Marquese Lewis v. Department of Defense

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MARQUESE LEWIS, DOCKET NUMBER

Appellant, DC-1221-16-0695-W-2

v.

DEPARTMENT OF DEFENSE, DATE: May 6, 2024

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

David Fallon , Esquire, Albany, New York, for the appellant.

Elizabeth E. Pavlick , Esquire, and Lundi Shafiei , Esquire, Washington,

D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

REMAND ORDER

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

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

appeal. For the reasons discussed below, we GRANT the appellant’s petition for

review, VACATE the initial decision’s analysis of the agency’s clear and

convincing burden but otherwise AFFIRM the initial decision, and REMAND the

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

case to the Washington Regional Office for further adjudication in accordance

with this Remand Order. 2

BACKGROUND

The appellant transferred from the Department of Transportation to the

agency’s Washington Headquarters Services (WHS) in November 2014 as a

GS-13 Strategic Communications Specialist. Lewis v. Department of Defense,

MSPB Docket No. DC-1221-16-0695-W-1, Initial Appeal File (IAF), Tab 1 at 1,

Tab 7 at 75; Hearing Transcript (Oct. 16, 2017) (HT1) at 8-9 (testimony of the

appellant). The appellant worked for the WHS Corporate Communications

Division (CCD) from November 2014, until her June 2015 management-directed

reassignment to the Boards, Commissions, and Task Forces (BCTF) Support

Division. IAF, Tab 6 at 68-70, Tab 7 at 75.

In June 2015, the appellant filed a complaint with the Office of Special

Counsel (OSC) in which she alleged retaliation for whistleblowing. IAF, Tab 5

at 16-22. The appellant alleged that she made protected disclosures on or around

December 19, 2014, to the WHS Acting Deputy Director and, in January 2015, to

her first-line supervisor, A.D., that her former first-line supervisor, K.Y., engaged

in timecard falsification and that agency contractors falsified their time and

disregarded policies concerning work assignments. Id. at 16-22, 51-56. The

appellant alleged that the agency took the following actions in retaliation for her

disclosures: (1) terminated her during her probationary period on April 30,

2015; 3 (2) issued her a letter of reprimand (LOR) on June 9, 2015, after her

reinstatement; (3) reassigned her in June 2015 from the CCD at the Pentagon to

2

During the pendency of this appeal, the National Defense Authorization Act for Fiscal

Year 2018 (NDAA), Pub. L. No. 115-91, 131 Stat. 1283, was signed into law on

December 12, 2017. Section 1097 of the NDAA amended various provisions of title 5

of the United States Code. Our disposition of this matter would be the same under both

pre- and post-NDAA law.

3

The agency subsequently rescinded the probationary termination after realizing that

the appellant had constitutional due process rights. IAF, Tab 6 at 5.

3

the BCTF at the Mark Center (which added approximately 30 minutes to her daily

commute) and removed some communications duties from her upon her

reassignment to the BCTF; (4) lowered her performance appraisal; 4 and (5) forced

her to take 80 hours of leave without pay (LWOP) because of the hostile work

environment in the CCD. IAF, Tab 5 at 16-22, 27-30, 32-34, Tab 6 at 16-70.

On May 24, 2016, OSC terminated its inquiry into her complaint and

apprised her of Board appeal rights. IAF, Tab 1 at 13-15. The appellant timely

filed this IRA appeal on June 29, 2016. IAF, Tab 1. The administrative judge

found that the Board has jurisdiction over this IRA appeal and set a hearing for

October 2017. IAF, Tab 14 at 1-3, Tab 30. The administrative judge dismissed

the appeal without prejudice based on the parties’ scheduling conflicts, IAF,

Tab 32 at 1-3, and “reopen[ed]” 5 the appeal on September 29, 2017, id. at 2;

Lewis v. Department of Defense, MSPB Docket No. DC-1221-16-0695-W-2,

Appeal File (W-2 AF), Tab 1.

After a hearing, the administrative judge denied the appellant’s request for

corrective action. 6 W-2 AF, Tabs 12-13, Tab 14, Initial Decision (ID) at 2, 28.

The administrative judge found that two of the appellant’s three disclosures were

protected by Federal whistleblower laws—alleged time card falsification by K.Y.,

her former CCD first-line supervisor, and alleged creation of a hostile work

4

The appellant worked for the Department of Transportation before joining the agency

in November 2014, HT1 at 8-9, so this was her first performance appraisal at WHS,

IAF, Tab 6 at 62-67. The appellant received an overall Fully Successful rating and a

$520 performance award. Id. at 66. The record does not reflect her overall

performance ratings at the Department of Transportation.

