October 13, 2021; (4) the agency refused to authorize funding for the appellant to
conduct land surveys in the field; and (5) the agency allowed R.B. to conduct land
surveys without the proper authorization. 3 ID at 5.
Without holding a hearing, the administrative judge issued an initial
decision dismissing the appeal for lack of jurisdiction. ID. Regarding the alleged
disclosures, the administrative judge found that the appellant proved exhaustion
over the September 2021 disclosures, i.e., Disclosures 2-4, and no others.
ID at 8-9. She found that the appellant exhausted each of the alleged personnel
actions. Id. She found, however, that the appellant failed to nonfrivolously
allege that the September 2021 disclosures were protected under 5 U.S.C.
§ 2302(b)(8). ID at 11-19. Although the administrative judge found that the
appellant failed to establish jurisdiction over her appeal because she did not
nonfrivolously allege that her disclosures were protected, the administrative judge
made an alternative finding that, even if the disclosures were protected, the
appellant did not make a nonfrivolous allegation that she was subjected to a
personnel action covered by 5 U.S.C. § 2302(a)(2)(A). ID at 19-29.
The appellant has filed a petition for review, the agency has filed a
response, and the appellant has filed a reply. Petition for Review (PFR) File,
Tabs 1, 5-6.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction over an IRA appeal if the appellant has
exhausted her administrative remedies before OSC and makes nonfrivolous
allegations that (1) she engaged in whistleblowing activity by making a disclosure
3
On review, the appellant has not challenged the administrative judge’s summary of the
alleged disclosures and personnel actions. Petition for Review File, Tab 1 at 10-11.
5
protected under 5 U.S.C. § 2302(b)(8) or engaged in protected activity under
5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and (2) the disclosure 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). Edwards v. Department of Labor,
2022 MSPB 9, ¶ 8, aff’d, No. 2022-1967, 2023 WL 4398002 (Fed. Cir. July 7,
2023). The question of whether the appellant has made a nonfrivolous allegation
at the jurisdictional stage is based on whether she alleged sufficient factual
matter, accepted as true, to state a claim that is plausible on its face. See Hessami
v. Merit Systems Protection Board, 979 F.3d 1362, 1368-69 (Fed. Cir. 2020).
Any doubt or ambiguity as to whether the appellant made nonfrivolous
jurisdictional allegations should be resolved in favor of finding jurisdiction. See
Skarada v. Department of Veterans Affairs, 2022 MSPB 17, ¶ 6. For the reasons
set forth herein, we find that the appellant has established jurisdiction over her
IRA appeal, and we remand the matter to the regional office for a hearing on the
merits.
The appellant has exhausted her claims with OSC.
An appellant in an IRA appeal must exhaust her administrative remedies by
seeking corrective action from OSC before seeking corrective action from the
Board. 5 U.S.C. § 1214(a)(3). The substantive requirements of exhaustion are
met when an appellant provided OSC with a sufficient basis to pursue
an investigation; however, an appellant may give a more detailed account of her
whistleblowing activity before the Board than she did to OSC. Chambers v.
Department of Homeland Security, 2022 MSPB 8, ¶ 10 (2022). An appellant may
demonstrate exhaustion through her initial OSC complaint, correspondence with
OSC, or other sufficiently reliable evidence, such as an affidavit or declaration
attesting that the appellant raised with OSC the substance of the facts in the
Board appeal. Id., ¶ 11. Exhaustion must be proved by preponderant evidence.
Id.; 5 C.F.R. § 1201.57(c)(1).
6
In her OSC complaint, the appellant alleged that the agency was conducting
land surveys without her knowledge, excluding her from assignments, and
coercing her to sign off on projects that she did not oversee. IAF, Tab 6 at 17,
26. She also stated to OSC that she had reported a hostile coworker and that the
agency retaliated against her by issuing a letter of counseling, subjecting her to a
hostile work environment, and changing her duties and working conditions. Id.
In response to OSC’s preliminary determination, the appellant added that “there
are serious ethical concerns and violations that unqualified and inexperienced
personnel are performing land surveying without supervision” and that “[t]he
letter of counseling referenced in my complaint is only one part of a pattern of
harassment that has been ongoing since at least September 2021.” Id. at 58-62.
