Opinion

Michael Mallonee v. Department of the Interior

Court: Merit Systems Protection Board
Filed: May 31, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.2%

stating that allegations of retaliation for exercising a Title VII right do not fall within the scope of section 2302(b)(8)

How later courts described this case

stating that allegations of retaliation for exercising a Title VII right do not fall within the scope of section 2302(b)(8)

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MICHAEL MALLONEE, DOCKET NUMBER

Appellant, DE-1221-16-0063-W-1

DEPARTMENT OF THE INTERIOR, DATE: May 31, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Michael Mallonee , Conyers, Georgia, pro se.

Glenn Himebaugh , Albuquerque, New Mexico, for the agency.

Kevin Mack , Sacramento, California, for the agency.

Teresa M. Garrity , Esquire, Bloomington, Minnesota, for the agency.

Rachel Wieghaus , Washington, D.C., 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 in this individual right of action (IRA)

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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

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

supplement the administrative judge’s findings concerning the appellant’s

protected disclosures and contributing factor and to VACATE the administrative

judge’s alternative finding that the agency proved by clear and convincing

evidence that it would have taken the same personnel actions against the appellant

absent his protected disclosures, we AFFIRM the initial decision.

BACKGROUND

The appellant was formerly employed by the agency’s Bureau of Indian

Education (BIE) as an Assistant Principal at the Cheyenne Eagle Butte School

(CEBS), an elementary school located on the Cheyenne River Indian Reservation

in Eagle Butte, South Dakota, until he was terminated during his probationary

period, effective May 4, 2012. Initial Appeal File (IAF) Tab 1 at 1, Tab 11 at 11,

Tab 19 at 11. On November 4, 2015, he filed an IRA appeal alleging that, in

reprisal for various protected disclosures he made, the agency: (1) subjected him

to a hostile work environment; (2) threatened to charge him as absent without

leave (AWOL) for failure to provide acceptable medical documentation;

(3) terminated his employment; and (4) failed to select him for numerous

positions. IAF, Tab 1 at 13-15, Tab 9.

After holding the appellant’s requested hearing, the administrative judge

issued an initial decision denying the appellant’s request for corrective action.

IAF, Tab 180, Initial Decision (ID). The administrative judge found that the

appellant established by preponderant evidence that he made the following

protected disclosures to the agency’s Office of Inspector General (OIG) on

March 28, 2012, and to the BIE Associate Deputy Director on or about April 14,

2012: (1) he reported unsafe building conditions at CEBS to the Occupational

Safety and Health Administration on February 29, 2012; and (2) he disclosed that

an acting kindergarten assistant principal at CEBS lacked necessary certification

to an educational consulting firm on or about February 29, 2012. ID at 5-6,

17-20.

However, the administrative judge found that the appellant failed to

establish that his protected disclosures were a contributing factor in any of the

agency’s personnel actions. ID at 22-26. The administrative judge found that the

appellant’s protected disclosures all occurred after the February 21, 2012

threatened AWOL and, thus, could not have been a contributing factor in the

agency’s action. ID at 23. Regarding the appellant’s termination, the

administrative judge found that the appellant failed to present any evidence that

the Principal who took the action was aware of his protected disclosures. ID

at 23-25. Similarly, regarding the appellant’s nonselections, the administrative

judge found that he failed to prove that the individuals who made the decisions

not to select him were aware of his prior protected disclosures. ID at 25-26.

Alternatively, the administrative judge found that the agency proved by clear and

convincing evidence that the agency would have taken the same personnel actions

against the appellant absent his protected disclosures. ID at 26-30.

The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 3. The agency has opposed the appellant’s petition, and the appellant

has filed a reply. PFR File, Tabs 5-6.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge properly found that the appellant failed to prove that his

alleged disclosures that he was harassed amounted to protected disclosures.

To prove that a disclosure is protected, an appellant must prove by

preponderant evidence 2 that a disinterested observer with knowledge of the

essential facts known to and readily ascertainable by him could reasonably

conclude that the matter disclosed evidenced 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); Bradley v. Department of Homeland Security, 123 M.S.P.R. 547,

¶ 7 (2016). 3 An abuse of authority occurs when there is an arbitrary or capricious

exercise of power by a Federal official or employee that adversely affects the

rights of any person or results in personal gain or advantage to himself or

preferred other persons. Herman v. Department of Justice, 115 M.S.P.R. 386,

¶ 11 (2011). Harassing or intimidating employees may constitute an abuse of

authority. See, e.g., Herman, 115 M.S.P.R. 386, ¶ 11; Swanson v. General

Services Administration, 110 M.S.P.R. 278, 285 n.* (2008); Pasley v. Department

of the Treasury, 109 M.S.P.R. 105, ¶ 18 (2008).