5

It appears that the administrative judge intended to “refile,” rather than “reopen,” the

appeal because administrative judges lack the authority to “reopen” or “reinstate” an

appeal. See Carroll v. Office of Personnel Management, 114 M.S.P.R. 310, ¶ 9 (2010).

6

Immediately preceding the first day of the hearing, the administrative judge allowed

the appellant to raise a claim that she disclosed that her CCD first-line supervisor, A.D.,

engaged in an abuse of authority by creating a hostile work environment. ID at 2 n.2.

The agency objected to the appellant’s request, but the administrative judge found that

the appellant exhausted this disclosure with OSC before filing the IRA appeal. Id.

(citing IAF, Tab 5 at 89-91). The agency does not challenge this ruling on review.

Petition for Review File, Tab 5.

4

environment by A.D., her then-CCD first-line supervisor. ID at 5-12, 15-17. The

administrative judge found that the appellant’s disclosure that agency contractors

disregarded policies related to work assignments was not a protected disclosure

but a debatable policy disagreement. ID at 12-15. The administrative judge

further found that the appellant’s two protected disclosures were a contributing

factor in the five personnel actions at issue, ID at 17-18, but that the agency met

its burden to show by clear and convincing evidence that it would have taken all

of the personnel actions even absent the appellant’s protected whistleblowing,

ID at 18-28.

The appellant has timely filed a petition for review, 7 the agency has

responded in opposition, and the appellant has filed a reply to the agency’s

response. 8 Petition for Review (PFR) File, Tabs 3, 5-6.

DISCUSSION OF ARGUMENTS ON REVIEW

Once an appellant establishes jurisdiction over her IRA appeal, she is

entitled to a hearing on the merits of her claim, which she must prove by

preponderant evidence. 9 Salerno v. Department of the Interior, 123 M.S.P.R.

7

The appellant requested an extension of time to file her petition for review, which the

Office of the Clerk of the Board granted. Petition for Review File, Tabs 1-2.

8

In her reply brief, the appellant raises a new argument and asserts that the agency

conceded in its closing summation that it terminated her during her probationary period

because it initially believed that she was a “whistleblower[.]” PFR File, Tab 6 at 14.

We have reviewed both the hearing transcript and the hearing recording and, although

agency counsel does use the word “whistleblower,” it is clear from the context and the

rest of the agency counsel’s statement that she meant to say “probationer.”

Hearing Transcript (Oct. 17, 2017) at 406-07 (statement of agency counsel); W-2 AF,

Tab 13. In any event, statements made by an agency representative during a closing

argument are generally not evidence. See Hartsock-Shaw v. Office of Personnel

Management, 107 M.S.P.R. 17, ¶ 10 (2007). Moreover, a reply brief is limited to the

issues raised by another party in the response to the petition for review. 5 C.F.R.

§ 1201.114(a)(4). This issue was not raised in the agency’s response. Therefore, we

have not considered this argument as part of our analysis. See Boston v. Department of

the Army, 122 M.S.P.R. 577, ¶ 5 n.3 (2015) (declining to consider new arguments first

raised in a reply brief.)

9

Preponderant evidence is the degree of relevant evidence that a reasonable person,

considering the record as a whole, would accept as sufficient to find that a contested

5

230, ¶ 5 (2016). If the appellant makes such a showing, the burden shifts to the

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

same action in the absence of the disclosure. 10 Id.; see 5 U.S.C. § 1221(e)(2)

(setting forth the agency’s clear and convincing evidentiary burden). The Board

will consider the following factors to determine if an agency has met this burden:

(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. Carr v. Social Security Administration, 185 F.3d

1318, 1323 (Fed. Cir. 1999); see Whitmore v. Department of Labor, 680 F.3d

1353, 1368 (Fed. Cir. 2012) (recognizing that “[e]vidence only clearly and

convincingly supports a conclusion when it does so in the aggregate considering

all the pertinent evidence in the record, and despite the evidence that fairly

detracts from that conclusion”).

On review, the appellant does not challenge the administrative judge’s

finding that her disclosure about agency contractors disregarding policies about

work assignments was not protected, considering that the administrative judge

found that she otherwise established a prima facie case of whistleblower reprisal.