We find that the appellant’s filings were sufficient to provide OSC with a
basis to pursue an investigation. See Chambers, 2022 MSPB 8, ¶ 10. The claims
raised before the administrative judge, as summarized in the initial decision, ID
at 4-5, are substantively similar to the allegations raised before OSC, IAF, Tab 6
at 17, 26, 58-62. Although, in her correspondence with OSC, the appellant did
not explicitly reference her allegation that R.B. mishandled equipment in
August 2021, we find that OSC had a sufficient basis to pursue an investigation
of this allegation because it is part of the same disclosure wherein the appellant
complained to her supervisor about R.B.’s hostility, which is explicitly referenced
in her OSC complaint. Id. at 26; IAF, Tab 7 at 5 (explaining that the appellant
reported to her supervisor that R.B. was hostile to her in the field and that he had
mishandled equipment). Accordingly, we find that the appellant has exhausted
her alleged protected disclosures with OSC. We also find, as did the
administrative judge, that the appellant exhausted the alleged personnel actions
with OSC. ID at 9.
7
The appellant nonfrivolously alleged that she made protected disclosures pursuant
to 5 U.S.C. § 2302(b)(8).
At the jurisdictional stage, an appellant may show that she made a
protected disclosure by nonfrivolously alleging that she made a disclosure that
she reasonably believed evidences a violation of 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. See 5 U.S.C. § 2302(b)(8); see
also Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 5 (2013).
The proper test for determining whether an employee had a reasonable belief that
her disclosures were protected is whether a disinterested observer with knowledge
of the essential facts known to, and readily ascertainable by, the employee could
reasonably conclude that the actions evidenced one of the categories of
wrongdoing set forth in 5 U.S.C. § 2302(b)(8). See Salazar v. Department of
Veterans Affairs, 2022 MSPB 42, ¶ 24.
Disclosure 1
The appellant’s first disclosure concerns R.B.’s alleged mishandling of
survey equipment, including “allowing a GPS receive[r] and a range pole, worth
over $10,000, to bounce unrestrained in the back of his pick-up truck.”
IAF, Tab 1 at 7-8. The appellant stated that she worried about unnecessary
damage to the survey equipment, which could impact measurements in the field.
IAF, Tab 7 at 5. The appellant has not alleged that the equipment was in fact
damaged due to the alleged mishandling.
In her jurisdictional response, the appellant argued that R.B.’s mishandling
of equipment, “both separated and together” with other allegations, evidence
violations of agency guidelines, the Code of Ethics of Professional Land
Surveyors, and the minimum standards outlined in Washington State codes,
regulations, and law. Id. at 13. Aside from this conclusory allegation, which is
insufficient to meet the nonfrivolous allegation standard, the appellant has not
explained how R.B.’s behavior violated a law, rule, regulation, or policy. See El
8
v. Department of Commerce, 123 M.S.P.R. 76, ¶¶ 6-8 (2016) (finding that vague,
conclusory, unsupported, and pro forma allegations of alleged wrongdoing do not
meet the nonfrivolous allegation pleading standard).
To the extent the appellant asserts that R.B.’s conduct, as described in this
disclosure, presents a danger to public health and safety, we find that she has
failed to make a nonfrivolous allegation of such. In determining whether
an appellant has nonfrivolously alleged that a disclosure evidenced a substantial
and specific danger to public health or safety, the Board considers the following
factors: (1) the likelihood of harm resulting from the danger; (2) when the
alleged harm may occur; and (3) the nature of the potential harm. See Skarada,
2022 MSPB 17, ¶ 12 n.3. The appellant’s allegation is so vague that the Board is
unable to determine the likelihood of harm resulting from the danger, the
imminence of any potential harm, and the nature of the potential harm. Any
danger resulting from R.B.’s alleged failure to restrain equipment in his truck is
too speculative to support a finding of jurisdiction over this allegation. See
Schoenig v. Department of Justice, 120 M.S.P.R. 318, ¶ 10 (2013) (explaining
that, although a disclosure of an imminent event is protected, a disclosure of
speculative danger is not).
Finally, to the extent the appellant alleges that R.B.’s failure to properly
restrain equipment constitutes a gross waste of funds, we find that she failed to
nonfrivolously allege that the agency expended resources that are significantly
out of proportion to the benefit reasonably expected to accrue to the Government.
See Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶ 10 n.3 (2015).
Although the appellant has alleged that R.B. mishandled expensive equipment,
she has not alleged that the equipment was damaged or destroyed resulting in a
loss of funds. Accordingly, we find that the appellant has failed to nonfrivolously
allege that this disclosure is protected under 5 U.S.C. § 2302(b)(8).
