Opinion

Peggy Chu v. Department of Commerce

Court: Merit Systems Protection Board
Filed: Apr 26, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.9%

recognizing that a disclosure is not exempt from protection simply because it may have been presented in a critical manner

How later courts described this case

recognizing that a disclosure is not exempt from protection simply because it may have been presented in a critical manner
finding that the agency failed to show by clear and convincing evidence that it would have disciplined the appellant absent his protected disclosures when those same disclosures served as the basis for the discipline
considering under the second Carr factor whether there was a professional motive to retaliate
affirming the criminal conviction, under 41 C.F.R. § 102-74.390, of a Federal security guard for creating a disturbance by engaging in a physical altercation with a coworker in the employee locker room

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

PEGGY CHU, DOCKET NUMBER

Appellant, DC-1221-17-0172-W-1

DEPARTMENT OF COMMERCE, DATE: April 26, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Peggy Chu , Alexandria, Virginia, pro se.

Benjamin K. Ahlstrom and Jennifer Williams , Alexandria, Virginia,

for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

denied her request for corrective action in this individual right of action (IRA)

appeal. Generally, we grant petitions such as this one only in the following

circumstances: the initial decision contains erroneous findings of material fact;

the initial decision is based on an erroneous interpretation of statute or regulation

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

or the erroneous application of the law to the facts of the case; the administrative

judge’s rulings during either the course of the appeal or the initial decision were

not consistent with required procedures or involved an abuse of discretion, and

the resulting error affected the outcome of the case; or new and material evidence

or legal argument is available that, despite the petitioner’s due diligence, was not

available when the record closed. Title 5 of the Code of Federal Regulations,

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this

appeal, we conclude that the petitioner has not established any basis under

section 1201.115 for granting the petition for review. Therefore, we DENY the

petition for review. We MODIFY the initial decision to clarify the findings on

exhaustion, the scope of the appellant’s protected disclosures, and the

contributing factor analysis and findings and to adjust the Carr factor analysis.

We VACATE the finding that the agency met its burden of proving by clear and

convincing evidence it would have relocated the appellant to a cubicle absent her

protected disclosures. We otherwise AFFIRM the initial decision.

BACKGROUND

The appellant is employed by the agency as an Information Technology

(IT) Specialist, GS-2210-13. Initial Appeal File (IAF), Tab 64 at 5-6, Tab 24

at 4. She filed a complaint with the Office of Special Counsel (OSC), alleging

that the agency moved her from a shared office to a cubicle, lowered her fiscal

year (FY) 2015 performance appraisal, forced her to work overtime without pay,

withheld a performance bonus and award, and suspended her for 1 day in reprisal

for disclosing her officemate’s harassing conduct that violated Government

policies against disturbances and contractors’ nonperformance that violated the

Federal Acquisitions Regulations (FAR) and resulted in a gross waste of

Government resources. IAF, Tab 45 at 7-17, Tab 70 at 116-22.

The appellant filed a Board appeal after OSC failed to resolve her

complaint within 120 days, reasserting many of the claims that she raised before

OSC. IAF, Tab 1 at 840-58. During the adjudication of her case below, she

alleged that her disclosure to the agency’s Chief Investigator of the Workforce

Relations Division (WRD) (formerly known as the Employee Relations Division)

in February 2016—that she had worked over 2,000 hours of overtime without pay

and with the knowledge of her supervisor—constituted a protected disclosure of a

Fair Labor Standards Act (FLSA) violation. IAF, Tab 51 at 13, Tab 68 at 22,

Tab 70 at 15-16. The appellant initially requested a hearing; however, through

counsel, she withdrew her request. IAF, Tab 3 at 4, Tab 59 at 4.

After the close of the record, the administrative judge issued an initial

decision based on the written record, finding that the appellant had established

Board jurisdiction over her appeal, but denying her request for corrective action.

IAF, Tab 63 at 1, Tab 73, Initial Decision (ID) at 1, 22. He found that the

appellant made the following protected disclosures: (1) Government contractors

violated the FAR; (2) the contractors’ nonperformance constituted a gross waste

of funds; and (3) she was denied overtime pay in violation of the FLSA. ID

at 8-10. However, he found that the appellant’s disclosures about her officemate

were not protected. ID at 7. He further found that the appellant proved that her

two protected disclosures about contractors’ nonperformance were a contributing

factor in her lowered performance rating and 1-day suspension, but not in the

agency’s decision to reassign her to a cubicle. ID at 11-12. He nevertheless

denied the appellant’s request for corrective action because the agency proved by

clear and convincing evidence that it would have reassigned her to a cubicle,

lowered her performance appraisal, and suspended her absent her

contractor-related disclosures. ID at 12-22.

The appellant has filed a petition for review, arguing that the administrative

judge erred in denying her request for corrective action. Petition for Review

(PFR) File, Tab 7. She claims that all of her disclosures were protected and that

the agency failed to prove by clear and convincing evidence that it would have

lowered her performance rating, relocated her to a cubicle, or suspended her

absent her protected disclosures. Id. at 7-21. The agency has filed a response to

the petition for review. PFR File, Tab 11.

DISCUSSION OF ARGUMENTS ON REVIEW 2

The appellant exhausted with OSC her disclosure that she was forced to work

uncompensated overtime hours in violation of the FLSA.