PFR File, Tab 3 at 15-16. The agency has not filed any cross -petition for review

to challenge the administrative judge’s findings that the appellant established a

prima facie case of whistleblower reprisal, and we find no basis to disturb these

well-reasoned findings. ID at 4-18; see Clay v. Department of the Army,

123 M.S.P.R. 245, ¶ 6 (2016) (finding no reason to disturb the administrative

judge’s findings when she considered the evidence as a whole, drew appropriate

inferences, and made reasoned conclusions).

fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

10

Clear and convincing evidence is that measure or degree of proof that produces in the

mind of the trier of fact a firm belief as to the allegations sought to be established. It is

a higher standard than preponderance of the evidence. 5 C.F.R. § 1209.4(e).

6

The only dispositive issue on review is whether the agency proved by clear

and convincing evidence that it would have taken all five personnel actions even

absent the appellant’s protected whistleblowing. 11 PFR File, Tab 3 at 16. The

appellant claims that the agency failed to meet its clear and convincing burden for

all five personnel actions. Id. at 16-27. She asserts that the evidence relied on to

support her probationary termination was “woefully deficient to support any

adverse action” considering that the agency rescinded it shortly thereafter as

erroneous. Id. at 16-17. She further asserts that the agency officials involved in

her probationary termination had a strong motive to retaliate because she

disclosed wrongdoing by her former CCD supervisor, K.Y., and she disclosed a

hostile work environment in the CCD, which was substantiated by an agency

investigation that specifically criticized CCD leadership. Id. at 17-18; W-2 AF,

Tab 5 at 44-45. Moreover, she contends that the administrative judge failed to

undertake “any detailed analysis of the Carr factors” and misstated the facts that

supported the agency’s actions. PFR File, Tab 3 at 19, 22-24. For the reasons set

forth below, we agree that the administrative judge’s Carr factor analysis is

incomplete.

The administrative judge found that the appellant, A.D., and the WHS

Acting Deputy Director all testified credibly during the 2-day hearing.

ID at 10-11. Nevertheless, the administrative judge found that the agency proved

by clear and convincing evidence that it would have taken all five personnel

actions even in the absence of the appellant’s whistleblowing. The administrative

judge found that the appellant’s misconduct, i.e., sending mass emails that

disparaged contractor staff in violation of A.D.’s orders, deserved some discipline

(as described in the June 9, 2015 LOR). ID at 26. She further found that,

although A.D. was improperly advised by Human Resources (HR) staff to

11

To the extent that the appellant asserts on review that the administrative judge

improperly shifted the agency’s clear and convincing burden to herself, PFR File, Tab 3

at 24, 26, the appellant has not described how the administrative judge shifted that

burden to her, nor do we find any error by the administrative judge.

7

terminate the appellant during her probationary period, this error was not based

upon the appellant’s whistleblowing because there was no evidence that the HR

staff knew of the appellant’s whistleblowing activity. Id. The administrative

judge found further that none of the appellant’s CCD coworkers who made the

same disclosures to the WHS Acting Deputy Director and A.D. suffered any

disciplinary action because of those disclosures, ID at 26; that there was no

connection between the appellant’s performance evaluation or her use of 80 hours

of LWOP and her whistleblowing, ID at 27; and that the appellant’s reassignment

to the BCTF upon her reinstatement, with its concomitant change in her

communications duties, was made by a different WHS official who wanted to

give the appellant a fresh start in an important and respected WHS office,

ID at 27. 12

Although the administrative judge made some findings about the strength

of the evidence in support of the appellant’s probationary termination and the

June 9, 2015 LOR, ID at 26-28, she did not make any findings about the existence

and strength of any motive to retaliate by the agency officials who were involved

in any of the personnel actions at issue ( Carr factor 2). 13 An initial decision must

identify all material issues of fact and law, summarize the evidence, resolve

12

The administrative judge also noted that the appellant previously requested

reassignment from the CCD to a different unit within WHS before her now-rescinded

probationary termination. ID at 27; HT1 at 67 (testimony of the appellant).

13

The administrative judge’s minimal Carr factor 1 evaluation of the appellant’s

performance appraisal, reassignment to the BCTF, and use of 80 hours of LWOP was

limited to finding no connection between the appellant’s whistleblowing and these

personnel actions. ID at 27. Moreover, it appears that the administrative judge used an

inappropriate Carr factor 1 standard for these personnel actions. The Board has

recognized that Carr factor 1 does not apply straightforwardly when the personnel

action is not disciplinary and, therefore, does not require supporting evidence of

misconduct. See Gonzales v. Department of the Navy, 101 M.S.P.R. 248, ¶ 12 (2006).

