Opinion

Ronald Davis v. Department of the Air Force

Court: Merit Systems Protection Board
Filed: May 7, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.0%

finding that, if supervisors fear that every trivial lapse in their own behavior will be the subject of a whistleblowing complaint, they will be deterred from performing their duties

How later courts described this case

finding that, if supervisors fear that every trivial lapse in their own behavior will be the subject of a whistleblowing complaint, they will be deterred from performing their duties
making this finding based on the same language in the prior Whistleblower Protection Act

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RONALD A. DAVIS, DOCKET NUMBER

Appellant, DC-1221-17-0350-W-1

DEPARTMENT OF THE AIR FORCE, DATE: May 7, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Ronald A. Davis , Baltimore, Maryland, pro se.

Avis McAllister , Esquire, Joint Base Andrews, Maryland, 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 that

denied his request for corrective action in his 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

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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. Because we find that the

administrative judge erroneously found that the appellant made protected

disclosures, we VACATE the initial decision and DENY the appellant’s request

for corrective action.

BACKGROUND

The appellant worked for the agency as a Financial Management Specialist

at Joint Base Andrews. Initial Appeal File (IAF), Tab 1 at 2. In June 2016, the

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

that, in reprisal for making protected disclosures, the agency denied him

opportunities for training in 2015 and did not select him for two positions in

2016. Id. at 8, 13-14. The disclosures included a September 15, 2014 email from

the appellant to his second-level supervisor alleging that his first -level supervisor

violated the Merit Systems Principles on September 12, 2014, when he said aloud

in front of the office that the appellant had a work assignment due by 8 a.m. the

following Monday. IAF, Tab 1 at 13-14, Tab 4 at 9-11. The second disclosure

concerned an October 14, 2015 email from the appellant to his third -level

supervisor claiming that his second-level supervisor violated his privacy rights by

discussing his use of sick leave while on speaker phone with his team leader

present. IAF, Tab 1 at 14, Tab 4 at 12-13. In December 2016, OSC closed the

investigation into the appellant’s complaint with no further action, and this IRA

appeal to the Board followed. IAF, Tab 1 at 2-7, 20-22.

After finding jurisdiction over the appeal and holding a hearing, the

administrative judge issued an initial decision denying the appellant’s request for

corrective action. IAF, Tab 40, Initial Decision (ID). The administrative judge

concluded that the appellant met his burden of proving that he exhausted his

administrative remedies with OSC, made protected whistleblowing disclosures

when sending the emails to supervisors on September 15, 2014, and October 14,

2015, and such disclosures were a contributing factor in the agency’s decisions to

deny him training and not select him for the positions at issue. ID at 3-5.

However, the administrative judge further found that the agency proved by clear

and convincing evidence that it would have taken these actions against the

appellant in the absence of his protected disclosures. ID at 5-10. The appellant

has filed a petition for review. Petition for Review (PFR) File, Tab 1. The

agency has responded in opposition, and the appellant has filed a reply. PFR

File, Tabs 4-5.

ANALYSIS

In the absence of an action directly appealable to the Board, only

allegations of protected disclosures and activity, along with personnel actions,

that an appellant first raises and exhausts with OSC may be considered by the

Board in an IRA appeal. 2 See Rebstock Consolidation v. Department of

Homeland Security, 122 M.S.P.R. 661, ¶ 9 (2015); Mason v. Department of

Homeland Security, 116 M.S.P.R. 135, ¶ 8 (2011). In order to prevail on the

merits of an IRA appeal before the Board, an appellant must prove by

preponderant evidence that he made a 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 the disclosure or protected activity was a

contributing factor in the agency’s decision to take or fail to take a personnel

action outlined in 5 U.S.C. § 2302(a)(2)(A). 5 U.S.C. § 1221(e); Salerno v.

The appellant does not allege an action directly appealable to the Board in this appeal.

See 5 U.S.C. §§ 4303, 7512.

Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). If this burden is met,

the Board must order corrective action unless the agency establishes by clear and

convincing evidence that it would have taken the same personnel action despite

the appellant making the protected disclosure or engaging in the protected

activity. 5 U.S.C. § 1221(e)(2); Carr v. Social Security Administration, 185 F.3d

1318, 1322-23 (Fed. Cir. 1999); Aquino v. Department of Homeland Security ,

121 M.S.P.R. 35, ¶ 10 (2014).

The administrative judge properly determined that the appellant exhausted his

administrative remedies with OSC.

In order for the Board to have jurisdiction over an IRA appeal, the

appellant, amongst other requirements, must first prove by preponderant evidence

that he exhausted his administrative remedies regarding the allegation with OSC.

Salerno, 123 M.S.P.R. 230, ¶ 5; 5 C.F.R. § 1201.57(c)(1). The purpose of this

exhaustion requirement is to give OSC “the opportunity to take corrective action

before involving the Board in the case.” Ward v. Merit Systems Protection

Board, 981 F.2d 521, 526 (Fed. Cir. 1992). The Whistleblower Protection

Enhancement Act of 2012 provides that, if OSC finds that there is a substantial

likelihood that the information it received discloses a violation of the Act, it

“shall transmit the information to the head of the agency involved for

investigation and report . . . .” Id. (making this finding based on the same

language in the prior Whistleblower Protection Act); see 5 U.S.C. § 1213(b), (c).

These inquiries by OSC, and their transmittal to agencies for remedial action, are

a major component of OSC’s work. Ward, 981 F.2d at 526.

The Board may consider only those disclosures of information and

personnel actions that the appellant raised before OSC. Mason, 116 M.S.P.R.

135, ¶ 8. To satisfy the exhaustion requirement, an appellant must provide to

OSC a sufficient basis to pursue an investigation that might lead to corrective

action. Chambers v. Department of Homeland Security, 2022 MSPB 8, ¶ 10. The

test of the sufficiency of an appellant’s charge of reprisal for whistleblowing to

OSC is the statement that he makes in the complaint requesting corrective action,

not his post hoc characterization of those statements . Id., ¶ 11. An appellant may

demonstrate exhaustion through his initial OSC complaint, evidence that he

amended the original complaint, including but not limited to OSC’s preliminary

determination letter and other letters from OSC referencing any amended

allegations, and the appellant’s written responses to OSC referencing the

amended allegations. Id.

During the adjudication of this appeal before the administrative judge, and

then again on review, the appellant made vague assertions that he included in his

OSC complaint at issue other supposed protected activity, his perceived

whistleblower status, and retaliatory personnel actions. IAF, Tab 19 at 4, 6;

Hearing Compact Disc (HCD) 1 (testimony of the appellant); PFR File, Tab 1

at 15, 22, 24-25. However, as the administrative judge correctly determined, the

appellant only proved that he exhausted administrative remedies with OSC prior

to filing the instant IRA appeal regarding the emails that he sent his supervisors

on September 15, 2014, and October 14, 2015, and the denial of training and

nonselections as outlined above. IAF, Tab 18 at 2; ID at 3-4. As a result, the

Board has no jurisdiction to consider any additional allegations of reprisal that

the appellant puts forth in this appeal. See Boechler v. Department of the

Interior, 109 M.S.P.R. 638, ¶ 13 (2008) (concluding that the Board lacked

jurisdiction in an IRA appeal when the appellant failed to prove that he exhausted

administrative remedies with OSC over the alleged claims), aff’d, 328 F. App’x.

660 (Fed. Cir. 2009) (Table).

The appellant failed to meet his burden of proving that he made a protected

disclosure.

Protected whistleblowing takes place 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)(A);

DeLeonardo v. Equal Employment Opportunity Commission, 103 M.S.P.R. 301,

¶ 6 (2006). The appellant need not prove that the condition disclosed actually

established a violation of law, rule, or regulation; gross mismanagement of funds;

a gross waste of funds; an abuse of authority; or a substantial and specific danger

to public health or safety. Peterson v. Department of Veterans Affairs,

116 M.S.P.R. 113, ¶ 11 (2011). The test for determining whether the appellant

had a reasonable belief that his disclosure was protected is whether a

disinterested observer with knowledge of the essential facts, known to and readily

ascertainable by the appellant, could reasonably conclude that the actions of the

Government evidence one of the categories of wrongdoing noted above. Id.

