Micah Patterson v. Department of Agriculture

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MICAH PATTERSON, DOCKET NUMBER

Appellant, SF-1221-22-0263-W-1

v.

DEPARTMENT OF AGRICULTURE, DATE: April 24, 2024

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Micah Patterson , Springfield, Illinois, pro se.

Latriece Jones , Mobile, Alabama, 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 appeal to the Western 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

In December 2020, the agency appointed the appellant to a

competitive-service position as a GS-9 Agricultural Engineer in the agency’s

Natural Resources Conservation Service. Initial Appeal File (IAF), Tab 1

at 15-16, Tab 12 at 14. The agency terminated him in September 2021, prior to

the completion of his probationary period, for alleged misconduct occurring

between August and September 2021. IAF, Tab 1 at 7-8.

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

alleging that the agency subjected him to a hostile work environment and

terminated him in reprisal for the following protected disclosures, most of which

he made in September 2021: (1) the agency failed to obtain approval from the

Office of Personnel Management (OPM) for its performance appraisal system;

(2) the appellant’s team leader, who was responsible for training the appellant,

violated the Privacy Act of 1974 (the Privacy Act) by disclosing details of the

appellant’s performance appraisal in front of coworkers who did not have a need

to know; (3) the team leader took incorrect measurements at a construction

project, allowing the project to “pass”; and (4) inconsistencies between the

“Worksheet for Determination of Hazards Classification and Job Class for Dams

and Structures” and external requirements made it unclear whether the team

leader had proper job approval authority. IAF, Tab 1 at 18-23, 29-30, 34, Tab 9

at 31-32. OSC closed its investigation and informed the appellant of his Board

appeal rights. IAF, Tab 1 at 34-35.

3

The appellant timely filed this IRA appeal raising the same claims. 2

IAF, Tab 1 at 4, 19-23, Tab 7 at 4-9, 11-12, 14-23. The administrative judge

issued an order informing the appellant of his burden to establish Board

jurisdiction over his IRA appeal. IAF, Tab 3. In response, the appellant

submitted a narrative statement detailing each disclosure along with his

correspondence with, and additional information submitted to, OSC. IAF, Tab 7

at 4-55. The agency filed a motion to dismiss the appeal. IAF, Tab 12 at 5-13.

The administrative judge issued an initial decision dismissing the appeal

for lack of jurisdiction. IAF, Tab 20, Initial Decision (ID) at 1-2, 14. She found

that the appellant exhausted his administrative remedies with OSC, but that he

failed to make a nonfrivolous allegation that his disclosures were protected under

5 U.S.C. § 2302(b)(8). ID at 7-13.

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

agency has filed a response. Petition for Review (PFR) File, Tabs 3, 5. On

review, the appellant disputes the merits of his termination and disagrees with the

administrative judge’s findings regarding his disclosures. 3 PFR File, Tab 3

at 9-30.

2

This is the second appeal that the appellant has filed regarding his termination. The

same administrative judge previously issued an initial decision dismissing his prior

appeal for lack of jurisdiction. Patterson v. Department of Agriculture, MSPB Docket

No. SF-315H-22-0049-I-1, Tab 9, Initial Decision (0049 ID) at 1, 7. She found that the

appellant failed to establish jurisdiction over his termination as an otherwise appealable

action or an IRA appeal. 0049 ID at 4-6. As relevant to the instant IRA appeal, she

reasoned that the appellant’s whistleblower reprisal claim was premature because he

had not yet exhausted his OSC remedy. 0049 ID at 6. That decision became final after

neither party filed a petition for review. 0049 ID at 7; see 5 C.F.R. § 1201.113 (stating

that an initial decision generally will become the Board’s final decision 35 days after

issuance unless a party files a petition for review).

3

The appellant also alleges for the first time on review that his second-level supervisor

made fraudulent and defamatory statements related to the accuracy of the appellant’s

work. PFR File, Tab 3 at 30-31. The Board lacks jurisdiction over these tort law

claims. See Paul v. Department of Agriculture, 66 M.S.P.R. 643, 650 (1995).

Therefore, we decline to consider this argument on review.

4

DISCUSSION OF ARGUMENTS ON REVIEW

To establish Board jurisdiction over an IRA appeal, an appellant must show

that he exhausted his administrative remedies before OSC and make nonfrivolous

allegations of the following: (1) he 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 a

personnel action as defined by 5 U.S.C. § 2302(a)(2)(A). 4 5 U.S.C. §§ 1214(a)

(3), 1221(a)-(b); Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5

(2016). Specifically, protected whistleblowing occurs when an appellant makes a

disclosure that he reasonably believes 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. 5 U.S.C.