Although the administrative judge found that the appellant made a

protected disclosure that the agency violated the FLSA, he did not make any

findings addressing whether she exhausted this claim with OSC. ID at 9-10. We

turn now to consider in the first instance whether the appellant exhausted it with

OSC.

The Board has jurisdiction over an IRA appeal if the appellant proves by

preponderant evidence that she exhausted her administrative remedy before OSC

and makes nonfrivolous allegations that: (1) she made a protected 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 protected

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).

Edwards v. Department of Labor, 2022 MSPB 9, ¶ 8, aff’d, No. 2022-1967,

2023 WL 4398002 (Fed. Cir. July 7, 2023); Salerno v. Department of the Interior,

123 M.S.P.R. 230, ¶ 5 (2016). The substantive requirements of exhaustion are

met when an appellant has provided OSC with sufficient basis to pursue an

investigation that might lead to corrective action. Chambers v. Department of

Homeland Security, 2022 MSPB 8, ¶ 10. The Board’s jurisdiction is limited to

those issues that have been previously raised with OSC. Skarada v. Department

of Veterans Affairs, 2022 MSPB 17, ¶ 7.

However, an appellant may give a more detailed account of her

whistleblowing activities before the Board than she did to OSC. Id.; Chambers,

The parties do not challenge the administrative judge’s finding that the Board has

jurisdiction over the appeal, and we decline to disturb that finding. ID at 5.

2022 MSPB 8, ¶ 10. An appellant may demonstrate exhaustion through her initial

OSC complaint, evidence that she amended the original complaint, including but

not limited to OSC’s determination letter and other letters from OSC referencing

any amended allegations, and the appellant’s written responses to OSC

referencing the amended allegations. Skarada, 2022 MSPB 17, ¶ 7. An appellant

may also establish exhaustion through 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. Chambers, 2022 MSPB 8, ¶ 11.

Finally, the appellant must prove exhaustion with OSC by preponderant evidence,

not just present nonfrivolous allegations of exhaustion. Id.; see 5 U.S.C.

§ 1214(a)(3); 5 C.F.R. § 1201.57(c)(1).

The appellant alleged in her OSC complaint that she worked a significant

number of overtime hours without pay. IAF, Tab 45 at 14-15. In additional

submissions to OSC, she asserted that her supervisor was aware that she was

working overtime. IAF, Tab 2 at 22, 296, 356-68, 375. In her submission to the

Board, the appellant clarified that she disclosed that she was denied overtime pay

to the Chief Investigator of the WRD during a meeting on February 25, 2016,

concerning the agency’s investigation into her apparent time and attendance

discrepancies. IAF, Tab 1 at 823-28, Tab 6 at 13. The appellant also provided a

written summary the Chief Investigator of the WRD produced detailing his

February 25, 2016 meeting with the appellant. These notes corroborate her claim

that she made disclosures that her supervisor permitted her to work excessive

hours. IAF, Tab 1 at 823-28. Id. at 824, 826-28. The record reflects that the

appellant provided these documents to OSC during its investigation of her

whistleblower retaliation complaint. IAF, Tab 23 at 16-17 (November 20, 2016

email providing OSC with additional documents related to her whistleblower

complaint and requesting OSC to reconsider its stay decision); Tab 45 at 18-19

(September 15, 2016 email from OSC seeking additional information regarding

the appellant’s unpaid overtime claim), 20-21 (October 5, 2016 email denying the

appellant’s stay request); see Chu v. Department of Commerce, MSPB Docket

No. DC-1221-17-0018-S-1, Stay File, Tabs 1-2 (providing the OSC investigator

with the February 25, 2016 meeting summary). 3 Accordingly, we find that the

appellant exhausted with OSC her claim that she disclosed to the Chief

Investigator of the WRD that she was forced to work significant amounts of

overtime without pay and with the knowledge of her supervisor.

The administrative judge found that a disinterested observer in the

appellant’s position could reasonably believe that her statements to the Chief

Investigator alleging that she was required to work uncompensated overtime

evidenced a violation of the FLSA. ID at 9-10. The parties do not question this

finding on review. 4

The administrative judge properly found that the appellant’s disclosures about her

officemate were unprotected, but erred in finding that all of her disclosures about

contractors’ nonperformance were protected.

Disclosures concerning the appellant’s officemate’s disruptive behavior

An employee discloses a gross waste of funds when she alleges that a more

than debatable expenditure is significantly out of proportion to the benefit

reasonably expected to accrue to the Government. Fisher v. Environmental

Protection Agency, 108 M.S.P.R. 296, ¶ 9 (2008). On review, the appellant

challenges the administrative judge’s finding that her officemate’s behavior was

The appellant filed a stay request with the Board in October 2016, but an

administrative judge dismissed the request as premature. Chu v. Department of

Commerce, MSPB Docket No. DC-1221-17-0018-S-1, Order Dismissing Stay Request

at 1-2 (Oct. 14, 2016).