The appellant’s first disclosure is not protected.

The appellant claimed that the first disclosure, his September 15, 2014

email that he sent to his second-level supervisor, is protected because it identifies

violations of the Merit System Principles codified at 5 U.S.C. § 2301. IAF, Tab 1

at 13-14, Tab 4 at 4, 9-11. According to the appellant, the supposed wrongdoing

exposed is how his first-level supervisor acted unprofessionally and advised him

loudly in the workplace of the due date of a single assignment tasked to him.

IAF, Tab 1 at 13-14, Tab 4 at 4, 9-11. On the day in question, the appellant states

that, as he was leaving the office for the week, his first-level supervisor said to

him, “I want that report by 8 o’clock on Monday morning,” then stated words to

the effect of, “when we tell you something, you need to do it.” IAF, Tab 4 at 10.

The appellant was aware of what assignment was at issue and that it was indeed

to be completed as informed. Id. at 9-11; HCD 1 (testimony of the appellant).

There is no evidence of any confidential personnel matter discussed in the

presence of others. There was no criticism or critique of the appellant’s work;

rather, just a reminder of a due date and an axiomatic statement that, absent

circumstances not present here, employees need to comply with supervisory

instructions. IAF, Tab 4 at 10. It is the supervisor’s responsibility to remind

employees of assignment due dates. 3 The Merit System Principles outlined at

5 U.S.C. § 2301 set the general guidelines for Government agencies in the

management of personnel, providing for the fair and equitable treatment of

employees without regard to prohibited reasons, and setting other aspirational

standards in areas such as recruitment, pay, retention, performance, and training.

The supposed offense alleged by the appellant is at best only tangentially related

to the standards set forth in section 2301.

The appellant certainly disagreed with his supervisor’s handling of this

situation. At most, however, his purported disclosure involved his questioning of

a management action that is merely debatable or nominally unprofessional. It is

well-settled that, with nothing more, disclosures of this type of behavior are not

protected. The whistleblower protection statutes were not intended to turn every

failure to exercise perfect management behavior into the subject of a

whistleblowing complaint. See Frederick v. Department of Justice, 73 F.3d 349,

353 (Fed. Cir. 1996) (finding that, if supervisors fear that every trivial lapse in

their own behavior will be the subject of a whistleblowing complaint, they will be

deterred from performing their duties). In sum, with his almost four decades of

Government service, we find that the appellant could not have reasonably

believed that he was exposing wrongdoing as defined in the whistleblower

protection statutes when he advised his second-level supervisor that his first-level

supervisor reminded him in front of others of the due date of an assignment

tasked to him.

The appellant’s second disclosure is not protected.

Moving to the other disclosure, in his October 14, 2015 email to his

third-level supervisor, the appellant alleged that his second-level supervisor

It is commonplace in the Federal government for employees within an office to have

access to the deadlines of projects assigned to others. For example, a case tracking

system often readily indicates when briefs or other legal documents are due, and a

project management application often shows when reports are due.

violated his privacy rights by discussing his use of sick leave while on speaker

phone with his team leader present. IAF, Tab 1 at 14, Tab 4 at 4-5, 12-13.

During this conversation, the appellant’s second-level supervisor called the

appellant in the appellant’s team leader’s presence to ascertain the appellant’s

duty status, as they were not aware that he was on sick leave. 4 IAF, Tab 4

at 12-13. After the appellant informed his second-level supervisor that he was

out for the day, the second-level supervisor asked if the appellant planned to be at

work the following day and then instructed the appellant to inform the office of

his absence. Id.

