Opinion

Michael Keegan v. Social Security Administration

Court: Merit Systems Protection Board
Filed: May 20, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.1%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MICHAEL J. KEEGAN, DOCKET NUMBER

Appellant, PH-1221-15-0121-W-1

SOCIAL SECURITY DATE: May 20, 2024

ADMINISTRATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Daniel E. Kenney , Esquire, Chevy Chase, Maryland, for the appellant.

Edward C. Tompsett , Esquire, Philadelphia, Pennsylvania, for the agency.

Joseph Langkamer , Esquire, Seattle, Washington, 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 his request for corrective action. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

interpretation of statute or regulation 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. Except as expressly

MODIFIED to (1) reflect the proper analysis for determining whether a hostile

work environment constitutes a personnel action under 5 U.S.C. § 2302(a)(2)(A),

and (2) find that two of the appellant’s disclosures regarding the National

Computing Center (NCC) and the National Support Center (NSC) were protected

disclosures under 5 U.S.C. § 2302(b)(8), we AFFIRM the initial decision.

BACKGROUND

The appellant was an ES-0342 Associate Commissioner for the agency’s

Office of Facilities and Supply Management (OFSM). Initial Appeal File (IAF),

Tab 1 at 2, Tab 12 at 39. On May 21, 2013, the appellant was notified by the

Deputy Regional Commissioner that he would be investigated due to equal

employment opportunity (EEO) related complaints against him. IAF, Tab 18

at 21. The letter also informed him that because “[t]he [Equal Employment

Opportunity Commission (EEOC)] also requires the agency, under certain

circumstances, to take temporary measures to separate the parties during the

investigation,” he would be detailed to the Assistant Associate Commissioner

position in the agency’s Office of Central Operations. Id. On July 31, 2014, he

retired from the agency. IAF, Tab 12 at 39.

Thereafter, the appellant filed an individual right of action (IRA) appeal

with the Board in which he alleged that, in retaliation for his protected

whistleblowing, the agency removed his supervisory duties, detailed him to a

position with fewer responsibilities, and ultimately forced him to retire. 2 IAF,

Tab 1 at 143-45, Tab 6 at 15-16, Tab 88 at 13. The administrative judge found

that the Board had jurisdiction over the appeal and granted a hearing on the

merits of the appeal. IAF, Tab 28.

Following a 4-day hearing that was conducted by video-conference, the

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

corrective action. IAF, Tab 106, Initial Decision (ID). The administrative judge

first found that the appellant failed to establish a prima facie case of

whistleblower reprisal. In that regard, he found that the appellant raised six

disclosures in both his Office of Special Counsel (OSC) complaint and his Board

appeal. ID at 3. The first three disclosures concerned the agency’s decision to

replace the existing NCC with a new NSC. Id. In his fourth disclosure, the

appellant contended that the agency had awarded hundreds of millions of dollars

in poorly developed and in some cases unneeded projects, including work being

performed on the agency’s Wabash office building construction project. ID

at 3, 8. In his fifth and sixth disclosures, the appellant alleged that OFSM

The administrative judge noted that the appellant filed his Office of Special Counsel

(OSC) complaint prior to his retirement and that, in his OSC complaint, the appellant

only claimed that the agency retaliated against him by subjecting him to a hostile work

environment. IAF, Tab 106, Initial Decision at 2. Thus, the voluntariness of the

appellant’s retirement is not at issue in this appeal. In addition, we note that the

appellant’s retired status has no effect on his ability to file an IRA appeal. In

Guzman v. Office of Personnel Management, 53 F. App’x 927, 929-30 (Fed. Cir. 2002),

our reviewing court held that the Whistleblower Protection Act permits a former

employee to bring a claim “as to disclosures made, and retaliation taken, during the

period that the complainant was an employee or applicant.” The Board may follow

nonprecedential decisions by the U.S. Court of Appeals for the Federal Circuit to the

extent that we find them to be persuasive. Weed v. Social Security Administration,

113 M.S.P.R. 221, ¶ 11 (2010).

employees were not complying with the agency’s overtime and travel policies.

ID at 3.