The administrative judge characterized the appellant’s claims concerning

harassment as pertaining to three different alleged disclosures: (1) the appellant

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

Most of the alleged retaliatory events at issue in this appeal occurred before the

December 27, 2012 effective date of the Whistleblower Protection Enhancement Act

(WPEA), Pub. L. No. 112-199, 126 Stat 1465, but some occurred after the effective

date. However, our analysis concerning whether the appellant made a protected

disclosure under 5 U.S.C. § 2302(b)(8) is the same under both pre- and post-WPEA law.

reported that the Principal abused her authority when she subjected him to

harassment while he was on extended medical leave by repeatedly seeking

medical documentation from him; (2) he reported that the Principal and the

Acting Kindergarten Assistant Principal abused their authority generally by

harassing him; and (3) he reported that the Principal and the Acting Kindergarten

Assistant Principal’s harassment was based on his disability. ID at 10-17.

First, regarding the appellant’s alleged disclosure that the Principal abused

her authority and/or harassed him by seeking medical documentation, the

administrative judge found that the appellant’s testimony on this issue was vague,

unconvincing, and improbable and that a reasonable person would not have

considered the Principal’s treatment to be harassing behavior that could be

deemed an abuse of authority. ID at 10-12. The appellant does not dispute this

finding on review, and we discern no error in the administrative judge’s analysis.

Second, regarding the appellant’s alleged disclosure that the Principal and

the Acting Kindergarten Assistant Principal harassed him generally, the appellant

contends that he reported to an educational consulting firm on February 29, 2012,

that the Acting Kindergarten Assistant Principal created a hostile work

environment and reported to the BIE Associate Deputy Director on April 14,

2012, that the Principal bullied him and created a hostile work environment. ID

at 5-6; IAF, Tab 9 at 137. It is unclear from the record what details, if any, the

appellant reported to the firm or the Deputy Director concerning his alleged

hostile work environment or bullying claims. Indeed, the administrative judge

found that the appellant’s testimony on this issue was vague, unconvincing, and

improbable. ID at 15. Even assuming that the appellant reported all of the issues

discussed in the initial decision, the administrative judge found that a reasonable

person in the appellant’s position would not have concluded that the Principal or

the Acting Kindergarten Assistant Principal abused their authority by creating a

hostile work environment. ID at 12-16.

In particular, the administrative judge found that the appellant testified that

his working relationship with the Principal prior to his extended leave was

cordial. ID at 12. She found that the harassment the appellant identified merely

amounted to his perceived lack of responsiveness on the part of the Principal to

his complaints about his working relationship with the Acting Kindergarten

Assistant Principal and his other work -related concerns. ID at 12-13. Regarding

the Acting Kindergarten Assistant Principal, the administrative judge found that

the appellant’s claim of harassment stemmed from his difficulty adapting to the

work environment, which required him to share responsibilities with the Acting

Kindergarten Assistant Principal with whom he disagreed over day-to-day

matters, such as staff training and assignments and the proper handling of

individual education plans for special education students. ID at 14-15. She

further found that the appellant and the Acting Kindergarten Assistant Principal

did not have a good working relationship, and each complained to the Principal

about the other’s alleged inappropriate behavior. ID at 15. We discern no error

in the administrative judge’s conclusion that a reasonable person would not have

considered the Principal’s or the Acting Kindergarten Assistant Principal’s

behavior to amount to an abuse of authority. See Carr v. Department of Defense,

61 M.S.P.R. 172, 181 (1994) (finding that the appellant’s broad and imprecise

assertions that he was being harassed and subjected to a stressful work

environment did not constitute a disclosure of an abuse of authority).