Rather, the Board must consider whether the agency had legitimate reasons for

imposing the action when evaluating the strength of the agency’s evidence. Id. Thus,

on remand, the administrative judge must thoroughly analyze the appellant’s

performance appraisal, reassignment to the BCTF, and use of 80 hours of LWOP under

this appropriate Carr factor 1 standard.

8

issues of credibility, and include the administrative judge’s conclusions of law

and legal reasoning, as well as the authorities on which that reasoning rests.

Mastrullo v. Department of Labor, 123 M.S.P.R. 110, ¶ 14 (2015). The U.S.

Court of Appeals for the Federal Circuit has held that, although the agency’s

treatment of similarly situated whistleblowers “may illuminate any motive to

retaliate under Carr factor 2, it does not show the agency’s treatment of

non-whistleblower employees accused of similar misconduct, the precise inquiry

considered under Carr factor 3.” Siler v. Environmental Protection Agency ,

908 F.3d 1291, 1299 (Fed. Cir. 2018).

The appellant contends that A.D. had a strong motive to retaliate because

her disclosures of a hostile work environment led directly to the agency’s

March 2015 Assessment Report, which found that leadership in the CCD was “not

effective” and the “number one concern expressed throughout the assessment.”

PFR File, Tab 3 at 17-18; W-2 AF, Tab 5 at 45; Hearing Transcript (October 17,

2017) (HT2) at 263 (testimony of A.D.). The Assessment Report’s conclusions

about CCD leadership, however, focused almost exclusively on K.Y., the former

supervisor, and E.S., a contract supervisor, not A.D., whom WHS had promoted

2 months earlier to fix the hostile work environment in the CCD. W-2 AF, Tab 5

at 45. Nevertheless, responsible agency officials “may well be motivated to

retaliate even if they are not directly implicated by the disclosures” at issue.

Whitmore, 680 F.3d at 1370.

The administrative judge also never made any findings about the agency’s

treatment of similarly situated non-whistleblowers ( Carr factor 3). The

administrative judge noted that A.D. never disciplined the appellant’s CCD

coworkers who made the same December 2014 and January 2015 disclosures, but

she did not describe which Carr factor this fact supported or how this affected her

overall analysis of the agency’s clear and convincing burden. An agency need not

introduce evidence of every Carr factor to prove its case, but the “risk associated

with having no evidence on record” for a particular factor falls on the

9

Government. Miller v. Department of Justice, 842 F.3d 1252, 1262 (Fed. Cir.

2016) (noting that, although the absence of any evidence relating to Carr factor 3

can effectively remove that factor from the analysis, the Government bears the

risk associated with having no evidence on record for this factor); see Mithen v.

Department of Veterans Affairs, 122 M.S.P.R. 489, ¶ 36 (2015) (describing how

the Board does not view the Carr factors as discrete elements, each of which the

agency must prove by clear and convincing evidence, but will weigh the factors

together to determine whether the evidence is clear and convincing as a whole),

aff’d, 652 F. App’x 971 (Fed. Cir. 2016); see also Siler, 908 F.3d at 1299

(holding that Carr factor 3 cannot favor the Government when the Board finds an

absence of relevant comparator evidence). The appellant alleged that agency

officials, including A.D., treated K.Y., her non-whistleblower former CCD

supervisor who failed to submit required telework reports, differently by failing

to discipline her. PFR File, Tab 3 at 18; HT2 at 234 (testimony of A.D.). The

administrative judge did not address this allegation. We make no finding as to

whether K.Y. is an appropriate comparator under Carr factor 3 and leave it for

the administrative judge to make that determination in the first instance on

remand. See Whitmore, 680 F.3d at 1373 (noting that “[d]ifferences in kinds and

degrees of conduct between otherwise similarly situated persons within an agency

can and should be accounted for to arrive at a well-reasoned conclusion regarding

Carr factor three.”).

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

factor analysis is incomplete. We vacate all of the administrative judge’s

findings regarding the agency’s clear and convincing burden and remand this

appeal to the Washington Regional Office for further adjudication. On remand,

the administrative judge may further develop the record and, if necessary, hold a

supplemental hearing. The administrative judge must explicitly address all three

Carr factors on remand. See, e.g., Mithen v. Department of Veterans Affairs,

119 M.S.P.R. 215, ¶¶ 23-24 (2013) (remanding the case to the administrative

10

judge for an assessment of the clear and convincing issue, including rendering

credibility determinations); Massie v. Department of Transportation,

118 M.S.P.R. 308, ¶¶ 7-8 (2012) (remanding the case for consideration of the

evidence as a whole under Whitmore).

ORDER

For the reasons discussed above, we REMAND this case to the Washington

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

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.