The administrative judge found that the appellant failed to establish that he

made disclosures (1)-(4) prior to the alleged acts of retaliation. ID at 24-26. He

therefore found that these disclosures could not have been contributing factors in

the agency’s alleged actions. ID at 26. In addition, the administrative judge

found that disclosures (2) and (4) did not constitute protected disclosures. ID

at 26-28. Regarding disclosures (5) and (6), the administrative judge found that

the appellant failed to establish that these disclosures were a contributing factor

in a personnel action. ID at 28-29.

As to the alleged personnel actions, the administrative judge found that the

appellant was raising a claim that he had been subjected to a hostile work

environment. ID at 13. He found that the agency investigation into the

appellant’s purported EEO violation and the appellant’s detail to a position with

allegedly fewer duties may have contributed to a hostile work environment. Id.

However, he determined that the appellant’s hostile work environment claim was

not actionable because the appellant failed to establish contributing factor. Id.

Because the administrative judge determined that the appellant did not meet his

burden of proving that any of the alleged protected disclosures were a

contributing factor in any of the personnel actions at issue, he found that there

was no need to address whether the agency could have shown by clear and

convincing evidence that it would have taken any of these actions in the absence

of the alleged protected disclosures. ID at 30-31.

The appellant filed a petition for review in which he alleged that the

administrative judge erred in finding that he did not make protected disclosures

prior to the agency’s personnel actions, failed to consider key evidence in the

record, failed to make factual and credibility determinations, and did not apply

the perceived whistleblower doctrine to the appeal. Petition for Review (PFR)

File, Tab 7. The agency has filed a response to the appellant’s petition for

review, PFR File, Tab 9, and the appellant has filed a reply to the agency’s

response, PFR File, Tab 10.

DISCUSSION OF ARGUMENTS ON REVIEW

After establishing the Board’s jurisdiction in an IRA appeal, as the

administrative judge found the appellant did in this case, an appellant must

establish a prima facie case of whistleblower retaliation by proving by

preponderant evidence that he made a protected disclosure that was a contributing

factor in a personnel action taken against him. 3 5 U.S.C. § 1221(e)(1); Lu v.

Department of Homeland Security, 122 M.S.P.R. 335, ¶ 7 (2015). If the appellant

makes out a prima facie case, then the agency is given an opportunity to prove by

clear and convincing evidence that it would have taken the same personnel action

in the absence of the protected disclosure. 5 U.S.C. § 1221(e)(1)-(2); Lu,

122 M.S.P.R. 335, ¶ 7.

The initial decision is modified to reflect the proper analysis for a hostile work

environment personnel action.

As noted above, the administrative judge considered whether the appellant

was subjected to a hostile work environment personnel action. The

administrative judge considered the following actions when assessing the

appellant’s hostile work environment claim: (1) relieving the appellant of his

duties as the Associate Commissioner for OFSM on May 21, 2013, after which he

was detailed to positions with few meaningful job duties and responsibilities;

(2) conducting an investigation of the appellant for purportedly creating a hostile

work environment for his subordinates; (3) issuing the appellant a far lower

performance rating than warranted for appraisal period October 1, 2012, to May

21, 2013; and (4) having negative information about the appellant leaked by

senior agency management, which resulted in him being denied a position with

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

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

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

two other Federal agencies. ID at 13-14. The administrative judge found that the

appellant’s fiscal year 2012-13 performance appraisal did not rise to the level of

actionable harassment because the appellant received an “Excellent” rating. ID

at 30. In addition, the administrative judge found that record evidence

contradicted the appellant’s claims about why he failed to secure other Federal

positions. Id. The administrative judge found that, accordingly, the appellant

failed to prove that the agency made negative remarks about him that led to his

inability to secure employment with other agencies. Id.

First, we find that, notwithstanding the characterization of the personnel

actions raised by the appellant as constituting a hostile work environment claim,

the matters he raised also constitute independent personnel actions under the

Whistleblower Protection Act (WPA). See 5 U.S.C. § 2302(a)(2)(A). As to the

appellant’s hostile work environment claim, the administrative judge correctly

noted that the Board has stated that a hostile work environment itself may

constitute a covered personnel action under the WPA. Savage v. Department of

the Army, 122 M.S.P.R. 612, ¶ 23 (2015), overruled in part by Pridgen v. Office

of Management and Budget, 2022 MSPB 31, ¶¶ 23-25; ID at 29. The

administrative judge, however, did not have the benefit of the Board’s decision in