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

finding that his report that the Principal and the Acting Kindergarten Assistant

Principal subjected him to a hostile work environment did not amount to a

protected disclosure, and he sets forth various facts that he appears to contend

support his belief that he was subjected to a hostile work environment. PFR File,

Tab 3 at 16. For example, he makes various arguments about his role at CEBS

and asserts that he expected to report to work overseeing the entire K-2 program

as discussed in his interview and that the Principal abused her authority by

splitting those duties between him and the Acting Kindergarten Assistant

Principal, whom he contends was not qualified to oversee the kindergarten class.

Id. at 16-17. To the extent the appellant is reiterating his argument that the

Acting Kindergarten Assistant Principal was improperly serving in her role

without proper certification, the administrative judge considered this as a separate

disclosure and found that the appellant made a protected disclosure that the

Acting Kindergarten Assistant Principal at CEBS lacked necessary certification.

ID at 18-20.

Third, regarding the appellant’s claim that the Principal and the Acting

Kindergarten Assistant Principal’s harassment was due to his disability, the

administrative judge found that the appellant failed to present credible evidence

that he was subjected to a hostile work environment based on discrimination and,

thus, failed to prove that he made a protected disclosure based on a violation of

Title VII of the Civil Rights Act of 1964. ID at 17. It is unclear from the record

whether the appellant ever reported to anyone that he believed the alleged

harassment was based on his disability. To the extent he is alleging as much,

however, such a claim would not amount to a protected disclosure because

disclosures that are limited to equal employment opportunity matters that are

covered under 5 U.S.C. § 2302(b)(1) and (b)(9) are excluded from coverage under

section 2302(b)(8). See McCray v. Department of the Army, 2023 MSPB 10, ¶ 22

(finding that a disclosure of disability discrimination or other practice made

unlawful by the Rehabilitation Act is not protected under 5 U.S.C. § 2302(b)(8));

see also Young v. Merit Systems Protection Board, 961 F.3d 1323, 1329-30 (Fed.

Cir. 2020) (stating that allegations of retaliation for exercising a Title VII right

do not fall within the scope of section 2302(b)(8)). Thus, we modify the initial

decision to vacate the administrative judge’s findings on this issue and instead

find that the appellant failed to prove that he made a protected disclosure for the

reasons set forth above.

The administrative judge properly found that the appellant failed to prove that

any of his protected disclosures were a contributing factor in the agency’s

personnel actions.

The administrative judge found that the appellant proved by preponderant

evidence that he was subjected to personnel actions when he was: (1) threatened

with being placed in an AWOL status; (2) terminated from his employment; and

(3) not selected for BIE contract education personnel positions. ID at 21-22.

Regarding the appellant’s claim that he was subjected to a hostile work

environment, the administrative judge found that the appellant’s allegations, as

detailed above, did not amount to a significant change in job duties,

responsibilities, or working conditions, and thus, they did not amount to a

personnel action. ID at 12-16. The appellant does not challenge this finding on

review, and we discern no error in the administrative judge’s finding to the extent

that the appellant’s allegations fail to establish that the agency’s actions,

individually or collectively, had practical and significant effects on the overall

nature and quality of his working conditions, duties, or responsibilities. See

Skarada v. Department of Veterans Affairs, 2022 MSPB 17, ¶¶ 16, 26-29 (finding

that the appellant failed to prove by preponderant evidence that his allegations of

a hostile work environment amounted to a significant change in duties when he

alleged that his supervisor failed to communicate with him, avoided him or

walked away from him, was unresponsive to his requests for guidance, and yelled

at him and excluded him from meetings).

Regarding the threatened AWOL, the administrative judge found that the

appellant failed to prove that his protected disclosures were a contributing factor

in the agency’s decision because the threatened AWOL occurred prior to his

protected disclosures. ID at 23. Regarding the appellant’s termination and

nonselections, the administrative judge applied the knowledge/timing test and

found that the appellant failed to present any evidence that the individuals who

decided to terminate his employment and not to select him were aware of his prior

protected disclosures. ID at 23-26. However, the knowledge/timing test is not

the only way an appellant can establish that his protected disclosures were a

contributing factor in the agency’s decision to take a personnel action against

him. It is the agency, not its individual officials, from whom an appellant seeks

corrective action, and actual knowledge by a single official is not dispositive.

See Dorney v. Department of the Army, 117 M.S.P.R. 480, ¶ 12 (2012).

The Board has held that, if an administrative judge determines that an

appellant has failed to satisfy the knowledge/timing test, she shall 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 at the proposing or deciding officials, and whether they had a

desire or motive to retaliate against the appellant. Id., ¶ 15; Powers v.