9
Disclosures 2-7
The appellant’s remaining disclosures involve concerns regarding the
agency’s selection of personnel to conduct land surveys, inaccurate survey
results, and improper requests for the appellant to sign off on surveys that she did
not oversee. ID at 4-5. Although the appellant made these disclosures on several
dates between September 2021, and January 2022, the subject of the disclosures
is similar, and thus, we consider them together. Id.
The core of the appellant’s complaints was that unlicensed and/or
unqualified personnel were performing work that required licensing. IAF, Tab 7
at 556, Tab 12 at 6, 20. She alleged, both to the agency and in her jurisdictional
response before the administrative judge, that R.B. was not qualified to conduct
land surveys on his own and that the agency improperly asked her to sign off on
surveys that she did not oversee, which put her license at risk. IAF, Tab 7 at 556.
She also alleged that she observed R.B. improperly configuring equipment, which
resulted in inconsistencies in his data collection. Id. at 5-6. She alleged that one
of the agency’s projects involved pump plants, which controlled the water level
of levies, and that incorrect measurements by as little as 1/1,000th of a foot could
cause flooding, like the damage caused by Hurricane Katrina in New Orleans.
Id. at 5. The appellant alleged that the agency’s conduct violated agency
policy, the Brooks Act, and unspecified provisions of Washington State law.
Id. at 556-57.
At this stage, we assume to be true the appellant’s allegations that some
surveying projects required licensing and that the agency ignored these
requirements. IAF, Tab 12 at 6; see Hessami, 979 F.3d at 1369. These
allegations appear to be supported by the record evidence. E.g., IAF, Tab 7 at 38
(discussing projects requiring licensed surveyors in an agency policy manual).
The appellant has cited to several sections of the Brooks Act, which appear to
apply to procurement of Federal contracts for architectural and engineering
10
services. Id. at 8 (citing 40 U.S.C. §§ 1101-1104). Even if the Brooks Act does
not directly apply to this situation, we believe the cited provisions are instructive.
40 U.S.C. § 1102 contemplates “professional services of an architectural or
engineering nature, as defined by state law, if applicable, that are required to be
performed or approved by a person licensed, registered, or certified to provide the
services described,” to include surveying and mapping. This seems to support the
appellant’s assertion that certain surveying activities required a licensed
professional. Although the appellant has not identified with specificity which
sections of Washington State law she believes the agency violated, that is not
required at the jurisdictional stage. See Baldwin v. Department of Veterans
Affairs, 113 M.S.P.R. 469, ¶ 12 (2010). We find that the appellant has alleged
sufficient facts, accepted as true, to find that she made protected disclosures
concerning work that was performed by unlicensed surveyors.
The appellant has also asserted that her disclosures about R.B.’s incorrect
measurements constitute a nonfrivolous allegation that she disclosed a substantial
and specific danger to public health and safety. PFR File, Tab 1 at 17-19.
On review, the appellant directs the Board’s attention to emails with her
supervisor in September and October 2021, wherein she alleged that
R.B. submitted incorrect measurements for a pump plant project. IAF, Tab 10
at 28-31. The appellant has asserted that the data and measurements in this
project must be extremely accurate in order to avoid flooding, which could be
catastrophic to the surrounding areas. IAF, Tab 1 at 7, Tab 7 at 5. In Skarada,
2022 MSPB 17, ¶ 12 n.3, the Board found that the appellant nonfrivolously
alleged that his disclosure about a cognitively impaired physician implicated a
substantial and specific danger to public health and safety because it “could
undoubtedly lead to immediate and serious harm to patients.” Although the
appellant’s allegation concerning R.B.’s allegedly inaccurate measurements was
not well developed before the administrative judge, we acknowledge that,
accepting as true the appellant’s allegation that inaccurate measurements could
11
cause catastrophic flooding, this could implicate loss of life and/or property, and
therefore the appellant has nonfrivolously alleged that she disclosed a substantial
and specific danger to public health and safety.
The appellant has nonfrivolously alleged that the agency subjected her to a
personnel action.
In the initial decision, the administrative judge found that the appellant
failed to nonfrivolously allege that the agency subjected her to a personnel action.