We find it unnecessary to revisit this finding here. The parties do not dispute this

determination. See 5 C.F.R. § 1201.115 (reflecting that the Board generally will

consider only the issues raised on review). As discussed below, we agree with the

administrative judge that the agency met its burden to prove that it would have taken

the actions at issue here absent the appellant’s disclosure. Therefore, any error is

harmless. Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984)

(explaining that an adjudicatory error that is not prejudicial to a party’s substantive

rights provides no basis for reversal of an initial decision). However, we observe that

according to a Standard Form 50 the appellant submitted below, she was designated as

FLSA “exempt”. IAF, Tab 25 at 4.

too trivial to constitute a protected disclosure. PFR File, Tab 7 at 7-10. She

asserts that she reasonably believed that she disclosed that her officemate violated

41 C.F.R. § 102-74.390, a Federal regulation prohibiting disturbances on public

property, and that any violation is the basis for a protected disclosure, even if de

minimis. 5 Id. at 9-10. Under 41 C.F.R. § 102-74.390, all persons are prohibited

from “creat[ing] loud or unusual noise or a nuisance” or otherwise disrupting

employees in the performance of their duties. A violation of that regulation

carries a criminal penalty. 41 C.F.R. § 102-74.450. A disclosure of a violation of

a criminal law is a disclosure of a law, rule, or regulation. Scalera v. Department

of the Navy, 102 M.S.P.R. 43, ¶ 18 (2006).

We agree with the administrative judge that the appellant disclosed a trivial

office dispute between she and her coworker. ID at 6-7 (citing Langer v.

Department of the Treasury, 265 F.3d 1259, 1266 (Fed. Cir. 2001) (concluding

that disclosures of “trivial violations do not constitute protected disclosures.”))

Specifically, the appellant alleged that her officemate was loud and disruptive

when she used the speakerphone, held meetings, and gossiped and spoke in a

foreign language with another coworker in their shared office. PFR File, Tab 7

at 7; IAF, Tab 70 at 6, 16. The appellant also described her coworker’s behavior

as “treat[ing] the office space as though it was her own,” “us[ing] the office as a

conference room,” “belligerent,” and “inconsiderate.” IAF, Tab 70 at 6, 17, 60,

62, 82-84, 238-42. It appears that the appellant and her officemate generally

disagreed about the use of the office space and the arrangement of office

furniture. Id. at 17, 60, 62-63, 238-42. In fact, the appellant’s officemate

requested to be moved at one point due to the appellant’s “offensive and

disrespectful” conduct. Id. at 251-53.

The parties do not dispute that 41 C.F.R. § 102-74.390 applied to the appellant’s

office. IAF, Tab 24 at 4, Tab 31 at 33-34; PFR File, Tab 7 at 8-9 (citing 41 C.F.R.

§§ 102-2.10, 102-2.20). We make no finding on this issue, but we agree with the

administrative judge’s implicit finding that a reasonable person in the appellant’s

position would have believed the regulation applies. ID at 7.

We find that any reasonable person in the appellant’s position could not

believe her coworker’s actions were the type of criminal conduct contemplated by

the identified regulation. Cf. Drake v. Agency for International Development,

543 F.3d 1377, 1380-82 (2008) (finding that, based on the facts and

circumstances of the case, it was reasonable for the appellant to believe that he

had disclosed that his colleagues violated agency policy by being intoxicated

while on duty); see generally United States v. Broxton, 666 F. App’x 149, 150,

153 (3d Cir. 2016) (affirming the criminal conviction, under 41 C.F.R.

§ 102-74.390, of a Federal security guard for creating a disturbance by engaging

in a physical altercation with a coworker in the employee locker room). 6

Therefore, the appellant has shown no error in the administrative judge’s finding

that her disclosure was not protected.

Disclosures concerning contractor wrongdoing

As for the appellant’s disclosures of contractors’ nonperformance, they

generally fall into two categories—disclosures of substantial nonperformance by

a Government contractor, Phacil, and several disclosures about other contractors’

more discrete performance issues. From August through October 2015, the

appellant disclosed that Phacil should not be awarded an IT contract for FY 2016

because of its documented nonperformance. IAF, Tab 2 at 35-39, 49-160, Tab 70

at 125-28. At least as early as October 12, 2015, the appellant further disclosed

that the agency was wasting money paying Phacil because it performed

substantially below expectations and had serious product delivery delinquencies

that significantly affected the agency’s ability to fulfill its mission, especially

regarding an applications system, which accounted for nearly 10% of the

agency’s annual operating budget. IAF, Tab 2 at 19-20, 164, Tab 8 at 4-11.

While decisions of the U.S. Court of Appeals for the Federal Circuit are controlling

authority for the Board, other circuit courts’ decisions are considered persuasive, but

not controlling, authority. Morris v. Department of the Navy, 123 M.S.P.R. 662,

¶ 15 n.12 (2016).

The appellant also disclosed that another contractor failed to maintain

appropriate staffing levels as required by the contract and other contract

employees failed to meet individual performance expectations. IAF, Tab 2

at 41-49. She contended that the contractors’ failure to perform constituted a

violation of FAR § 9.104-1 and § 52.249-13 and that the agency’s failure to take

remedial action for their nonperformance constituted a gross waste of funds. 7

IAF, Tab 23 at 4-7. The administrative judge did not distinguish the appellant’s

disclosures, finding instead that she “produced sufficient evidence to show that

she reasonably believed that the contractors violated the FAR, and that the

contractors’ nonperformance resulted in a misuse of [G]overnment funds.” ID

at 9. This distinction is significant, as only the disclosures about Phacil are

protected. 8

Federal agencies generally may only award a competitive contract bid to a

responsible contractor. 41 U.S.C. § 3703(c). Under FAR §§ 9.104-1(c) and

9.104-3(b), a prospective contractor is presumed to be “nonresponsible” if it “is

or recently has been seriously deficient in contract performance.” When the

appellant made her disclosure, the agency had awarded Phacil the FY 2016

contract. IAF, Tab 8 at 7-8. Based on the appellant’s expertise, observations,

and confirmation from other management officials, it was reasonable for her to

believe that Phacil’s nonperformance was substantial enough such that the

agency’s decision to award Phacil the FY 2016 contract violated the FAR. IAF,

Tab 8 at 4-11; see Embree v. Department of the Treasury, 70 M.S.P.R. 79, 85

(1996) (considering the appellant’s asserted subject matter expertise in finding

The FAR regulations are located in Title 48 of the Code of Federal Regulations.