Department of the Navy, 69 M.S.P.R. 150, 156 (1995). We note that these factors

are a nonexhaustive list of the evidence that may be relevant to a contributing

factor determination. See Dorney, 117 M.S.P.R. 480, ¶ 15. Because the

administrative judge did not address the alternative to the knowledge/timing test

set forth in Dorney, we modify the initial decision to do so.

Regarding the strength of the evidence, we find that the agency had strong

evidence for its termination decision. The record reflects that the Principal, who

made the decision to terminate the appellant due to performance issues, took steps

to start the termination process with human resources as of at least January 11,

2012, prior to any of the appellant’s alleged disclosures. IAF, Tab 81 at 10.

Next, we find that the appellant’s disclosures were directed, at least in part, at the

Principal who chose to have the Acting Assistant Kindergarten Principal assist

the appellant and who would presumably have been responsible for addressing the

various safety issues at the school. IAF, Tab 81 at 29. However, regarding the

alleged safety violations, the administrative judge credited the Principal’s

testimony that numerous safety issues were reported annually and were widely

known but that there was simply not enough funding for larger repair projects.

ID at 17-18. Additionally, regarding the Acting Kindergarten Assistant

Principal’s qualifications, the administrative judge found that agency policy

permitted her to be detailed into the position even without all of the required

qualifications. ID at 19. Finally, as discussed above, the administrative judge

found that the Principal did not have knowledge of the appellant’s disclosures,

and thus, we find she could not have had a motive to retaliate. Geyer v.

Department of Justice, 70 M.S.P.R. 682, 693 (1996) (observing that disclosures

of which a deciding official has neither knowledge nor constructive knowledge

cannot contribute toward any retaliatory motive on his part), aff’d per curiam,

116 F.3d 1497 (Fed. Cir. 1997) (Table).

Regarding the appellant’s claims that, following his termination, he was not

selected for various positions, the appellant has not clearly identified the

positions to which he is referring. 4 Before the Office of Special Counsel, he

alleged that he had applied to at least 12 positions but received no offers. IAF,

Tab 2 at 3-4. He also alleged in his Board pleadings and testimony that he

applied for over 650 positions in community settings across the country. IAF,

Tab 83 at 47, Tab 177 at 18. However, the appellant only identified two specific

On review, the appellant argues that the administrative judge erred in failing to

address all of his nonselection claims. PFR File, Tab 3 at 21. However, he does not

identify any specific nonselections that the administrative judge failed to consider, but

rather, he asks that the Board review the hiring process for all BIA/BIE positions for

which he applied from 2012 to 2017. PFR File, Tab 3 at 22. However, in an IRA

appeal, the Board’s jurisdiction is limited to adjudicating the whistleblower allegations.

See, e.g., Ramos v. Department of the Treasury, 72 M.S.P.R. 235, 240 (1996). The

appellant also argues that the administrative judge erred in finding that he failed to

exhaust his remedy with the Office of Special Counsel (OSC) concerning his claim that

he was not selected for additional positions. PFR File, Tab 3 at 22. However, even

assuming such claims were exhausted, the appellant has not provided sufficient

information to identify the relevant nonselections or to establish that his protected

disclosures were a contributing factor in the decisions not to select him. Finally, the

appellant’s argument that the agency failed to provide him with the information he

requested concerning his nonselections, PFR File, Tab 3 at 22, is unavailing. The

appellant filed a motion to compel the agency to produce certain information, but it did

not address his nonselection claims. IAF, Tab 42.

Principal and Assistant Principal positions. 5 IAF, Tab 9 at 10, 112. Indeed, the

agency requested clarification regarding the specific positions for which the

appellant alleged he was not selected. IAF, Tab 15.

The lack of clarity regarding the appellant’s nonselection claims makes the

contributing factor analysis difficult. The appellant offers virtually no evidence

regarding the strength or weaknesses of the agency’s reasons for not selecting

him for any of the positions, including the Principal and the Assistant Principal

positions. It is the appellant’s burden to establish that his protected disclosures

and/or activity were a contributing factor to a personnel action and this lack of

evidence cuts against him. The appellant argues that he was not selected for

positions due to whistleblower reprisal because he is Native American, has a

rating of 94, and the agency could not select a non-Native American candidate if

a qualified Native American candidate was available. IAF, Tab 9 at 10.