Skarada v. Department of Veterans Affairs, 2022 MSPB 17, when issuing the

decision in this case. In Skarada, the Board clarified that allegations of a hostile

work environment may establish a personnel action under the WPA only if they

meet the statutory criteria, i.e., constitute a significant change in duties,

responsibilities, or working conditions. 5 U.S.C. § 2302(a)(2)(A)(xii); Skarada,

2022 MSPB 17, ¶ 16. Although the “significant change” personnel action should

be interpreted broadly to include harassment and discrimination that could have a

chilling effect on whistleblowing or otherwise undermine the merit system, only

agency actions that, individually or collectively, have practical and significant

effects on the overall nature and quality of an employee’s working conditions,

duties, or responsibilities will be found to constitute a personnel action covered

by section 2302(a)(2)(A)(xii). Id.

Thus, we modify the initial decision to reflect the proper analysis for

determining whether a hostile work environment constitutes a personnel action

under section 2302(a)(2)(A). However, we need not decide whether the agency

actions listed above, considered either individually or collectively, constituted a

hostile work environment under Skarada for the reasons set forth below. Nor do

we need to address them as independent personnel actions under 5 U.S.C.

§ 2302(a)(2)(A).

The appellant established that disclosures (1) and (3) concerning the NCC and

NSC were protected.

Disclosure (1) was that “[t]he case to replace the existing [NCC] was

‘overstated’ and relied too heavily on the premise that the NCC was in ‘terrible

condition’ and could no longer support the agency mission.” ID at 3; IAF, Tab 88

at 5-6. Disclosure (3) was that “[r]etention of the existing NCC building was

absolutely essential to house the 925 employees who must remain when the data

center function was relocated.” ID at 3; IAF, Tab 88 at 5-6.

A protected disclosure is a disclosure of information that an appellant

reasonably believes evidences a violation of any law, rule, or regulation, gross

mismanagement, a gross waste of funds, an abuse of authority, or a substantial

and specific danger to public health or safety. 5 U.S.C. § 2302(b)(8)(A);

Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 12 (2014). A reasonable

belief exists if 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

listed in section 2302(b)(8)(A). Linder, 122 M.S.P.R. 14, ¶ 12. To establish that

he made a protected disclosure, the appellant need not prove that the matter

disclosed actually established one of the types of wrongdoing listed under section

2302(b)(8)(A); rather, he must show that the matter disclosed was one that a

reasonable person in his position would have believed evidenced any of the

situations specified in 5 U.S.C. § 2302(b)(8). Chavez v. Department of Veterans

Affairs, 120 M.S.P.R. 285, ¶ 18 (2013).

Regarding disclosure (1), the appellant stated that he disclosed to agency

officials that the agency had falsely reported to Congress that the NCC was in

terrible condition. IAF, Tab 1 at 140. Concerning disclosure (3), the appellant

stated that he also disclosed that the agency had misled Congress by stating that

the NCC would be demolished when it could not be because there was no space to

relocate 925 employees. Id. The administrative judge found that a person in the

appellant’s position may have reached a similar conclusion after having reviewed

the Congressional testimony and other information concerning the condition of

the NCC and the need for the NSC. ID at 24. The administrative judge, however,

found that these disclosures were not protected because the appellant did not

make them prior to being subjected to the alleged acts of retaliation. ID at 24-25.

However, the timing of the disclosures is relevant to the issue of whether the

appellant established contributing factor with regard to these disclosures and not

to whether they constitute protected disclosures. We find that these disclosures

were in fact protected because the appellant had a reasonable belief that they

evidenced a violation of law. See Berkowitz v. Department of the Treasury,

94 M.S.P.R. 658, ¶ 10 (2003) (finding the appellant’s statement that the agency

may have misled Congress to constitute a nonfrivolous allegation of a violation of

18 U.S.C § 1001). We therefore modify the initial decision to reflect that

disclosures (1) and (3) constituted protected disclosures. 4

We discern no error in the administrative judge’s finding that disclosures (5) and (6),

which concerned the appellant’s reports that some of his subordinate employees were

not complying with agency policy to obtain pre-approval to work overtime and go on

official travel, were protected under 5 U.S.C. § 2302(b)(8) as a disclosure of a

purported violation of law, rule, or regulation. ID at 3, 27-28; IAF, Tab 88 at 5-6. In

this regard, we recognize that, in 2012, Congress passed the Whistleblower Protection

Enhancement Act, Pub. L. No. 112-199, 126 Stat. 1465, (WPEA) amending the WPA to,

in part, reiterate that the Act protects “any disclosure” of conduct described in 5 U.S.C.