The administrative judge also erred in finding that the appellant reasonably believed

that she disclosed a violation of FAR § 52.249-13. ID at 8-9. That provision, which

concerns facilities contracts, was eliminated over 8 years before the appellant’s

disclosures. Id.; Federal Acquisition Regulations, 72 Fed. Reg. 27364-02, 27381,

27394 (May 15, 2007). The administrative judge’s error was not harmful, as we have

nevertheless found that the appellant reasonably disclosed a violation of the FAR on

another basis. Panter, 22 M.S.P.R. at 282.

that she made a nonfrivolous allegation of gross mismanagement); Van Ee v.

Environmental Protection Agency, 64 M.S.P.R. 693, 698 (1994) (considering the

appellant’s expertise in finding that she made a nonfrivolous allegation of a gross

waste of funds).

Further, it was also reasonable to believe that the agency was committing a

gross waste of funds by paying millions of dollars for services it was not

receiving due to Phacil’s nonperformance and that its nonperformance affected a

project that accounted for nearly 10% of the agency’s operating budget. 9 IAF,

Tab 3 at 7, Tab 8 at 4-11; see, e.g., Smith v. Department of the Army, 80 M.S.P.R.

311, ¶¶ 6, 10 (1998) (finding that the appellant made a nonfrivolous allegation

that he had disclosed a gross waste of funds by disclosing that the agency spent

$15,000 on a fuel management system that would provide no benefit to the

Government); cf. Jensen v. Department of Agriculture, 104 M.S.P.R. 379, ¶ 10

(2007) (finding no protected disclosure of a gross waste of funds when the

appellant failed to indicate the scale of the expenditure she claimed was

improper). In contrast, the appellant could not reasonably believe that she was

disclosing a violation of law, rule, or regulation, or a gross waste of funds by

disclosing her concerns about other contractors’ staffing issues and minor,

discrete performance issues. See Lane v. Department of Homeland Security ,

115 M.S.P.R. 342, ¶¶ 17-18 (2010) (finding that the appellant did not prove he

reasonably believed he disclosed Government wrongdoing by disclosing that

The appellant’s disclosures—that agency officials ignored contract violations by

failing to remediate Phacil’s nonperformance—reveal wrongdoing on the part of the

agency, as opposed to only identifying wrongdoing by a private Government contractor

because Phacil’s nonperformance implicated the Government’s interest. See Johnson v.

Department of Health and Human Services, 93 M.S.P.R. 38, ¶¶ 10-11 (2002) (finding

that the appellant’s disclosures of wrongdoing by a private Government contractor were

protected because the identified wrongdoing implicated the Government’s interest and

reputation); see also Covington v. Department of the Interior, 2023 MSPB 5, ¶¶ 15-19

(finding that the Whistleblower Protection Enhancement Act of 2012 did not change the

longstanding principle that a disclosure of wrongdoing committed by a non -Federal

Government entity may be protected only when the Federal Government’s interests and

good name are implicated in the alleged wrongdoing).

contractors failed to fulfill their contractual obligations to maintain staffing

levels).

The appellant proved that her disclosure concerning contractor nonperformance

was a contributing factor in the agency’s decisions to lower her FY 2015

performance rating and to issue a 1-day suspension.

The administrative judge found that the appellant proved that her

disclosures of contractors’ nonperformance, beginning in August 2015, were a

contributing factor in the agency’s October 2015 decision to lower her FY 2015

performance rating and October 2016 decision to suspend her for 1 day. ID

at 10-12. Based on our modifications to the administrative judge’s findings as to

the appellant’s disclosures, we further modify the initial decision to find that she

proved that her protected disclosures about the agency’s failure to act on Phacil’s

nonperformance were a contributing factor in those two personnel actions. We

also vacate the administrative judge’s finding that she proved contributing factor

as to her disclosures concerning other contractors.

To prevail in an IRA appeal, an appellant also must prove by preponderant

evidence that her disclosure was a contributing factor in a personnel action.

5 U.S.C. § 1221(e)(1); Smith v. Department of the Army, 2022 MSPB 4, ¶ 19. To

prove that a disclosure was a contributing factor in a personnel action, the

appellant need only demonstrate that the fact of, or the content of, the disclosure

was one of the factors that tended to affect the personnel action in any way.

Covington v. Department of the Interior, 2023 MSPB 5, ¶ 43. One way to

establish contributing factor is the knowledge/timing test. Smith, 2022 MSPB 4,

¶ 19. The appellant can satisfy the test by proving that the official taking the

action had actual or constructive knowledge of the disclosure, and the 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

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

either actual or constructive knowledge. Abernathy v. Department of the Army,

2022 MSPB 37, ¶ 15. However, the knowledge/timing test is not the only way to

prove contributing factor. 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

officials taking the action, and whether these individuals had a desire or motive to

retaliate against the appellant. Id., ¶ 15.