There is no evidence that the appellant’s second-level supervisor discussed

any confidential health or personnel matters on this call. While an employee

might have a privacy interest in not having his usage of sick leave shared with

those without a need to know, as the appellant conceded, his supervisors and team

leader bore the responsibility to know his work status. HCD 1 (testimony of the

appellant). The appellant also testified that he was pleased with how the office

procedures changed shortly after this incident because employees now have to

notify their team leader when they are requesting sick leave, which weighs

against him reasonably believing that it was improper for his supervisor to

discuss his use of sick leave in the presence of his team leader. Id. Thus, we find

that the appellant did not reasonably believe that he disclosed 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.

For the forgoing reasons, the appellant’s disclosures at issue in this appeal

were not protected, meaning his request for corrective action must be denied on

these grounds. See Kleckner v. Department of Veterans Affairs , 96 M.S.P.R. 331,

¶ 7 (2004) (denying the appellant’s request for corrective action in his IRA

appeal, as he did not prove by preponderant evidence that his disclosures were

Although the conversation took place on a speaker phone, there is no specific

allegation that another employee overheard the conversation.

protected). As such, we need not determine whether the appellant met his burden

of proving that such disclosures were a contributing factor to the contested

personnel actions or whether the agency proved by clear and convincing evidence

that it would have made the same decisions in the absence of the disclosures. See

Harvey v. Department of the Navy, 92 M.S.P.R. 51, ¶ 5 n.3 (2002) (holding that,

because the appellant did not prove his prima facie case of whistleblower reprisal,

there was no need to determine whether the agency met its clear and convincing

standard).

The appellant failed to raise any other basis to grant his petition for review.

On review, the appellant alleges that the administrative judge committed

various errors, such as denying his motions to compel and to sanction the agency

for not complying with discovery, unduly denying his request for witnesses to

testify at hearing, and acting inappropriately during the hearing. PFR File, Tab 1

at 4-6, 19-22. However, the purported rulings and evidence that the appellant

claims that he would have gained from his motions being granted and witnesses

approved have no impact on the dispositive finding that he failed to make a

protected disclosure. Notwithstanding, we have reviewed the record and

conclude that the denial of the appellant’s discovery-related motions was not an

error or abuse of discretion by the administrative judge. See Vores v. Department

of the Army, 109 M.S.P.R. 191, ¶ 14 (2008) (stating that administrative judges

have broad discretion in regulating discovery and, absent a showing of an abuse

of discretion, the Board will not find reversible error), aff’d, 324 F. App’x. 883

(Fed. Cir. 2009). Further, the denial of a number of the appellant’s requested

witnesses on relevance grounds was appropriate. 5 See Miller v. Department of

Defense, 85 M.S.P.R. 310, ¶ 8 (2000) (outlining how an administrative judge has

wide discretion to control the proceedings, including authority to exclude

The administrative judge did approve six of the appellant’s requested witnesses to

testify at the hearing. IAF, Tab 28 at 2.

testimony she believes would be irrelevant or immaterial). Additionally, we see

no indication that the administrative judge acted improperly during the hearing.

Similarly, the appellant’s arguments on review regarding supposed errors in

the administrative judge’s credibility determinations and analysis of the agency’s

actions under the Carr factors need not be addressed further, as they are unrelated

to the overall conclusion that the appellant’s request for corrective action must be

denied due to his failure to make a protected disclosure. PFR File, Tab 1 at 6-19,

23-24; see, e.g., Cole v. Department of Veterans Affairs, 77 M.S.P.R. 434, 439

(1998) (holding that a remand was unnecessary, as the issues to be adjudicated by

the Board on review did not require credibility determinations); see also Buckler

v. Federal Retirement Thrift Investment Board, 73 M.S.P.R. 476, 496 (1997)

(holding that, because the appellant did not meet each of his merit requirements,

no consideration was necessary as to whether the agency showed by clear and

convincing evidence that it would have taken the same action despite the

appellant’s protected disclosure).

NOTICE OF APPEAL RIGHTS 6

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

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.

filing time limits and requirements. Failure to file 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. 7 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