§ 2302(b)(8); Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶ 52.

The proper test for determining whether an employee 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 employee could

reasonably conclude that the actions evidenced a violation of a law, rule, or

regulation, or one of the other conditions set forth in 5 U.S.C. § 2302(b)(8).

Pridgen, 2022 MSPB 31, ¶ 52.

On review, the appellant challenges the administrative judge’s findings

regarding each of his alleged protected disclosures. PFR File, Tab 3 at 8-16, 19,

4

The administrative judge stated that, in determining whether disclosures are protected,

the Board only reviews the appellant’s characterization of the disclosures to OSC, not

his later characterization of those statements. ID at 8. After the initial decision was

issued in this case, the Board clarified the substantive requirements of exhaustion.

Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶ 10. An appellant may

give a more detailed account of his whistleblowing activities before the Board than he

did to OSC. Id. (citing Briley v. National Archives and Records Administration,

236 F.3d 1373, 1378 (Fed. Cir. 2001)). However, regardless of the standard the

administrative judge used, she determined that the appellant exhausted all of his alleged

protected disclosures. ID at 7 & n.5; IAF, Tab 7 at 4-10. The parties do not dispute

this finding and we discern no basis to disturb it.

5

21-25, 27-29. We agree with the administrative judge’s findings as to the

appellant’s disclosures regarding the agency allegedly failing to obtain OPM

approval of its performance appraisal system, 5 the team leader allegedly taking

incorrect measurements at a construction project, and inconsistencies between the

“Worksheet for Determination of Hazards Classification and Job Class for Dams

and Structures” and external requirements. However, for the reasons set forth

below, we find that the appellant has established jurisdiction over his claims

arising out of his disclosure involving the Privacy Act.

The appellant nonfrivolously alleged that his team leader violated the Privacy Act

by criticizing the appellant within earshot of others.

The administrative judge found that the appellant stated only a vague

allegation of wrongdoing when he disclosed to his first-level supervisor that, in

September 2021, his team leader “breach[ed his] confidentiality” by “heavily

criticizing [the appellant] in terms of [his] ‘Performance Appraisal’ outside of

confidence and with other employees present.” ID at 10; IAF, Tab 9 at 32.

On review, the appellant argues that he provided specific details regarding this

disclosure. PFR File, Tab 3 at 19. We agree.

5

On review, the appellant argues that he raised additional agency wrongdoing relating

to the performance appraisal system with OSC. PFR File, Tab 3 at 10-15. In addition

to referencing his correspondence with OSC in the record below, the appellant also

attaches correspondence with OSC beginning in April 2022. We have considered the

appellant’s new evidence and argument to the extent they implicate the Board’s

jurisdiction, a matter that may be raised at any time during Board proceedings.

Pirkkala v. Department of Justice, 123 M.S.P.R. 288, ¶ 5 (2016). However, we find

that the appellant’s new evidence and argument do not establish jurisdiction. To the

extent the appellant alleges that he made disclosures to OSC beginning in April 2022

regarding information he learned during the course of this appeal, that information

could not have formed the basis of his belief that the agency had committed wrongdoing

at the time he made his disclosures in September 2021. Similarly, although the

appellant’s December 27, 2021 correspondence to OSC constitutes protected activity

under 5 U.S.C. § 2302(b)(9)(C), that activity could not have been a contributing factor

in his September 2021 termination. See Orr v. Department of the Treasury,

83 M.S.P.R. 117, ¶ 15 (1999) (observing that protected disclosures made after the

agency took a personnel action could not have been a contributing factor in that

personnel action).

6

In order to be protected, the appellant must have had a reasonable belief

that he was disclosing a violation of law, rule, or regulation. See 5 U.S.C.

§ 2302(b)(8)(A); Hupka v. Department of Defense, 74 M.S.P.R. 406, 410 (1997).

The appellant need not prove that the matter disclosed actually established one of

the types of wrongdoing listed under section 2302(b)(8)(A); rather, he must show

that the matter disclosed was one which a reasonable person in his position would

believe evidenced any of the situations specified in 5 U.S.C. § 2302(b)(8).

Hupka, 74 M.S.P.R. at 410. The appellant, who is not a lawyer, may have

reasonably believed that his team leader violated the Privacy Act by discussing

his performance in a location where others could overhear. See id. (finding that

an appellant, who was not a lawyer and whose duties did not require him to be

familiar with the intricacies of the Privacy Act, reasonably believed that the

agency violated the Privacy Act when it disclosed his medical information before

he signed a medical release).