The appellant’s former supervisor rated the appellant’s performance for

FY 2015 as fully successful on October 9, 2015, and suspended her on October 3,

2016. IAF, Tab 5 at 4, Tab 31 at 33, 35-36. As previously noted, the appellant

disclosed that Phacil should not be awarded an IT contract for FY 2016 and that

the agency was wasting money on Phacil from August through October 2015.

IAF, Tab 2 at 19-20, 35-39, 49-160, 164, Tab 8 at 4-11, Tab 70 at 125-28. Thus,

the appellant has proven, under the knowledge/timing test, that her protected

disclosures concerning the agency’s FAR violation and gross waste of funds as to

Phacil were contributing factors in the agency’s decision to take both personnel

actions. See Abernathy, 2022 MSPB 37, ¶ 15.

Regarding contributing factor as it relates to the appellant’s move to a

cubicle from her shared office, although the appellant raises other arguments on

review as to her office move, she does not contend that the responsible officials—

the Director of Program Management, the Director of the Workforce Management

Division (WMD), and a Labor Relations employee—had knowledge of her

protected disclosures regarding Phacil. PFR File, Tab 7 at 10-12; IAF, Tab 70

at 20, 22, 49. She also does not contend that they were influenced by anyone

with knowledge of her protected disclosures. PFR File, Tab 7 at 10-12; IAF,

Tab 70 at 20, 22-24, 47-53; see Dorney, 117 M.S.P.R. 480, ¶ 11 (explaining that

an appellant may establish constructive knowledge by showing that an individual

with actual knowledge of the disclosure influenced the official accused of taking

the retaliatory action).

As to non-knowledge/timing evidence, the agency provided strong evidence

supporting its decision to move the appellant to a cubicle. See Dorney,

117 M.S.P.R. 480, ¶ 15. Specifically, the WMD Director provided a declaration

detailing the agency’s efforts in resolving the dispute between the appellant and

her officemate and explaining its decision to move her into a cubicle instead of

into a single-occupancy office or another double-occupancy office with a

different officemate. IAF, Tab 68 at 17-20. The WMD Director explained that

WMD recommended to the Union President that the appellant be moved into a

cubicle from her double office because the appellant’s division was facing

significant space limitations at the time and so no GS-13 employees were being

provided with single offices, and further, because the appellant’s statements and

behaviors led the agency to believe that moving her into another double office

with a different officemate would be futile. Id. Additionally, the WMD Director

noted that although WMD made the recommendation that the appellant be moved

into a cubicle, the final decision on the office assignment was made by the union.

Id. at 18, 20.

Although the appellant reasserts that the decision to move her to a cubicle

was retaliatory, she has not specifically disputed the agency’s explanation for its

decision on review. PFR File, Tab 7 at 15-16. Additionally, there is no evidence

in the record that any of the appellant’s whistleblowing disclosures were directed

at any of the officials that were involved in the decision to move the appellant to

a cubicle—the Director of Program Management, the WMD Director, and the

Labor Relations Specialist—or that any of these officials had any motive to

retaliate against the appellant. IAF, Tab 2 at 377-79, Tab 23 at 56-57, Tab 68

at 17-21, Tab 70 at 47-49, 75-76; see Dorney, 117 M.S.P.R. 480, ¶ 15.

Accordingly, we agree with the administrative judge that the appellant has not

proven that the agency moved her from a shared office to a cubicle in reprisal for

her protected disclosures. ID at 11-12.

The appellant proved that her disclosure of potential FLSA violations was a

contributing factor in the agency’s decision to issue the 1-day suspension.

The administrative judge did not make specific findings addressing whether

the appellant’s February 25, 2016 FLSA disclosure was a contributing factor in

the agency’s October 2015 decision to lower her FY 2015 performance rating, the

October 2016 decision to suspend her for 1 day, or the July 19, 2016 decision to

move her from a double-occupancy office to a cubicle, and so we do so in the

first instance.

The timing prong of the knowledge/timing test is met for the 1-day

suspension and the move to a cubicle because the agency took those actions less

than 1 year after the appellant made the disclosure to Chief Investigator of the

WRD on February 25, 2016. IAF, Tab 1 at 823-28, Tab 2 at 377, Tab 31 at 33,

35-36, Tab 68 at 20; see Abernathy, 2022 MSPB 37, ¶ 15 (recognizing that

personnel actions occurring within 1 to 2 years after the protected disclosures are

sufficient to meet the timing portion of the test). However, because the appellant

first disclosed the potential FLSA violations on February 25, 2016, after the

October 2015 decision to lower her FY 2015 performance rating, the disclosure

could not have contributed to the agency’s decision to take that action. IAF,

Tab 5 at 4; see Johnson v. Department of Justice, 104 M.S.P.R. 624, ¶ 26 (2007)

(determining that a disclosure made after the personnel actions at issue could not

have been a contributing factor in those personnel actions).

Regarding the knowledge prong of the test, as set forth in greater detail

above, the only agency official the appellant alleged was aware of her disclosure

was the Chief Investigator of the WRD. 10 IAF, Tab 1 at 823-28, Tab 70 at 63-64.