However, the appellant does not allege or offer any evidence that the agency

selected a non-Native American candidate over him for any of the positions. Nor

does he allege that he was more qualified than any individual who was selected.

ID at 29.

Regarding the remaining Dorney factors, there is no evidence that the

appellant’s protected disclosures were personally directed at any of the selecting

officials. 6 And, as noted, the administrative judge credited the testimony of the

selecting officials for the two identified positions that they were not aware of the

appellant’s disclosures. Therefore, they could not have had a motive to retaliate.

Finally, the appellant argues that the decisions not to select him were motivated

by reasons other than whistleblower reprisal. IAF, Tab 83 at 48. Specifically, he

The record also includes documents regarding various other positions. IAF, Tab 167

at 43-56, Tab 168 at 30-39, Tab 169 at 30-39.

Although the appellant alleged that the Acting Kindergarten Assistant Principal, about

whom he complained lacked proper certification, served on several committees that

interviewed him, IAF, Tab 83 at 48, the administrative judge found that the appellant

provided no evidence to support his claim and, in any event, did not provide any

evidence that this individual was aware of his protected disclosures, ID at 25 n.15.

asserts that applicants were rarely hired regardless of their qualifications because

staff who served in an acting capacity for the positions often served on the hiring

committees and routinely found no qualified applications so that they could

continue in their acting positions. Id. Such an argument fails to support his

claim that he was not selected in reprisal or his protected disclosures. Based on

the foregoing, we find that the appellant failed to prove by preponderant evidence

that his disclosures were a contributing factor in the agency’s decisions to

terminate him and not to select him for various positions.

The administrative judge properly analyzed the appellant’s claims under the

Whistleblower Protection Act (WPA), as amended by the Whistleblower

Protection Enhancement Act of 2012 (WPEA).

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

applying the provisions of the WPA instead of the WPEA. PFR File, Tab 3

at 25-26. Effective December 27, 2012, the WPEA created new Board appeal

rights in IRA appeals for employees who allege that a personnel action has been

taken as a result of a prohibited personnel practice described in 5 U.S.C.

§ 2302(b)(9)(A)-(D). Pub. L. No. 112-199, 126 Stat 1465. However, as the

administrative judge properly stated, the Board has declined to give retroactive

effect to the new appeal rights for activities protected under section 2302(b)(9).

ID at 7 n.4. Thus, she found that the Board lacks jurisdiction over the appellant’s

claims that any of the agency’s personnel actions that occurred prior to

December 27, 2012, were in retaliation for protected activity under

section 2302(b)(9). ID at 7 n.4. Except for the appellant’s nonselections, the

personnel actions at issue in this appeal all occurred prior to the WPEA’s

enactment. As to the appellant’s nonselections that occurred after the

December 27, 2012 effective date, we apply the WPEA. See Pridgen v. Office of

Management and Budget, 2022 MSPB 31, ¶¶ 50-51. To the extent the appellant is

alleging that his nonselections after December 27, 2012, constituted reprisal for

protected activity under section 2302(b)(9)(C), disclosing to the OIG that the

Acting Kindergarten Assistant Principal lacked necessary certification, as

discussed above, we find that he has not proven that such activity was a

contributing factor in his nonselections. 7

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

The appellant identifies various alleged errors in the administrative judge’s

factual findings. For example, he challenges her finding that CEBS was operated

by BIE and the Eagle Butte School District and that the Principal decided to split

the job duties of overseeing kindergarten to second grade between him and

another employee. PFR File, Tab 3 at 6-7. However, such arguments do not

provide a basis for reversal because the appellant has not explained how any of

these alleged factual errors are relevant to the dispositive issue of whether he

made a protected disclosure that was a contributing factor in the agency’s

personnel actions. See 5 C.F.R. § 1201.115 (explaining that the Board will only

grant a petition for review based on a showing that the initial decision contains

erroneous findings of fact if such factual errors are material, meaning that they

are of sufficient weight to warrant an outcome different from that of the initial

decision).