§ 2302(b)(8), including any such disclosure made in the normal course of an employee’s

The administrative judge correctly found that disclosures (2) and (4) were not

protected.

Disclosure (2) was that “[t]he rationale and references used to justify

relocating the new [NSC] (data center) 35 miles from the existing campus were

very ‘broadly’ interpreted at best and not applicable at all in [the appellant’s]

opinion.” ID at 3; IAF, Tab 88 at 5-6. Disclosure (4) was that “[i]n working with

[the General Services Administration], [Social Security Administration (SSA)]

staff and reviewing historical files, [he] had discovered that SSA has awarded

hundreds of millions of dollars in poorly developed and in many cases, unneeded

projects.” ID at 3; IAF, Tab 88 at 5-6.

As to disclosure (2) the administrative judge found that no reasonable

person in the appellant’s position would have believed that this disclosure

evidenced 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 or safety. ID at 27. Accordingly, the administrative judge found

duties. 5 U.S.C. § 2302(f)(2) (2013); S. Rep. No. 112-155 at 5. The Board later found

that the WPEA amendments to 5 U.S.C. § 2302(f)(2) required a heightened evidentiary

burden for appellants who made disclosures in the normal course of their

duties. Benton-Flores v. Department of Defense, 121 M.S.P.R. 428, ¶ 15 (2014). The

Board found that such disclosures provide a basis for a (b)(8) claim only if the

employee proves the agency took the personnel action “with an improper retaliatory

motive.” Id. (citing S. Rep. No. 112-155, 5-6, reprinted in 2012 U.S.C.C.A.N. 589,

593-94). However, in December 2017, Congress passed and the President signed the

National Defense Authorization Act for Fiscal Year 2018 (NDAA), which amended

5 U.S.C. § 2302(f)(2) to provide that the higher burden of proof applies only to

disclosures “made during the normal course of duties of an employee, the principal job

function of whom is to regularly investigate and disclose wrongdoing.” Pub. L. No.

115-91, § 1097(c)(1)(B)(ii), 131 Stat. 1283, 1618 (2017). While the events relevant to

this appeal took place before the NDAA’s enactment, the Board has since determined

that the new statutory provision applies retroactively. Salazar v. Department of

Veterans Affairs, 2022 MSPB 42, ¶ 21. In this case, although the administrative judge

found that the record revealed that the Deputy Commissioner for Budget, Finance, and

Management instructed the appellant to rein in overtime costs in OFSM soon after

beginning his position, there is nothing in the record to suggest that the appellant’s

principal job function was to regularly investigate and disclose wrongdoing. ID at 2,

28. Therefore, the appellant’s disclosures were not subject to a higher burden of proof

under 5 U.S.C. § 2302(f), even if they were made during the normal course of his

duties. See Salazar, 2022 MSPB 42, ¶ 22.

that the disclosure was not protected. Id. The appellant has not provided a basis

for disturbing this well-reasoned finding on review.

As to disclosure (4), the appellant contended that he disclosed that

$14,000,000 in project change orders for construction on the agency’s Wabash

Office Building was approved by a GS-14 project manager without being

authorized by senior management. The appellant argued that many of these

changes were not needed. The administrative judge determined that the appellant

failed to prove the existence of these allegedly unauthorized change orders. ID

at 27. Instead, the agency had introduced the results of an Office of Inspector

General investigation which found that the project manager who ordered them did

so with knowledge of his supervisor and other agency officials. ID at 27. The

administrative judge concluded that no reasonable person would have found that

these improvements violated a law, rule, or regulation, or constituted waste,

fraud, and abuse; accordingly, he found that the appellant failed to establish that

disclosure (4) was protected. ID at 27-28. The appellant again has not provided a

basis for disturbing this well-reasoned finding on review.

As discussed below, even if we were to find that these disclosures were

protected, the administrative judge correctly found that the appellant failed to

show that these disclosures, along with disclosures (1) and (3), were contributing

factors in the personnel actions raised by the appellant.

The appellant failed to establish that disclosures (1)-(4) were a contributing factor

in a personnel action.

The term “contributing factor” means any disclosure that affects an

agency’s decision to threaten, propose, take, or not take a personnel action

affecting the individual making the disclosure. Usharauli v. Department of

Health and Human Services, 116 M.S.P.R. 383, ¶ 31 (2011). The most common

way of proving the contributing factor element is the knowledge/timing test.

Wadhwa v. Department of Veterans Affairs, 110 M.S.P.R. 615, ¶ 12, aff’d,

353 F. App’x 434 (Fed. Cir. 2009). Under that test, an appellant can prove the

contributing factor element through evidence that the official taking the personnel

action knew of the whistleblowing disclosure and took the personnel action

within a period of time such that a reasonable person could conclude that the

disclosure was a contributing factor in the personnel action. Id. To satisfy the

test, the appellant need demonstrate only that the fact of, not necessarily the

content of, the protected disclosure was one of the factors that tended to affect the

personnel action in any way. Mastrullo v. Department of Labor, 123 M.S.P.R.

110, ¶ 18 (2015).

The administrative judge found that the appellant failed to establish that he

made disclosures (1)-(4) prior to the alleged acts of retaliation. ID at 24-26.

Following comprehensive credibility determinations, he found that the first time

the appellant raised these concerns was in a November 2013 administrative

grievance. ID at 21; IAF, Tab 1 at 243-64. As previously stated, the agency

notified the appellant on May 21, 2013, that he would be investigated and

detailed out of his position due to EEO-related complaints against him. IAF,

Tab 18 at 21. The administrative judge therefore found that the appellant failed

to establish contributing factor regarding disclosures (1)-(4). ID at 26.

The appellant contends on review that the administrative judge erred in

finding that he did not make disclosures (1)-(4) prior to the alleged retaliatory

acts. PFR File, Tab 7 at 16-24. The appellant argues that many factors

undermined the administrative judge’s ability to make sound credibility

determinations, including the fact that the administrative judge did not appear

live but on video at the hearing and that 14 months passed between closing

arguments and the issuance of the initial decision. Id. at 30-31.

The appellant has failed to provide a basis for overturning the

administrative judge’s well-reasoned credibility findings regarding when the

appellant made disclosures (1)-(4). The Board will defer to the credibility

determinations of an administrative judge when they are based, explicitly or

implicitly, upon observing the demeanor of witnesses testifying at a hearing

because the administrative judge is in the best position to observe the demeanor

of the witnesses and determine which witnesses were testifying credibly.

Haebe v. Department of Justice, 288 F.3d 1288, 1300-01 (Fed. Cir. 2002). Here,

the administrative judge considered the testimonies of relevant agency officials

and, after applying the factors set forth in Hillen v. Department of the Army,

35 M.S.P.R. 453, 458 (1987), found their testimonies to be more credible and

consistent with the record than that provided by the appellant. ID at 25. The

administrative judge noted that the appellant was prolific in his communications

with senior management but that he did not mention his concerns with the NCC,

NSC, and the Wabash construction project until November 22, 2013, when he

submitted his administrative grievance. ID at 26. The appellant has failed to

provide a basis for disturbing the administrative judge’s well-reasoned credibility

findings. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997)

(indicting that the Board will defer to an administrative judge’s credibility

findings and will not grant a petition for review based on a party’s mere

disagreement with those findings). We therefore affirm the administrative

judge’s finding that the appellant failed to establish that disclosures (1)-(4) were

a contributing factor in a personnel action. 5 See Johnson v. Department of

Justice, 104 M.S.P.R. 624, ¶ 26 (2007) (determining that disclosures made after

the personnel actions at issue cannot have been contributing factors in those

personnel actions).

The appellant failed to exhaust his perceived whistleblower claim.

On review, the appellant contends that the administrative judge failed to

apply the perceived whistleblower doctrine to the appeal. PFR File, Tab 7

at 29-30. The appellant contends that, even if the evidence reflects that he did

The appellant does not challenge on review, and we discern to reason to disturb, the

administrative judge’s conclusion that the appellant failed to establish that disclosures

(5) and (6) were a contributing factor in any alleged personnel action. ID at 27-29; see

5 C.F.R. § 1201.115 (stating that the Board normally will consider only issues raised in

a timely filed petition or cross petition for review).

not make the disclosures he claims to have made, the administrative judge should

have considered whether the agency perceived him to have made those

disclosures. Id. at 30. To establish that the agency retaliated against him based

on its perception that he was a whistleblower, the appellant must show that he

exhausted his administrative remedies before OSC, that the agency perceived him

as a whistleblower, and that the agency’s decision was a contributing factor in its

decision to take or not take the personnel action at issue. Rumsey v. Department

of Justice, 120 M.S.P.R. 259, ¶ 8 (2013). Here, the appellant has not shown that

he exhausted his remedy with OSC on this issue. Thus, we find that the Board

lacks jurisdiction over this claim. See El v. Department of Commerce,

123 M.S.P.R. 76, ¶ 12 (2015) (finding that the Board lacked jurisdiction over the

appellant’s claim that he was perceived as a whistleblower when the appellant

failed to show that he exhausted his administrative remedies regarding this

claim), aff’d, 663 F. App’x 921 (Fed. Cir. 2016). 6

The appellant’s remaining arguments do not provide a basis for granting review.

The appellant alleges that the initial decision should be reversed because

the administrative judge failed to consider relevant record evidence. PFR, Tab 7

Although the administrative judge did not provide the appellant with explicit notice on

how to establish jurisdiction over an IRA appeal as a perceived whistleblower, the

Board has held that it is not necessary for an administrative judge to provide such

notice in every IRA appeal. King v. Department of the Army, 116 M.S.P.R. 689, ¶ 11

(2011). The appellant did not raise his perceived whistleblower claim in his initial

appeal. IAF, Tab 1. In a hearing order, the administrative judge ordered the parties to

submit prehearing submissions containing statements of all the issues. IAF, Tab 49.

The appellant did not raise his perceived whistleblower claim in his prehearing

submission. IAF, Tab 88. The agency argues, and the appellant does not dispute, that

he raised this claim for the first time in his closing argument. PFR File, Tab 9 at 27.

Under the circumstances of this case, we find that the administrative judge did not err

by not providing the appellant with jurisdictional notice on his perceived whistleblower

claim. See 5 C.F.R. § 1201.24(b) (an appellant may not raise a new claim or defense

after the end of the conference held to define the issues in the case, except for good

cause shown); cf. Buie v. Office of Personnel Management, 94 M.S.P.R. 595, ¶ 18

(2003) (finding that the appellant abandoned her age discrimination claim, when it was

not listed on the prehearing conference summary and the appellant failed to object to

that summary), aff’d, 386 F.3d 1127 (Fed. Cir. 2004).

at 25-26. In particular, the appellant alleges that the administrative judge did not

address a letter sent to the appellant by the Deputy Regional Commissioner

advising the appellant that the investigation was closed. Id.; IAF, Tab 13 at 29.

In the letter, the Deputy Regional Commissioner informed the appellant that he

had reviewed the results of the investigation and concluded that the appellant “did

not always conduct [himself] in a manner consistent with the leadership

expectations of someone in [his] position.” IAF, Tab 13 at 29. According to the

appellant, his first-line supervisor “manipulated” the Deputy Regional

Commissioner’s “letter to support taking additional action against [him].” Id.

at 5. The appellant argued that, accordingly, the letter supported his argument

that the investigation was not truly independent. Id.

The administrative judge, however, referenced the Deputy Regional

Commissioner’s letter in the initial decision when discussing the investigation.

ID at 17. Even if the administrative judge failed to adequately analyze the letter

as the appellant asserts, the appellant has failed to show how any such alleged

error prejudiced his substantive rights. See 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 reversing an

initial decision). In relevant part, the administrative judge acknowledged that the

agency’s decision to investigate him “may have been [an] action[] that a

reasonable person would find to be both subjectively and objectively offensive.”

ID at 30. Thus, the administrative judge considered that the investigation may

have constituted retaliation for the appellant’s whistleblowing but still found that

the appellant failed to establish a prima facie case of whistleblower retaliation.

Based on the foregoing, we find that the appellant has failed to provide a

basis for disturbing the initial decision denying him corrective action in his IRA

appeal.

NOTICE OF APPEAL RIGHTS 7

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

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:

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.

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. 8 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).

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