ID at 19-29. Specifically, she found that, considered individually, none of the
appellant’s allegations met the definition of personnel action as defined by
5 U.S.C. § 2302(a)(2)(A)(i)-(xi), and that, considering the appellant’s allegations
collectively, she failed to allege that she was subjected to a hostile work
environment that changed her duties, responsibilities, or working conditions. See
5 U.S.C. § 2302(a)(2)(A)(xii).
We disagree because the written counseling issued to the appellant is a
personnel action. ID at 22. In Johnson v. Department of Health and Human
Services, 93 M.S.P.R. 38, ¶¶ 15-16 (2002), the Board found that, for purposes of
jurisdiction, a letter of admonishment warning the appellant that his continued
failure to follow established procedures could result in discipline was a personnel
action because it sought to change the appellant’s behavior. Similarly, the
written counseling issued to the appellant in this case warned that “[f]urther
episodes that involve discourtesy towards your coworkers may result in
disciplinary actions being taken against you, up to and including removal from
Federal Service.” IAF, Tab 7 at 19. We therefore find that the appellant has
nonfrivolously alleged that she was subjected to a personnel action when she was
issued a letter of counseling.
Further, we find that the appellant nonfrivolously alleged that she was
subjected to a significant change in her duties, responsibilities, and working
conditions. In Skarada, the Board found that the appellant nonfrivolously alleged
that he suffered a significant change in his duties, responsibilities, and working
12
conditions, wherein he alleged that his chain of command directed him to stop
attending certain meetings and performing “extra duties,” and excluded him from
the hiring and interview process for two new hires. Skarada, 2022 MSPB 17,
¶¶ 15-17. Similarly, here, we have considered the alleged personnel actions
collectively, and we find that the appellant has nonfrivolously alleged that her
working conditions were changed when she received a letter of counseling, was
denied funding to complete projects, was not assigned to projects, and was
repeatedly asked to certify work that she believed she could not certify, resulting
in risk to her professional licenses. ID at 5. Accordingly, the appellant has
nonfrivolously alleged that she was subjected to personnel actions as defined by
5 U.S.C. § 2302(a)(2)(A)(xii).
The appellant has nonfrivolously alleged that her protected disclosures were a
contributing factor to the alleged personnel actions.
In order to meet the contributing factor jurisdictional element, an appellant
may raise a nonfrivolous allegation that the fact of, or content of, the protected
whistleblowing was one factor that tended to affect the personnel action in any
way. Baldwin, 113 M.S.P.R. 469, ¶ 22. One way that the appellant may do this is
through the knowledge/timing test, by nonfrivolously alleging that the official
taking the personnel action knew of the whistleblowing and that the personnel
action occurred within a period of time such that a reasonable person could
conclude that the whistleblowing was a contributing factor in the personnel
action. 5 U.S.C. § 1221(e)(1). The knowledge/timing test is not the only way to
demonstrate the contributing factor element. Dorney v. Department of the Army,
117 M.S.P.R. 480, ¶ 14 (2012). The Board will also consider 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 towards the official taking the action, or whether these individuals had a
desire or motive to retaliate against the appellant. Id., ¶ 15.
13
With the exception of Disclosure 6, which was made to the EEO office, the
appellant has alleged that she communicated each of the alleged disclosures to her
supervisor, who she claims is responsible for taking the alleged personnel actions.
IAF, Tab 1 at 6-11, Tab 7 at 4-8. She has therefore nonfrivolously alleged the
knowledge element for those disclosures.
Regarding timing, the appellant has alleged that her supervisor issued her a
counseling letter approximately 2 weeks after she complained that the agency was
using unqualified personnel to conduct land surveys, and that, between
October 2021 and January 2022, she was subjected to a hostile work environment
consisting of exclusion from projects, denial of funding, and repeated requests to
sign off on projects that she did not oversee. IAF, Tab 6 at 65, Tab 7 at 4-8. The
close temporal proximity between the alleged disclosures and the personnel
actions satisfies the timing element. See Easterbrook v. Department of Justice,
85 M.S.P.R. 60, ¶ 10 (2000) (finding that a personnel action taken within
7 months of the protected disclosure satisfied the knowledge/timing test).
We find that the appellant has not nonfrivolously alleged that Disclosure 6
was a contributing factor to the alleged personnel actions because she has not
satisfied the knowledge/timing test or provided other circumstantial evidence to
support a nonfrivolous allegation of the contributing factor element. See Dorney,
117 M.S.P.R. 480, ¶ 14.
14
ORDER
As set forth herein, we find that the appellant has established jurisdiction
over Disclosures 2-5 and 7, and each of the alleged personnel actions.
Accordingly, we remand this case to the regional office for a hearing on the
merits in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.