Additionally, the appellant makes various arguments concerning the

administrative judge’s finding that the agency proved by clear and convincing

evidence that it would have taken its actions absent the appellant’s protected

disclosures. For example, he contends that the administrative judge erred in

finding that agency policy authorized CEBS to temporarily place a special

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 U.S. Code. In particular, it amended 5 U.S.C. § 2302(b)(9)(C) to include

disclosing information to the Inspector General “or any other component responsible for

internal investigation or review.” 131 Stat. 1283, 1616. However, the result would be

the same under both pre- and post-NDAA law because the appellant disclosed

information to the agency’s Inspector General. We also have reviewed the other

relevant legislation enacted during the pendency of this appeal and have concluded that

it does not affect the outcome of the appeal.

education teacher in the Acting Assistant Kindergarten Principal position without

necessary credentials. PFR File, Tab 3 at 7-9, 24. He also disputes the

administrative judge’s findings regarding when the Principal made the decision to

terminate his employment and argues that the administrative judge erred in failing

to consider his arguments showing that the reasons for his termination were

unfounded. Id. at 9, 11-16. Such arguments similarly fail to show any error in

the administrative judge’s finding that the appellant failed to make a protected

disclosure that was a contributing factor in the agency’s personnel actions and,

thus, do not provide a basis for reversal.

Nonetheless, given the administrative judge’s correct finding that the

appellant failed to prove his prima facie case, it is unnecessary to determine

whether the agency proved by clear and convincing evidence that it would have

taken the same personnel actions against the appellant absent his protected

disclosures. See 5 U.S.C. § 1221(e)(2); Clarke v. Department of Veterans Affairs,

121 M.S.P.R. 154, ¶ 19 n.10 (2014) (stating that the Board may not proceed to the

clear and convincing evidence test unless it has first determined that the appellant

established his prima facie case), aff’d, 623 F. App’x 1016 (Fed. Cir. 2015).

Accordingly, we vacate the administrative judge’s finding that the agency proved

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

actions absent the appellant’s protected disclosures.

The appellant’s arguments concerning procedural error do not provide a basis for

reversal.

On review, the appellant also argues that the administrative judge

committed various procedural errors, but we conclude that none of these alleged

errors warrants reversing the initial decision. For example, the appellant argues

that he was prejudiced by the overall length of time it took to adjudicate his

appeal in that he was denied legal representation due to the cost of the extended

process. PFR File, Tab 3 at 29. However, the Board generally has found that an

appellant’s lack of representation does not provide a basis for granting review.

See, e.g., Feathers v. Office of Personnel Management, 27 M.S.P.R. 485, 487

(1985). Additionally, it appears that the appellant was initially represented by

counsel and later designated his wife as his representative. IAF, Tabs 30-31, 70,

170. Although the appellant may have been unable to afford what he considers to

be adequate representation, a claim of inadequate representation does not provide

grounds for Board review. See Wadley v. Department of the Army, 90 M.S.P.R.

148, ¶ 5 (2001); Abney v. Office of Personnel Management, 89 M.S.P.R. 305, ¶ 5

(2001), aff’d, 41 F. App’x 421 (Fed. Cir. 2002).

The appellant also contends that technological issues related to lag time,

which are not reflected on the hearing compact discs, nonetheless interfered with

the hearing. PFR File, Tab 3 at 29. He does not, however, explain the nature of

these technical difficulties or how he was prejudiced by them. See Panter v.

Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (stating that an

adjudicatory error that is not prejudicial to a party’s substantive rights provides

no basis for reversing an initial decision). He also argues that the administrative

judge directed his representative to cease referring to multiple documents in the

record, which altered her approach to questioning and limited relevant testimony,

and the administrative judge improperly limited his representative’s questions

regarding his disability, but he fails to offer any details concerning which

testimony was improperly limited or how it was prejudicial to him. PFR File,

Tab 3 at 29-30. Lastly, he argues that the administrative judge improperly denied

his proposed witnesses, but he fails to explain how their proposed testimony was

relevant or how denying such witnesses prejudiced him. Id. at 30; see Sanders v.

Social Security Administration, 114 M.S.P.R. 487, ¶ 10 (2010) (stating that, to

obtain reversal of an initial decision on the ground that the administrative judge

abused his discretion in excluding evidence, the petitioning party must show on

review that relevant evidence, which could have affected the outcome, was

disallowed).

Accordingly, we affirm the initial decision denying the appellant’s request

for corrective action.

NOTICE OF APPEAL RIGHTS 8

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).

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.

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. 9 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