Here, the appellant’s disclosure, in its entirety, alleged “a breach of

confidentiality” by his team leader, who “was heavily criticizing [him] in terms of

[his] ‘Performance Appraisal’ outside of confidence and with other employees

present.” IAF, Tab 9 at 31-32. He did not indicate in his disclosure to his

first-level supervisor where or when the alleged conversation took place, what the

team leader stated, or who was present to overhear the discussion. Id.

On review, the appellant provides details regarding his disclosure, alleging the

team leader “directly cited the performance appraisal.” PFR File, Tab 3 at 17, 19.

He also relies on statements provided by the agency in support of its motion to

dismiss. Id. at 17-18. We consider these statements because they are integral to

the appellant’s claim, and he has referred to them in his petition for review. See

Hessami v. Merit Systems Protection Board, 979 F.3d 1362, 1369 n.5 (Fed. Cir.

2020) (stating that, although the Board may not deny jurisdiction by crediting the

agency’s interpretation of the evidence, “the Board may consider sources such as

7

‘matters incorporated by reference or integral to the claim, items subject to

judicial notice, [and] matters of public record’” (citation omitted)).

One of these statements was completed by the appellant’s team leader on

September 16, 2021, and is addressed to the appellant’s first-level supervisor.

IAF, Tab 12 at 151-52. The team leader recounted a disagreement with the

appellant during which he advised the appellant that his performance had

“regressed” since earlier in the month, that he needed to complete previously

identified items to be “fully successful at his current employment level,” and that

he was not “adequately support[ing] the . . . office.” Id. at 152. A second

statement from one of the appellant’s coworkers, who overheard some of the

conversation, also indicated that the team leader “brought up [the appellant’s]

overall work performance.” Id. at 154. It appears that the discussion did not take

place behind closed doors. Id.

The appellant made his disclosure to his first-level supervisor that

“confidentiality is breached” on September 17, 2021. IAF, Tab 9 at 31-32.

In evaluating the reasonableness of the appellant’s belief that his disclosure

evidenced wrongdoing, we look to the context in which he made his disclosures.

See Ontivero v. Department of Homeland Security , 117 M.S.P.R. 600, ¶¶ 15,

19-20 (2012) (considering the fact that an agency manager agreed with the

appellant’s concerns as supporting the conclusion that the appellant

nonfrivolously alleged that she disclosed wrongdoing). Any doubt or ambiguity

as to whether the appellant made a nonfrivolous allegation of reasonable belief

should be resolved in favor of finding jurisdiction. Id., ¶ 18.

Here, resolving any doubt in the appellant’s favor, we find that

he nonfrivolously alleged that, 1 day before he sent his email expressing concern

about a breach of confidentiality to his first-level supervisor, the same supervisor

received a statement from the appellant’s team leader reflecting that he advised

the appellant that his performance was less than satisfactory. IAF, Tab 12

at 151-52. Again resolving any doubt at this stage in the appellant’s favor, we

8

assume that the appellant’s first-level supervisor also received a statement from

his coworker around the same time reflecting that she overheard some of this

discussion. Id. at 154. With this background, we find that, although the

appellant’s disclosure was somewhat terse, his first-level supervisor had

sufficient information to flesh out the relevant facts. Therefore, we find that the

disclosure, in context, was specific and detailed.

Further, we find that a person in the appellant’s position could reasonably

believe that discussing his performance in a place where the discussion could be

overheard violated the Privacy Act. See 5 U.S.C. § 552a(a)(4)-(5), (b)

(prohibiting an agency from disclosing information about an individual that is in

a group of records retrievable by name or other personal identifier). In light of

our finding here, we find it unnecessary to address other pleadings and evidence

that the appellant cites on review as supporting his position that this disclosure

was protected. PFR File, Tab 3 at 17, 19 (citing IAF, Tab 1 at 20, Tab 8 at 62,

Tab 11 at 46-47, 52).

The appellant nonfrivolously alleged that his Privacy Act disclosure was a

contributing factor in his termination.

The appellant argues on review that the agency subjected him to a hostile

work environment and terminated him in retaliation for the above protected

disclosures. IAF, Tab 1 at 34, Tab 9 at 14, 23. In cases involving multiple

alleged disclosures or activities and multiple personnel actions, when an appellant

makes a nonfrivolous allegation that at least one personnel action was taken in

reprisal for at least one alleged protected disclosure or activity, he establishes

Board jurisdiction over his IRA appeal. Peterson v. Department of Veterans

Affairs, 116 M.S.P.R. 113, ¶ 8 (2011). As discussed above, we find that the

appellant nonfrivolously alleged that he made a protected disclosure concerning a

purported Privacy Act violation.