The appellant also alleged that the Chief Investigator was involved in the

suspension decision by assisting her former first-line supervisor with the

Although the appellant noted that her former first-line supervisor was aware that she

often worked overtime hours, she did not allege that she made a protected disclosure of

wrongdoing to her supervisor in connection with her overtime work, nor did she exhaust

any such claim with OSC. IAF, Tab 70 at 30-31.

suspension proposal and decision and by coordinating the oral reply. IAF, Tab 23

at 17, 51, Tab 70 at 35, 65. Accordingly, we conclude, based on the

knowledge/timing test, that the appellant proved that her disclosure of potential

FLSA violations was a contributing factor in the decision to issue the 1-day

suspension.

With respect to the decision to move her from an office to a cubicle, the

appellant has not alleged that the Chief Investigator of the WRD played any role

in that decision, nor has she alleged that any of the other agency officials

responsible for that decision had knowledge of her FLSA disclosure. The

appellant also has not alleged that any person involved in the cubicle move

decision was influenced by the Chief Investigator—the only official with

knowledge of the FLSA disclosure. See Dorney, 117 M.S.P.R. 480, ¶ 11.

Further, as previously set forth in greater detail, the agency’s reasons for moving

the appellant to a cubicle were valid and there is no evidence that the appellant’s

FLSA disclosure was directed at any of the officials involved in the office move

decision, and so the appellant failed to prove contributing factor based on

non-knowledge/timing evidence.

In summary, we conclude that the appellant established that her

February 25, 2016 disclosure of potential FLSA violations was a contributing

factor in the agency’s decision to issue the 1-day suspension, but it did not

contribute to the decisions to lower the appellant’s FY 2015 performance rating

or to move her from a shared office to a cubicle.

The agency proved by clear and convincing evidence that it would have lowered

the appellant’s performance rating and suspended her absent her protected

disclosures.

In determining whether an agency has met this burden, the Board will

consider all of the relevant factors, including the following (“ Carr factors”):

(1) the strength of the agency’s evidence in support of the action; (2) the

existence and strength of any motive to retaliate on the part of the agency

officials who were involved in the decision; and (3) any evidence that the agency

takes similar actions against employees who are not whistleblowers but who are

otherwise similarly situated. Soto v. Department of Veterans Affairs, 2022 MSPB

6, ¶ 11; see also Carr v. Social Security Administration , 185 F.3d 1318, 1323

(Fed. Cir. 1999). The Board does not view these factors as discrete elements,

each of which the agency must prove by clear and convincing evidence. Rather,

the Board will weigh the factors together to determine whether the evidence is

clear and convincing as a whole. Lu v. Department of Homeland Security,

122 M.S.P.R. 335, ¶ 7 (2015). The Board considers all of the evidence presented,

including evidence that detracts from the conclusion that the agency met its

burden. Soto, 2022 MSPB 6, ¶ 11; see also Whitmore v. Department of Labor,

680 F.3d 1353, 1368 (Fed. Cir. 2012).

We vacate the administrative judge’s finding that the agency met its burden

of proving that it would have relocated the appellant to a cubicle absent

her protected disclosures.

On review, the appellant alleges that the administrative judge erred in

finding that the agency proved by clear and convincing evidence that it would

have moved her to a cubicle absent her protected disclosures. PFR File, Tab 7

at 15-16. Given that we agree with the administrative judge that the appellant did

not prove that her disclosures were a contributing factor in the agency’s decision

to move her to a cubicle, it is unnecessary to determine whether the agency

proved by clear and convincing evidence that it would have taken the action at

issue in the absence of her protected activity. ID at 11-12; see Fisher v.

Department of the Interior, 2023 MSPB 11, ¶ 10. Accordingly, we decline to

consider the appellant’s other challenges to the administrative judge’s findings on

this point.

The agency proved by clear and convincing evidence that it would have

lowered the appellant’s performance rating and suspended her in the

absence of her protected disclosures.

Regarding the first Carr factor and the appellant’s lowered performance

rating, the administrative judge found that the agency offered evidence supporting

its decision. ID at 16-17. In reaching that finding, he relied upon the explanation

of the appellant’s former supervisor and rating official as to why he rated the

appellant commendable in FY 2014, and lowered her rating in FY 2015 to fully

successful. Id. In FY 2014, the rating official rated the appellant commendable

in all performance elements, earning her a summary rating of commendable. 11

IAF, Tab 4 at 23. In FY 2015, he rated her commendable in three performance

elements and fully successful in two performance elements, from which she

earned enough points for a summary rating of fully successful. IAF, Tab 5 at 26.

On review, the appellant argues that her work product was outstanding, as

shown by the seven statements from “high level directors” attesting to her

performance in FY 2015, and so the agency failed to clearly and convincingly

show that her performance was deserving of a performance rating less than

commendable. PFR File, Tab 7 at 13-14. We agree that these statements show

she performed at a high level, and her former supervisor expressly recognized her

positive contributions by rating her commendable in three categories. IAF,

Tab 43 at 62-66, Tab 70 at 191-202. Nevertheless, his decision to lower her

rating to fully successful in the areas of “Individual Leadership” and “Customer

Support” was supported by the record. He received several complaints from a

manager about the appellant’s conduct during meetings and other interactions

indicating that she was increasingly challenging to work with, overstepped her

boundaries, dominated meetings, and had difficulties working on a team. IAF,

Tab 67 at 8-12. The appellant has provided no reason for discrediting the

The agency rated the appellant on a five-tier scale with potential ratings, from lowest

to highest, of unacceptable/unsatisfactory, marginal/minimally satisfactory, fully

successful, commendable, and outstanding. IAF, Tab 4 at 18, 21.

veracity of the complaints and has set forth no persuasive argument for excluding

them from consideration in her performance appraisal.

Regarding the appellant’s 1-day suspension, the agency suspended the

appellant based on one charge of improper conduct, supported by four

specifications—one specification based on her failure to work at her assigned

workstation and three specifications of sending inappropriate and highly critical

emails concerning contractors’ nonperformance. IAF, Tab 32 at 32-37. The

administrative judge failed to consider that specification 2 was grounded in the

appellant’s protected disclosure. ID at 19-21. The specification was based on an

email the appellant sent to agency officials that criticized Phacil for its

nonperformance. IAF, Tab 32 at 32, Tab 42 at 7-18. The highly critical nature of

the appellant’s email is not unexpected and is insufficient to render her disclosure

unprotected. See Greenspan v. Department of Veterans Affairs, 464 F.3d 1297,

1305-06 (Fed. Cir. 2006) (recognizing that a disclosure is not exempt from

protection simply because it may have been presented in a critical manner).

Thus, specification 2 cannot serve as evidence in support of the agency’s burden

of establishing that it would have disciplined the appellant for reasons unrelated

to her protected disclosure. Id. at 1305 (finding that the agency failed to show by

clear and convincing evidence that it would have disciplined the appellant absent

his protected disclosures when those same disclosures served as the basis for the

discipline); see also Chambers v. Department of the Interior, 602 F.3d 1370,

1380 (Fed. Cir. 2010) (stating that discipline may not be based on a protected

disclosure). The critical question is whether the agency proved by clear and

convincing evidence that it would have suspended the appellant for 1 day based

on her misconduct as set forth in specifications 1, 3, and 4 alone. See Parikh v.

Department of Veterans Affairs, 116 M.S.P.R. 197, ¶¶ 8, 40 (2011) (assessing

whether the agency would have removed an appellant for unauthorized release

and disclosure of private and protected information based only his disclosures of

information that were not protected whistleblowing). We find that the agency

met its burden. 12

As to specification 1, the agency stated that the appellant had worked over

700 hours from an unauthorized location within the agency’s headquarters. IAF,

Tab 32 at 32. The appellant admitted that she was not working at her assigned

workstation during those hours but rather in the lobby and cafeteria of the

agency’s headquarters. PFR File, Tab 7 at 17; ID at 21. Although the appellant

argues that she was permitted to work in those other locations, PFR File, Tab 7

at 17-18, the administrative judge correctly found that the evidence supported the

agency’s contention that agency policy prohibited her from using those

unapproved alternate worksites as her primary workstation. ID at 21; IAF,

Tab 66 at 81-88 (deposition testimony of the appellant), Tab 67 at 13-14, 17-22,

Tab 68 at 5-6, 12-13. The administrative judge also found that the agency

provided evidence in support of specifications 3 and 4. ID at 21.

On review, the appellant argues that her emails were not improper, but

rather were protected disclosures of wrongdoing that she was permitted to raise

directly with the contractors. PFR File, Tab 7 at 18-20. However, as explained

above, these disclosures were not protected. The appellant’s former supervisor,

who was the deciding official, emphasized that it was not within the appellant’s

job duties to supervise contractors and that, based on her improper

communications, she risked binding the agency to unauthorized contractual

obligations or exposing it to added liabilities. IAF, Tab 68 at 7. The appellant

The appellant submits emails dated August to September 2016 regarding her oral

reply and an undated instant message conversation with her former supervisor about

properly recording her telework in the time and attendance system. PFR File, Tab 7

at 22-30. These documents, which are dated prior to the issuance of the initial decision,

do not appear to be in the record below, and the appellant has not explained why she

failed to submit them below. Under 5 C.F.R. § 1201.115, the Board will not consider

evidence submitted for the first time with the petition for review absent a showing that

it was unavailable before the record was closed despite the party’s due diligence.

Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). Thus, we decline to

consider these documents.

also disputes that she admitted her emails were improper. PFR File, Tab 7

at 18-19. Regardless of the lack of admission, it is apparent, given the tone and

content of the identified emails, that her conduct was improper. IAF, Tab 31

at 70-71, Tab 42 at 22-23, 27-30; see Carr, 185 F.3d at 1326 (observing that

Federal whistleblower protections are “not meant to protect employees from their

own misconduct”); Redfearn v. Department of Labor, 58 M.S.P.R. 307, 316

(1993) (recognizing that an agency is entitled to expect its employees to conform

to certain accepted standards of civil behavior and decorum). In any event, the

deciding official stressed that the agency was particularly concerned with time

and attendance issues and that he would have suspended the appellant for 1 day

based on specification 1 alone. IAF, Tab 68 at 6. Accordingly, the agency has

submitted strong evidence showing that it would have suspended the appellant for

1 day even absent specification 2 and her other protected disclosures.

Regarding the second Carr factor, the administrative judge found that the

appellant’s former supervisor had no motive to retaliate against her. ID at 17.

On review, the appellant argues that he had a motive to retaliate against her

because he was implicated by her disclosures, given that he was the Branch Chief

overseeing the Phacil contract in 2014. PFR File, Tab 7 at 14-15.