Because she found that the appellant failed to nonfrivolously allege that he

made a protected disclosure, the administrative judge did not reach the issue of

9

whether he nonfrivolously alleged that a disclosure was a contributing factor in a

personnel action. ID at 13. Therefore, we have considered these issues here.

As an initial matter, we find that the appellant nonfrivolously alleged that

the agency took a personnel action against him. A probationary termination is a

personnel action. 5 U.S.C. § 2302(a)(2)(A)(iii); Scalera v. Department of the

Navy, 102 M.S.P.R. 43, ¶ 15 (2006). The record contains the appellant’s

September 2021 notice of probationary termination, and the agency indicated

below that it had terminated the appellant’s employment that month. IAF,

Tab 1 at 7-10, Tab 12 at 6.

On review, the appellant argues that he proved contributing factor under

the knowledge-timing test. PFR File, Tab 3 at 31-32. To satisfy the contributing

factor criterion at the jurisdictional stage in an IRA appeal, an appellant need

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

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

Abernathy v. Department of the Army, 2022 MSPB 37, ¶ 15. One way to establish

this criterion is the knowledge-timing test, under which an employee may

nonfrivolously allege that the disclosure 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 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. The Board has

held that personnel actions occurring within 1 to 2 years after the protected

disclosures are sufficient to meet the timing portion of the test. Id. The

knowledge portion of the knowledge-timing test can be met with allegations of

either actual or constructive knowledge. Id. An appellant may establish an

official’s constructive knowledge of a protected disclosure by demonstrating that

an individual with actual knowledge of the disclosure influenced the official

accused of taking the retaliatory action. Id.

10

As discussed above, on September 17, 2021, the appellant sent an email to

his first-level supervisor alleging that his team leader breached his

confidentiality. IAF, Tab 9 at 31-32. The agency’s State Conservationist

terminated the appellant 12 days later. IAF, Tab 1 at 6-10. The termination letter

references the confrontation during which the appellant alleges that his team

leader breached confidentiality as a basis for the appellant’s termination. IAF,

Tab 1 at 8. Further, around the same time as the appellant’s disclosure to his

first-level supervisor, it appears that his team leader submitted a statement to her

about the confrontation, discussed above, indicating that he had raised with the

appellant the issue of his performance. IAF, Tab 12 at 151-52. Therefore,

although the termination letter does not specifically reflect the involvement of the

appellant’s first-level supervisor in the termination decision, this information is

sufficient to constitute a nonfrivolous allegation that the appellant’s supervisor,

who was aware of his disclosures, influenced the State Conservationist, who

signed his termination letter. Therefore, we remand this appeal for a

determination of whether the appellant proved this claim on the merits.

At this time, we do not reach the issue of whether the appellant

nonfrivolously alleged that he was, leading up to his termination, subjected to a

hostile work environment. Under 5 U.S.C. § 2302(a)(2)(A)(xii), a “significant

change in duties, responsibilities or working conditions” is a personnel action.

To amount to a “significant change” under section 2302(a)(2)(A)(xii), an agency

action must have a significant impact on the overall nature or quality of an

employee’s working conditions, responsibilities, or duties. Skarada v.

Department of Veterans Affairs, 2022 MSPB 17, ¶ 15. We leave the

determination of whether the appellant nonfrivolously alleged he suffered such a

significant change, and whether his Privacy Act disclosure contributed to it, for

the administrative judge on remand. See Thurman v. U.S. Postal Service,

2022 MSPB 21, ¶ 22 (recognizing that the Board’s administrative judges are in

11

the best position to, among other things, develop the record and simplify the

issues).

On remand, the administrative judge must first determine whether the

appellant nonfrivolously alleged that his Privacy Act disclosure was a

contributing factor in a hostile work environment. See Scmittling v. Department

of the Army, 219 F.3d 1332, 1336-37 (Fed. Cir. 2000) (holding that the Board

may not make findings on the merits of an IRA appeal unless it first determines

that it has jurisdiction over the matter). Following that determination, she should

hold the appellant’s requested hearing on the merits of his claims arising out of

his alleged Privacy Act disclosure. IAF, Tab 1 at 2; see Graves v. Department of

Veterans Affairs, 123 M.S.P.R. 434, ¶ 22 (2016) (explaining that once an

appellant establishes jurisdiction over his IRA appeal he is entitled to a hearing

on the merits).

ORDER

For the reasons discussed above, we remand this case to the Western

Regional Office for further adjudication in accordance with this Remand Order.

In the remand initial decision, the administrative judge may reincorporate

prior findings as appropriate, consistent with this Remand Order.

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.