Agency officials may have a motive to retaliate even when they are not

directly implicated by the disclosures, are not directly involved in the retaliatory

actions, or are not personally named in the disclosure because the disclosure

could reflect poorly on them in their capacity as managers and employees.

Whitmore, 680 F.3d at 1370-72; Mattil v. Department of State, 118 M.S.P.R. 662,

¶ 27 (2012). Although the appellant identifies evidence showing that Phacil was

not performing to the terms of its contract in 2014, she has not identified any

evidence in the record showing that her former supervisor was responsible for

overseeing the Phacil contract in 2014, and thereby directly or indirectly

implicated by her disclosures. PFR File, Tab 7 at 15; IAF, Tab 70 at 123. To the

extent that the Phacil disclosures may have reflected poorly on the appellant’s

former supervisor as a manager or employee, we find that her former supervisor

had a strong motive to retaliate against her based on those disclosures. See

Robinson v. Department of Veterans Affairs, 923 F.3d 1004, 1019 (Fed. Cir.

2019) (considering under the second Carr factor whether there was a professional

motive to retaliate); Wilson v. Department of Veterans Affairs, 2022 MSPB 7,

¶ 65 (addressing the second Carr factor consistent with Whitmore to find that the

appellant’s disclosures generally put higher-level management officials in a

critical light by disclosing problems for which they were responsible); Chavez v.

Department of Veterans Affairs, 120 M.S.P.R. 285, ¶¶ 32-33 (2013) (finding that

an appellant’s disclosures of subordinate employees’ wrongdoing created a

motive to retaliate on the part of their first- and second -level supervisors).

The appellant does not argue that the Chief Investigator of WRD—the only

official to whom she disclosed potential violations of the FLSA—had any motive

to retaliate against her based on her disclosure. There is also no evidence in the

record that the Chief Investigator influenced any of the officials responsible for

taking any of the challenged personnel actions. However, the appellant does

suggest that her former supervisor was implicated in the disclosure because he

was aware that she was working excessive hours and permitted or encouraged her

to do so. IAF, Tab 70 at 15-16, 30-31. Accordingly, to the extent that the

appellant’s disclosure of potential FLSA violations reflected poorly on her former

supervisor, we find that the supervisor had a strong motive to retaliate. We

modify the initial decision in this regard.

Further, the appellant argues that her former supervisor sent an email on

April 14, 2016, showing that his decision to take “adverse actions” against the

appellant was motivated by her protected disclosures. PFR File, Tab 7 at 15. In

the email, he commented on a string of emails forwarded to him by a human

resources employee from the appellant complaining about another supervisor’s

decision to move her to another shared office. IAF, Tab 70 at 231-42. The

appellant does not allege that she exhausted that disclosure with OSC; therefore,

the Board lacks jurisdiction to consider it in connection with the instant IRA

appeal. Mason v. Department of Homeland Security, 116 M.S.P.R. 135, ¶ 8

(2011) (explaining that the Board may only consider those disclosures of

information and personnel actions that the appellant raised before OSC). There is

no indication that her former supervisor was discussing or otherwise referencing

the appellant’s protected disclosures. Accordingly, this email is not a basis for

finding that her former supervisor had a motive to retaliate against her.

Finally, the administrative judge weighed the third Carr factor in the

agency’s favor. ID at 17, 21. As to her FY 2015 performance evaluation, the

appellant does not dispute the administrative judge’s findings that her former

supervisor issued fully successful ratings to non-whistleblowers for FY 2015. ID

at 16-17. As to her 1-day suspension, she argues that the comparators that the

agency offered were not similarly situated because they engaged in more severe

misconduct. PFR File, Tab 7 at 20-21. The U.S. Court of Appeals for the Federal

Circuit clarified that employees may be similarly situated even if there are

differences in the degrees of misconduct, but that such differences “should be

accounted for” in “arriv[ing] at a well reasoned conclusion.” Whitmore, 680 F.3d

at 1373-74. With regard to the lowered performance rating, the agency offered

evidence showing that the appellant’s former supervisor rated eight of his twenty

employees fully successful, five of whom were also GS-13 employees. ID at 17;

IAF, Tab 68 at 9.

Thus, we agree with the administrative judge that the appellant’s former

supervisor rated non-whistleblowers the same as the appellant under similar

circumstances. ID at 17. The agency also submitted a spreadsheet listing over

180 instances in which the agency proposed discipline for employees’ time and

attendance-related misconduct between 2013 and 2015. IAF, Tab 68 at 24, 27-45.

Further, the agency submitted a declaration from the Chief Investigator of the

WRD, in which he asserted under penalty of perjury that the agency “considered

employees working from an unauthorized location to be absent without leave.”

IAF, Tab 68 at 23. The agency also identified two employees that received more

severe punishment for their time and attendance abuse—primarily for claiming

time not worked. IAF, Tab 31 at 15-16. The evidence shows that the agency

consistently punishes employees for time and attendance violations and issues

proportionate punishment relative to the severity of the misconduct, regardless of

their whistleblowing activities or lack thereof.

When balancing the three Carr factors, we find that the agency met its

burden of proving by clear and convincing evidence that it would have lowered

the appellant’s performance rating and suspended her in the absence of her

protected disclosures, even considering the presence of a strong retaliatory

motive, because of the strength of the agency’s evidence in support of its

decisions and the comparator evidence presented. Accordingly, we affirm the

initial decision as modified.

NOTICE OF APPEAL RIGHTS 13

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the following

address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 14 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address: