Petition for Writ of Certiorari — Tomasa Gabriella Bolanos-Reynoso, Petitioner v. Department of Agriculture

Supreme Court briefApr 29, 2026

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No. ___

In the Supreme Court of the United States

TOMASA GABRIELLA BOLANOS-REYNOSO,

Petitioner,

DEPARTMENT OF AGRICULTURE,

Respondent.

___________________________________

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Federal Circuit

____________________________________

PETITION FOR WRIT OF CERTIORARI

_____________________________________

SEAN M. AASEN

ADRIAN F. SNEAD

PORTER WRIGHT MORRIS

& ARTHUR LLP

2020 K St., NW, Suite 600

Washington, D.C. 20006

PETER E. MINA

THE MINA FIRM PLLC

1717 K. Street NW

Suite 900

Washington, D.C. 20006

MOLLY GASTON*

Counsel of Record

GASTON & COONEY PLLC

1455 Pennsylvania Ave NW

Suite 400

Washington, D.C. 20004

202.657.0012

mollygaston@gastoncooney.com

*Admitted only in Virginia;

practicing law in the District of

Columbia under the supervision

of lawyer in firm who is member

of good standing of the D.C. Bar.

QUESTION PRESENTED

This case presents a question of great importance

to the prevention of waste, fraud, and abuse in the

federal government, and to whether federal civil

servants can have confidence that if they blow the

whistle on wrongdoing in the workplace, the Merit

Systems Protection Board and courts of appeals will

fairly consider all their timely-made claims and afford

them the process protections that Congress intended.

Congress enacted the Whistleblower Protection

Act to promote government integrity and efficiency by

empowering federal employees to report any

instances of waste, fraud, and abuse free of fear of

reprisal. The Act specifies two categories of protected

disclosures for which a federal employee cannot be

retaliated against: (i) “any violation of any law, rule,

or regulation” and (ii) “gross mismanagement, a gross

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

and specific danger to public health or safety.” U.S.

Code § 2302(b)(8)(A)(i)-(ii).

Petitioner, a former federal civilian employee,

made protected disclosures regarding financial

improprieties that she reasonably believed evidenced

both of these categories, but the MSPB and Federal

Circuit analyzed petitioner’s claim only under §

2302(b)(8)(i)—failing to consider her (b)(8)(ii) claim—

and ruled that she did not have a reasonable belief,

on that basis alone, to make her disclosures.

The question presented is:

Whether a federal civilian employee who makes a

timely and valid disclosure premised on both

categories enumerated in 5 U.S.C. § 2302(b)(8) is

entitled to a Merit Systems Protection Board decision

on both categories.

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT

Petitioner Tomasa Gabriella Bolanos-Reynoso was

plaintiff-appellant in all proceedings below. She is an

individual and has no parent corporation or stock

ticker symbol.

Respondent Department of Agriculture was

respondent in all proceedings below. It is an agency of

the Executive Branch and has no parent corporation

or stock ticker symbol.

RELATED PROCEEDINGS

United States Merit Systems Protection Board:

Tomasa Gabriella Bolanos-Reynoso v.

Department of Agriculture,

Nos. DC-0432-20-0011-I-6,

DC-1221-20-0317-W-5

United States Court of Appeals (Fed. Cir.)

Tomasa Gabriella Bolanos-Reynoso v.

Department of Agriculture,

No. 23-2344

III

TABLE OF CONTENTS

Opinions Below…………………………………………..1

Jurisdiction……………………………………………….1

Statutory Provisions Involved…………………………1

Statement of the Case…………………………………..1

A. Legal Background………………………………..5

B. Factual and Procedural Background………….8

Reasons for Granting the Petition…………………..12

I. The Decision Below is Wrong………………….12

II. This Case is an Ideal Vehicle

Because Petitioner’s Denial of Fair

Process is Emblematic of the Injustice

Whistleblowers Face, and the Failure

to Consider Her Claim of Gross

Mismanagement is Clear and

Straightforward…………………………………….16

III. The Question Presented

Warrants Review Because it Holds

Implications for Whistleblowers

Throughout the Federal Government…………..18

Conclusion………………………………….……………21

APPENDIX A:

Federal Circuit Court of Appeals

Judgment (November 6,

2025)………………………..…....1a

APPENDIX B:

Merit Systems Protection Board

Initial Decision (June 30,

2023)………………………...……3a

APPENDIX C:

Merit Systems Protection Board

Jurisdictional Decision (March

29, 2022)………………………120a

APPENDIX D:

Federal Circuit Court of Appeals

Order (Jan. 29, 2026)…….…145a

APPENDIX E:

5 U.S.C. § 2302………………147a

APPENDIX F:

Petitioner’s Office of Special

Counsel Complaint (Nov. 23,

2017)………………………..…148a

TABLE OF AUTHORITIES

Cases

Delgado v. MSPB,

880 F.3d 913 (8th Circuit 2018)……………….19-20

Flynn v. United States SEC

877 F.3d 200 (4th Cir. 2017)………………..….…15

Johnson v. MSPB

518 F.3d. 905 (Fed. Cir. 2008)………………..…....7

Lachance v. White,

174 F.3d 1378 (Fed. Cir. 1999)……………..….8, 17

Schnell v. Dep’t of the Army,

2010 M.S.P.B. 67 (2010)……………………….……8

Spithaler v. Office of Pers. Mgmt,

1 M.S.P.R. 587 (Feb. 15, 1980)……………………15

Statutes and Regulations

5 U.S.C. § 2302(b)(8), (8)(A)………………1, 7, 8, 12, 20

5 U.S.C. § 2302(b)(8)(i)………2, 3, 7, 11, 12, 13, 15, 16

5 U.S.C. § 2302(b)(8)(ii)…………...…2, 3, 7, 11, 12, 13

5 U.S.C. § 2302(b)(9)……………………………………16

5 U.S.C. § 2302(f)(1)……………………………………..7

5 U.S.C. § 2302(f)(1)(B)………………………………....7

5 U.S.C. § 4302…………………………………………...9

5 C.F.R. 1201.111……………………………………….15

5 C.F.R. 1201.118…………………………………….....18

USDA DR 4040-430……………………………………..9

Other Authorities

11 JOURNALS OF THE

CONTINENTAL CONGRESS, 1

774–1778 ………………………….………….……….5

135 Cong. Rec. 565 (1989)……………………………....5

135 Cong. Rec. 566 (1989)……………………………….6

2135 Cong. Rec. 564 (1989)…………………………..…2

Congressional Research Service,

The Whistleblower Protection Act:

A Legal Overview (Dec. 30, 2024)…………...…..6-7

House Committee on Oversight &

Government Reform, Hrg., “Examining

Sexual Harassment and Gender

Discrimination at the U.S.

Department of Agriculture,”

Hrg. Tr. Serial No. 114-172 (Dec. 1, 2016)…….…9

S. Res. 202 (113th Congress (2013-2014))…….…..….6

S. Rep. No. 112-155 (2012) ……………………………..6

S. Rep. No. 115-229 (2018)……………….…….......7, 19

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the court of appeals (App. 1a) is

available at 2025 U.S. App. LEXIS 29306. The order

of the court of appeals denying rehearing (App. 145a)

is unreported. The decision of the Merit Systems

Protection Board (App. 3a) is available at 2023 MSPB

LEXIS 3406.

JURISDICTION

The judgment of the court of appeals was entered

on November 6, 2025. The court of appeals denied a

timely petition for rehearing en banc on January 29,

2026. The jurisdiction of this Court is invoked under

28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Pertinent statutory provisions are reproduced at

App. 147a.

STATEMENT OF THE CASE

This case presents a question of great importance

that warrants this Court’s review: whether a federal

civilian employee who makes a timely and valid

disclosure premised on both categories enumerated in

5 U.S.C. § 2302(b)(8) is entitled to a Merit Systems

Protection Board decision on both categories.

Congress enacted the Whistleblower Protection

Act in 1989 to safeguard public monies and ensure the

government acts responsibly with the public’s trust by

encouraging federal employees to report waste, fraud,

abuse, illegality, and gross mismanagement

throughout the federal government.1 To encourage

federal employees to come forward and to ensure that

employees could do so without fear of reprisal, the

WPA prohibits personnel actions taken against

whistleblowers when an employee has a “reasonable

belief” that he or she has disclosed evidence of “(i) any

violation of any law, rule, or regulation, or (ii) 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)(i)(ii).

For the WPA’s protections to be meaningful,

federal employees must have confidence that if they

take the risk of reporting evidence of wrongdoing or

mismanagement, the system for processing their

disclosure—including the Office of Special Counsel

(OSC), Merit Systems Protection Board (MSPB), and

courts of appeals—will provide them fair

consideration rather than cursory review or

hypertechnical retrospective scrutiny. In the decades

since the WPA’s passage, however, Congress has

repeatedly amended the law to reiterate its broad

protections for whistleblowers and in doing so, has

repudiated MSPB and Federal Circuit for

insufficiently

protecting

whistleblowers

interpreting and enforcing the law and regulations

unfavorably to them, at adds with the letter and spirit

of the law. By consistently and clearly stating its

1 2135 Cong. Rec. 564 (1989) (statement of Sen. Carl Levin, citing

“two separate surveys in 1980 and 1983 [that] found that an

astonishing 70 percent of the Federal employees with knowledge

of fraud, waste, and abuse did not report it and that the

percentage of employees who did not report government

wrongdoing because of fear of reprisal rose dramatically from 20

percent in 1980 to 37 percent in 1983”).

intent to protect the ability of whistleblowers to come

forward without fear of reprisal, Congress has carried

on a commitment to accountability dating back to the

Continental Congress.

Petitioner had dutifully served as a federal

employee for nearly 17 years in accounting and

auding roles in the Department of Defense Office of

the Inspector General, the Department of Homeland

Security, and the U.S. Department of Agriculture’s

(USDA) Office of Chief Financial Officer when she

earned a position in the Office of Assistant Secretary

for Civil Rights (OASCR) at USDA. Once there,

petitioner discovered fiscal mismanagement and

potentially illegal accounting practices, and she

immediately raised her concerns—first with her

supervisor, then to the USDA’s Offices of General

Counsel and Inspector General, and ultimately to

OSC. Regarding her concerns, petitioner made

protected disclosures that she reasonably believed

evidenced both categories under the WPA: (i)

violations of law, rule, or regulation, and (ii) gross

mismanagement. 5 U.S.C. § 2302(b)(8)(A)(i)-(ii).

Almost

immediately,

she

suffered

adverse

employment actions, including her first ever

unsatisfactory performance rating and a proposal to

remove her from federal service. Recognizing this as

reprisal for her disclosures, petitioner followed the

appropriate process and sought relief from the OSC,

MSPB, and Federal Circuit.

Although petitioner explicitly asserted both WPA

disclosure categories in her complaints to OSC,

contrary to law and regulation, the MSPB analyzed

only the first—whether petitioner made a protected

disclosure of a violation of law, rule, or regulation—

and determined that petitioner failed to prove that

she had a reasonable belief that she made a disclosure

of this first category.

The Federal Circuit

compounded the MSPB’s error in failing to consider in

any way petitioner’s disclosures of gross

mismanagement or conduct a full analysis of

petitioner’s claims by summarily affirming without

an opinion and denying en banc review. During the

pendency of petitioner’s appeal, a senior OASCR

official responsible for contracts pled guilty to

conspiracy and wire fraud related to the very

contracts that petitioner had named in her

disclosures—crimes made possible by the fiscal

mismanagement that prompted petitioner to blow the

whistle and making plain petitioner’s reasonable

belief that she was disclosing both violations of law

and gross mismanagement.

Petitioner’s case is an ideal vehicle for the Court’s

review. Like many whistleblowers, petitioner has

faced considerable obstacles in pursuing a retaliation

claim over a period of several years and has failed to

receive fair process from either the MSPB or the

Federal Circuit. Moreover, this Court is rarely

presented with a case in which a petitioner’s

whistleblower claims have been vindicated as this

petitioner’s have. Except at this Court, her case is

unreviewable, notwithstanding MSPB’s errors and

material new facts that were not available during her

MSPB case.

By granting certiorari, the Court could

demonstrate to petitioner here and future

whistleblowers that the MSPB must give full and fair

consideration and protection to federal employees

who report waste, fraud, abuse, and gross

mismanagement. This message must be clear and

unequivocal to address the MSPB’s error in failing

entirely to consider one of petitioner’s claims,

arbitrarily limiting the bases under which the law

should protect her. Ultimately, unlike some errors in

administration of the WPA that Congress has

previously addressed through legislation, no

amendment can force the MSPB and Federal Circuit

to follow the law and properly consider all of

petitioner’s claims. Only this Court can do so.

A. Legal Background

1. The duty of public servants to protect

government integrity through reporting misconduct

is so deeply rooted in our Nation’s traditions that

Congresses dating back to the 1770s recognized the

vital role that whistleblowers play in identifying and

preventing waste, fraud, abuse, and mismanagement

throughout the federal government.2 In 1989,

Congress enacted the Whistleblower Protection Act

(WPA) expressly to protect such federal employees.

The

legislation’s

sponsors

recognized

that

whistleblowers represent an “important check on

fraud and waste in our Government programs by

identifying potential problems and abuses at an early

stage,” 135 Cong. Rec. 565 (1989) (statement of Sen.

Levin) and noted that without appropriate protection,

“the vast majority of employees choose not to disclose

2 11 JOURNALS OF THE CONTINENTAL CONGRESS, 1774–

1778, at 732 (Worthington Chauncey Ford ed. 1908) (“Resolved,

That it is the duty of all persons in the service of the United

States, as well as all other inhabitants thereof, to give the

earliest information to Congress or other proper authority of any

misconduct, frauds or misdemeanors committed by any officers

or persons in the service of these states, which may come to their

knowledge.”); see also S. Res. 202 (113th Congress (2013-2014)):

A Resolution Designating July 30, 2013, as “National

Whistleblower Appreciation Day.”

the wrongdoing they see.” 135 Cong. Rec. 566 (1989)

(statement of Sen. Grassley). Through the WPA,

Congress prohibited employers in the federal

government from taking or failing to take personnel

actions against whistleblowers for their disclosures.

In the ensuing two decades, Congress amended

the WPA—and more than once specified that it was

doing so in part because it believed that the Merit

Systems Protection Board and the Federal Circuit

were not properly considering whistleblowers’ claims

in the expansive way Congress envisioned. The 1994

amendments to the WPA “were designed, in part, to

address a series of . . . decisions by the MSPB and the

Federal Circuit that Congress deemed inconsistent

with the intent of the 1989 Act.” See S. Rep. No. 112155, at 3 (2012). In 2012, Congress’s amendments to

the WPA through the Whistleblower Protection

Enhancement Act (WPEA) cited a need to strengthen

protections for whistleblowers—and again faulted the

Federal Circuit. See id. at 1-2 (2012) (“Unfortunately,

federal whistleblowers have seen their protections

diminish in recent years, largely as a result of a series

of decisions by the [Federal Circuit] . . . Specifically,

the Federal Circuit has wrongfully accorded a narrow

definition to the type of disclosure that qualifies for

whistleblower protection.”). Enhancements to the

WPA through the WPEA included emphasis that

valid disclosures included “any” violation of law, rule,

or regulation, or gross mismanagement; that a

disclosure could be made to a supervisor or person

who participated in the activity being disclosed; and

that disclosures included those revealing information

previously disclosed. See Congressional Research

Service, The Whistleblower Protection Act: A Legal

Overview (Dec. 30, 2024); see also 5 U.S.C. §

2302(f)(1), 5 U.S.C. § 2302(f)(1)(B).

In 2018, Congress passed the All Circuit Review

Act, which made permanent a previously temporary

authority for the appeal of MSPB whistleblower

reprisal decisions to any court of appeals. See S. Rep.

115-229 at 1 (2018). Previously, the Federal Circuit

had held exclusive jurisdiction, and in authorizing

jurisdiction in other courts of competent jurisdiction,

Congress found that because of the Federal Circuit’s

unique jurisdiction, “no split in the circuits can ever

occur, and thus, federal employees are denied the

most important single procedure which holds appeals

court judges reviewable and accountable.” Id.

(internal citations omitted).

2. The WPA makes it unlawful for federal

employees in positions of authority to “take or fail to

take, or threaten to take or fail to take, any personnel

action against any employee or applicant for

employment” because of any disclosure the employee

or applicant has made which the employee or

applicant “reasonably believes evidences—(i) any

violation of any law, rule, or regulation, or (ii) 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).

3. To establish a claim of whistleblower

retaliation, the employee “must establish, by a

preponderance of the evidence, that a protected

disclosure was a contributing factor in an adverse

personnel action.” Johnson v. MSPB, 518 F.3d. 905,

909 (Fed. Cir. 2008). A protected disclosure, pursuant

to Section 2302(b)(8)(A)(i)-(ii), includes any disclosure

that the employee reasonably believes evidences

either “any violation of any law, rule, or regulation”

or “gross mismanagement, a gross waste of funds, an

abuse of authority, or a substantial and specific

danger to public health or safety.” A whistleblower

“need not prove that the disclosure actually

established one of the types of wrongdoing listed

under section 2302(b)(8)(A),” Schnell v. Dep’t of the

Army, 2010 M.S.P.B. 67, P19 (2010) (emphasis

added), but only that “a disinterested observer with

knowledge of the essential facts known to and readily

ascertainable by the employee [could] reasonably

conclude that the actions of the government evidence”

a protected disclosure. Lachance v. White, 174 F.3d

1378, 1381 (Fed. Cir. 1999).

B. Factual and Procedural Background

1. Petitioner served for almost 20 years in various

positions in which she dedicated herself to ensuring

the efficient and honest operation of the federal

government. She held roles in the Department of

Defense’s Office of the Inspector General and as an

auditor and program manager at the Department of

Homeland Security before beginning work at the

Department of Agriculture (USDA) in 2010. C.A. App.

869-870. In 2016, petitioner applied for and received

a position in the USDA’s Office of the Assistant

Secretary for Civil Rights (OASCR); in that role, as

Director of the Program Planning and Accountability

Division (PPAD), petitioner’s duties focused on the

office’s budgetary functions, including ensuring the

proper obligation of funds and payment of expenses.

App. 5a-6a.

When Petitioner joined OASCR, the office had

been the subject of documented incidents of

mismanagement and violations of law, policy, and

regulation—including inquiries by the Office of

Special Counsel, the USDA Office of Inspector

General, and Congress. See, e.g., C.A. App. 163-199;

House Committee on Oversight & Government

Reform, Hrg., “Examining Sexual Harassment and

Gender Discrimination at the U.S. Department of

Agriculture,” Hrg. Tr. Serial No. 114-172 (Dec. 1,

2016). Petitioner understood that she was hired to

lead PPAD in part to help “clean up” OASCR’s

financial problems. C.A. App. 874 at 59:12-60:11.

During her review of operations as the new PPAD

Director, Petitioner developed concerns about the

legality and propriety of various practices in the office

and brought them to the attention of her immediate

supervisor, the Acting Assistant Secretary for Civil

Rights. Over the course of April, May, and June 2017,

petitioner raised concerns “regarding alleged fiscal

mismanagement” in OASCR with her direct

supervisors. App. 130a. Shortly thereafter, on October

30, 2017, petitioner received a performance

evaluation rating her as Unacceptable, and placing

her on a Performance Improvement Plan. App. 29a.

Contrary to federal law and agency regulation, the

evaluation and PIP were issued to petitioner by a new

supervisor, whose assignment to her petitioner

learned of the day he issued the documents. See 5

U.S.C. § 4302; USDA DR 4040-430; Dkt. No. 59-2 at

6, Case No. 23-2433 (Fed. Cir. Oct. 22, 2024). Up until

that date, petitioner had received only Superior or

Outstanding performance ratings throughout her

work in the government. C.A. App. 1044.

At the conclusion of the PIP, USDA sought to

remove petitioner for “unacceptable performance.”

App. 35a-36a. Ultimately, the agency’s deciding

official sustained the charge of unacceptable

performance but mitigated the penalty to a demotion

and reassignment. App. 39a.

2. Petitioner filed a complaint of whistleblower

reprisal with the Office of Special Counsel on

November 20, 2017, alleging that she had made

protected disclosures of “various improper spending

and contractual practices” at OASCR. App. 40a; see

also Dkt. No. 59-2 at 6, Case No. 23-2433 (Fed. Cir.

Oct. 22, 2024). The reprisal that petitioner reported

included the performance rating and PIP; the

improper assignment of a new supervisor for the PIP

process; and harassment, bullying, and oppression by

her managers. App. at 40a; Dkt. No. 59-2, Case No.

23-2433 (Fed. Cir. Oct. 22, 2024). She also filed a

disclosure with OSC alleging financial improprieties

in OASCR on November 23, 2017. App. 148a-162a.

Petitioner timely filed an appeal of her demotion

on October 4, 2019, and alleged whistleblower

reprisal. App. 40a. The MSPB docketed an appeal of

petitioner’s original whistleblower reprisal claim on

December 19, 2019, because it had been more than

180 days since her OSC complaint. App. 40a.

On March 29, 2022, the MSPB issued an order

finding that petitioner had made a nonfrivolous

allegation that she had made protected disclosures of

“financial improprieties in April, May, and June of

2017,” and that petitioner had made a nonfrivolous

allegation that her disclosures were a contributing

factor in her performance rating, PIP, and proposed

removal. App. 40a-41a; see also App. 120a-144a.

Petitioner’s appeals were joined and the MSPB held a

hearing on August 8-10, 2022. App. 42a.

On June 30, 2023, the MSPB issued an initial

decision affirming appellant’s demotion and denying

her request for corrective action. App. 3a-4a. Among

other errors, the MSPB’s decision relied on analysis of

only whether petitioner’s disclosures evidenced a

reasonable belief of “any violation of any law, rule, or

regulation,” under 5 U.S.C. § 2302(b)(8)(A)(i), and not

whether petitioner’s disclosures also or instead

evidenced

reasonable

belief

“gross

mismanagement” under Section 2302(b)(8)(A)(ii)—

despite the fact that petitioner explicitly asserted

both disclosure categories in her complaints to OSC.

App. 148a, 164a.

Ultimately, petitioner’s concerns about fiscal

mismanagement in OASCR proved well founded.

During the pendency of petitioner’s appeal, Kirk

Perry, the staff member whom petitioner succeeded

but who remained a senior manager in OASCR during

petitioner’s tenure, was indicted and pled guilty to

wire fraud and conspiracy charges related to

mismanagement and fraud at OASCR from 2015 to

2022. See Dkt. No. 72 at 27-31, Case No. 23-2433 (Fed.

Cir. May 14, 2025). Notably, one of petitioner’s

disclosures of wrongdoing or mismanagement at

OASCR was her concern about improper budget

augmentation related to Perry’s knowledge “of

additional funds that will be available through the

Panum contract,” Dkt. No. 59-2 at 7, Case No. 23-2433

(Fed. Cir. Oct. 22, 2024). Petitioner also described

before the MSPB that she was concerned that her

supervisor and Perry were “facetiously claiming that

certain employees worked on reimbursable projects in

order to ‘put money back into’ the appropriated

funds.”” App. 55a. Petitioner’s disclosures were on the

mark: according to the government’s sentencing

memorandum in his criminal case, Perry’s crimes

involved helping a relative secure a no-show position

with Panum, the very OASCR contractor petitioner

named in her disclosure, and Perry approved invoices

for work the relative never did. See Dkt. No. 53 at 203,

Case No. 24-cr-223 (D.D.C. Nov. 7, 2025), ECF No. 53

at 2-3.

3. In addition to her other claims that the MSPB

had erred, petitioner raised the newly discovered

facts of Perry’s offenses with the Federal Circuit

because they further supported her reasonable belief

that her disclosures had evidenced both violations of

law and gross mismanagement.

The court of appeals affirmed without a written

opinion. App. at 1a.

The court of appeals denied rehearing en banc.

App. at 145a.

REASONS FOR GRANTING THE PETITION

THE DECISION BELOW IS WRONG

Among other errors in considering petitioner’s

claims, the MSPB failed to properly or thoroughly

analyze whether petitioner had a reasonable belief

that her disclosures evidenced violations of both

Sections 2302(b)(8)(A) and instead analyzed only

whether she had a reasonable belief that her

disclosures evidenced any “violation of law, rule, or

regulation.” App. 44a. Because petitioner had made

disclosures that she reasonably believed evidenced

both (i) violations of law, rule, or regulation, and (ii)

of gross mismanagement, the MSPB’s failure to

consider

her

gross

mismanagement

claims

constitutes a failure to apply the WPA as Congress

intended.

Petitioner asserted that she reasonably believed

her disclosures evidenced both violations of law and

gross

mismanagement

under

Section

2302(b)(8)(A)(i) and 2302(b)(8)(A)(ii). App. at 148a (“I

am reaching out to the Office of Special Counsel

compelled to disclose the information below because I

do not agree with the actions by management and I

see the following actions as violating Federal law,

rule, or regulation; gross mismanagement; gross

waste of funds; and an abuse of authority”) (emphasis

added). And by their nature, the issues that Petitioner

raised with OSC reasonably constitute either or both

potential violations of law, rule, or regulations, and

gross mismanagement. From the beginning,

petitioner’s claims to the OSC included “concerns

with the spending and contractual practices” of

OASCR and “improperly augmenting OASCR’s

appropriation.” Dkt. No. 59-2 at 7, Case No. 23-2433

(Fed. Cir. Oct. 22, 2024). At that early date, petitioner

raised Perry’s “extreme influence on PPAD staff” and

the fact that when petitioner expressed her concerns

to her supervisor and Perry, she had been

dismissively told the Perry had knowledge of

“additional funds that will be available” through a

contact. Id. at 5, 7. Petitioner further raised concerns

about conflicts of interest, about “the review,

approval, and payment of invoices” with contractors,

and end-of-year general ledger adjustments for which

the “supporting documentation are invoices where

sometime the names of employees are not listed, or a

case number of the investigation is not cited.” App. at

149a.

Although the MSPB’s decision correctly cited and

recognized that a protected disclosure includes both a

Section 2302(b)(8)(A)(i) violation of law, rule, or

regulation,

and

2302(b)(8)(A)(ii)

gross

mismanagement, it then analyzed petitioner’s

disclosures only through the lens of a potential

violation of law, rule, or regulation. App. 44a-64a.

Ultimately, the MSPB determined that appellant

failed to establish that she had a reasonable belief: “a

reasonable person in her position would not have

believed she was disclosing a violation of law, rule, or

regulation with respect to any of her alleged

disclosures.” App. at 64a. Notably, in so doing, the

MSPB’s decision engaged in a highly technical and

detailed discussion of whether petitioner’s claims

reasonably constituted violations of law, rule, or

regulation—meaning that it should have, and likely

could have, reached a different conclusion when

assessing whether the same disclosures constituted

“gross mismanagement.” See, e.g., App. at 46a-48a,

55a, 59a (dismissing as potential violations of law,

rule, or regulation various of petitioner’s disclosures

that may constitute gross mismanagement, including

failure to implement the best practice of locating a

contracting officer representative in the program

office, “red flags” regarding corrections to the budget

that petitioner raised with her supervisor and with

Perry, including whether Perry was “facetiously

claiming that certain employees worked on

reimbursable projects in order to ‘put money back

into’ the appropriated fund,” and otherwise

improperly augmenting appropriations).

Indeed, petitioner’s disclosures, when properly

understood as potential gross mismanagement, paint

the picture of the disorganized financial management

process in OASCR that allowed Perry to commit the

crimes to which he later pled guilty. Dating back to

her OSC complaint regarding Perry’s extreme

influence, ability to locate “additional funds” through

a contract, and year-end-adjustments to ledgers that

excluded employee names, see Dkt. No. 59-2 at 5, 7,

Case No. 23-2433 (Fed. Cir. Oct. 22, 2024) and App.

at 149a, Petitioner understood that the lax controls

and mismanagement in OASCR were creating an

environment that could enable activity like Perry’s.

The MSPB’s failure to conduct any analysis of

petitioner’s claims under Section 2302(b)(8)(A)(i) is a

significant error that severely prejudiced her.

MSPB’s regulations require that its initial decisions

include “findings of fact and conclusions of law upon

all the material issues of fact and law presented on

the record,” as well as the “reasons or bases for those

findings and conclusions.” 5 C.F.R. 1201.111(b)(1)-(2)

(emphasis added); see also Spithaler v. Office of Pers.

Mgmt, 1 M.S.P.R. 587, 588-589 (Feb. 15, 1980). More

generally, the MSPB’s deficient analysis deprived

petitioner of the protections of the WPA, because it

essentially failed to consider half of her claims. In an

analogous case, the Fourth Circuit determined that

the only fair course when the MSPB failed to analyze

one of a whistleblower’s claims was to remand to

better develop the record. See Flynn v. United States

SEC, 877 F.3d 200, 207-208 (4th Cir. 2017) (when an

otherwise thorough decision by an MSPB

administrative judge analyzed one of whistleblower’s

claimed violations of SEC regulation and referred to,

but did not analyze the other, Court found “the

Administrative Judge’s conclusion . . . cannot stand,

even under our deferential standard of review” given

5 C.F.R. 1201.111(b)’s requirement that the decision

“contain findings of fact and conclusions of law upon

all the material issues of fact and law presented”)

(cleaned up). The same remedy—remand for the

MSPB to properly develop the record regarding

petitioner’s disclosure of gross management—is

required here. Development of the record is vital

because the MSPB used its erroneous determination

that petitioner lacked a reasonable belief under

2302(b)(8)(A)(i) to buttress its subsequent conclusion,

viewed only through the lens of petitioner’s claim

under Section 2302(b)(9), that the USDA would have

demoted petitioner regardless of her protected

activity based on the USDA’s assessment that her

performance was unacceptable. App. 103a-104a.

II.

THIS CASE IS AN IDEAL VEHICLE

BECAUSE PETITIONER’S DENIAL OF

FAIR PROCESS IS EMBLEMATIC OF

THE INJUSTICE WHISTLEBLOWERS

OFTEN FACE, AND THE FAILURE TO

CONSIDER HER CLAIM OF GROSS

MISMANAGEMENT IS CLEAR AND

STRAIGHTFORWARD

Petitioner’s case is an ideal vehicle for the Court’s

review because the challenges she has faced in her

dogged efforts to press her whistleblower claims are

emblematic of the difficulty whistleblowers encounter

receiving fair process from the MSPB and Federal

Circuit. The MSPB’s error in failing to consider

petitioner’s disclosures of gross mismanagement is

clear and straightforward, meaning that the Court

has the opportunity to give petitioner the fair hearing

that she and other federal employees like her deserve

but have been denied by the MSPB and Federal

Circuit.

The MSPB’s decision was unjust and contrary to

law and regulation in several other ways that the

Federal Circuit declined to address, but that

demonstrate the extreme challenges whistleblowers

face when challenging adverse actions constituting

reprisal. Repeatedly throughout its decision, the

MSPB

improperly

substituted

credibility

determinations—which are virtually unreviewable—

for legal determinations, to petitioner’s detriment.

See, e.g., App. at 97a-98a (MSPB ignoring USDA’s

clear violation of statute and regulation in petitioner’s

performance review and PIP process and accepting

instead as credible the testimony of a non-expert

USDA witness about what statute and regulation

allow).

Furthermore, instead of making its

determination of whether petitioner had a

“reasonable belief” that her disclosures constituted a

violation of law, regulation, or policy based on the

standpoint of “a disinterested observer with

knowledge of the essential facts,” Lachance, 174 F.3d

at 1381, the MSPB simply made a blanket credibility

determination in favor of the USDA. See App. at 44a.

Petitioner, representing herself, appealed the

MSPB’s decision to the Federal Circuit—not because

of an informed decision about where to seek relief, but

because she is not an attorney and the Notice of

Appeal Rights in the MSPB’s decision implied that

she had no other choice. See App. 115a (“As a general

rule, an appellant seeking judicial review of a final

Board order must file petition for review with the U.S.

Court of Appeals for the Federal Circuit”); see also

Dkt. No. 6, Case No. 23-2433 (Fed. Cir. Oct. 13, 2024).

Once before the court of appeals, petitioner faced

more obstacles. The Federal Circuit declined to

consider the newly discovered facts of Perry’s criminal

conduct that vindicated petitioner’s original

disclosures and that petitioner attempted to include

in the record pursuant to Federal Rule of Appellate

Procedure 28(j), see Dkt. No. 72, Case No. 23-2433

(Fed. Cir. May 14, 2025) and Oral Argument at 13:15,

No. 2023-2433 (Fed. Cir. Nov. 4, 2025),

https://www.cafc.uscourts.gov/oral-arguments/232433_11042025.mp3. Because petitioner also has no

right or ability to reopen her claim before the MSPB

based on this newly discovered material evidence, see

generally 5 C.F.R. Part 1201.118, the court of appeals’

rejection of it means that petitioner had no

opportunity to be heard regarding this strong

corroboration of her disclosures that was not available

to her during the MSPB process.

Next, although the court acknowledged in oral

argument that USDA had violated a regulation in the

issuance of petitioner’s performance evaluation and

PIP, Oral Argument at 23:35-23:39, No. 2023-2433

(Fed. Cir. Nov. 4, 2025), https://www.cafc.

uscourts.gov/oral-arguments/23-2433_11042025.mp3

(“it really does seem like this was not necessarily

complied with”), it did not act on petitioner’s claim

that that finding supported—namely that the MSPB

had erred in accepting a USDA witness’s faulty

testimony regarding the law and regulation rather

than properly making its own legal determination.

The Federal Circuit affirmed the MSPB’s decision

without providing petitioner with any reasoning and

declined rehearing or en banc review.

III.

THE QUESTION PRESENTED

WARRANTS REVIEW BECAUSE IT

HOLDS IMPLICATIONS FOR

WHISTLEBLOWERS THROUGHOUT

THE FEDERAL GOVERNMENT

The question presented is of great importance to

federal employees throughout the federal government

who deserve the protections that Congress mandated

and that federal regulations require, including

through a fair and thorough analysis before the

MSPB and Federal Circuit.

Federal employees considering making disclosures

under the WPA and fearing retaliation face a gauntlet

of procedural barriers, from first articulating their

claims to OSC, to exhausting the OSC process, to

establishing a prima facie case of reprisal to receive

hearing by the MSPB and potentially courts of

appeals. Congress has recognized this daunting

challenge and has repeatedly sought to broaden

protections for federal employees who blow the

whistle.

Nonetheless, it appears that the Federal Circuit

continues to hold whistleblowers to an impossible

standard. The early results of the expansion of the

authority of other appeals courts to review MSPB

determinations suggest that the Federal Circuit

continues to deny whistleblowers the protections that

Congress intended. See S. Rep. 115-2209 (2018) at 3

(finding that from October 1994 until Congress

temporarily allowed appeals courts other than the

Federal Circuit to hear MSPB appeals in 2012, “the

Federal Circuit ruled favorably for Federal employee

whistleblowers on only three out of 243 appeals

considered,” and that from 2012 to March 11, 2018,

“the Federal Circuit heard 31 appeals of Federal

employee whistleblowers and ruled favorably for the

whistleblower in just one of those appeals. With allcircuit review authority, other circuits heard six

appeals from Federal employee whistleblowers,

ruling favorably for the whistleblower in two of those

appeals”)(emphasis added); see also Delgado v.

MSPB, 880 F.3d 913, 920-921 (8th Circuit 2018) (in

Eighth Circuit’s first review of an MSPB decision

following the passage of the All Circuits Review Act,

finding an MSPB decision arbitrary and capricious;

finding MSPB’s enforcement of the OSC exhaustion

requirement “unlike any we have encountered in

other federal statutory schemes” and the MSPB’s

approach “an arbitrary trap for unwary federal

employees”; and rejecting the MSPB’s reasonable

belief finding because it had applied the wrong

standard and required whistleblower, at the outset, to

“allege . . . the mens rea necessary for a criminal

perjury conviction”).

At the very least, whistleblowers like petitioner

who manage to navigate the OSC process to the

MSPB, and who claim disclosures premised on both

categories enumerated in 5 U.S.C. § 2302(b)(8)(A), are

entitled to a reasoned decision on both categories. In

addition, when the MSPB has failed to follow the

law—which it did in petitioner’s case by entirely

failing

consider

her

claims

gross

mismanagement—whistleblowers

deserve

process from the Federal Circuit than summary

affirmance.

Because the error in petitioner’s case involves the

absence of legal analysis and action by the MSPB

rather than an erroneous interpretation, Congress

cannot amend the WPA to ensure that petitioner and

other whistleblowers like her enjoy its protections as

intended. This Court should grant review to make

clear to whistleblowers that the WPA means what it

says, and that if they make timely and valid

disclosures as defined by law, they will receive

meaningful review of any claims of reprisal from the

MSPB and any court of appeals—including the

Federal Circuit.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

SEAN M. AASEN

ADRIAN F. SNEAD

PORTER WRIGHT MORRIS

& ARTHUR LLP

2020 K St., NW, Suite 600

Washington, D.C. 20006

PETER E. MINA

THE MINA FIRM PLLC

1717 K. Street NW

Suite 900

Washington, D.C. 20006

APRIL 2026.

MOLLY GASTON*

Counsel of Record

GASTON & COONEY PLLC

1455 Pennsylvania Ave NW

Suite 400

Washington, D.C. 20004

202.657.0012

mollygaston@gastoncooney.com

*Admitted only in Virginia;

practicing law in the District of

Columbia under the supervision

of lawyer in firm who is member

of good standing of the D.C. Bar.

APPENDIX

TABLE OF CONTENTS

APPENDIX A:

Federal Circuit Court of Appeals

Judgment (November 6,

2025)………………………..…....1a

APPENDIX B:

Merit Systems Protection Board

Initial Decision (June 30,

2023)………………………...……3a

APPENDIX C:

Merit Systems Protection Board

Jurisdictional Decision (March

29, 2022)………………………120a

APPENDIX D:

Federal Circuit Court of Appeals

Order (Jan. 29, 2026)…….…145a

APPENDIX E:

5 U.S.C. § 2302………………147a

APPENDIX F:

Petitioner’s Office of Special

Counsel Complaint (Nov. 23,

2017)………………………..…148a

APPENDIX A

NOTE: This disposition is nonprecedential.

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

______________________

TOMASA GABRIELLA BOLANOS-REYNOSO,

Petitioner

DEPARTMENT OF AGRICULTURE,

Respondent

______________________

2023-2433

______________________

Petition for review of the Merit Systems

Protection Board in Nos. DC-0432-20-0011-I-6, DC1221-20-0317-W-5.

______________________

JUDGMENT

______________________

SEAN MICHAEL AASEN, Porter Wright

Morris & Arthur LLP, Washington, DC, argued for

petitioner. Also represented by MATTHEW F.

STOWE, Columbus, OH.

JANA MOSES, Commercial Litigation Branch,

Civil Division, United States Department of Justice,

Washington, DC, argued for respondent. Also

represented by ALBERT S. IAROSSI, PATRICIA M.

MCCARTHY, BRETT SHUMATE.

______________________

THIS CAUSE having been heard and considered, it is

ORDERED AND ADJUDGED:

PER CURIAM (HUGHES, CUNNINGHAM, and

STARK, Circuit Judges).

AFFIRMED. See Fed. Cir. R. 36.

ENTERED BY

ORDER OF THE COURT

/s/

Jarrett B. Partlow

Clerk of Court

November 6, 2025

Date

APPENDIX B

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WASHINGTON REGIONAL OFFICE

TOMASA GABRIELLA BOLANOS-REYNOSO,

Appellant,

DEPARTMENT OF AGRICULTURE,

Agency.

DATE: June 30, 2023

DOCKET NUMBER

DC-0432-20-0011-I-6

DC-1221-20-0317-W-5

Eric L. Siegel, Washington, D.C., for the appellant.

Christian E. Pagan, Washington, D.C., and Carlos R.

Ramirez, Albuquerque, New Mexico, for the agency.

BEFORE

Monique Binswanger

Administrative Judge

INITIAL DECISION

On September 5, 2019, the agency demoted the

appellant from her position as a Supervisory Program

Specialist, GS-0301-15, to Management Analyst, GS0343-13, due to unacceptable performance under 5

U.S.C. chapter 43. I-1 Appeal File (AF), Tab 1.1 The

appellant timely appealed the demotion. Id. The

appellant also filed an Individual Right of Action

(IRA) appeal alleging whistleblower reprisal

regarding related personnel actions. W-1 AF, Tab 1.2

The Board has jurisdiction over both appeals

pursuant to 5 U.S.C. § 4303(e), 5 U.S.C. § 7701 and 5

U.S.C. § 1221. I joined the appeals for processing and,

on August 8, 2022 through August 16, 2022, I held the

requested hearing for both appeals. I-6 AF, Tabs 39,

41, 43, 45, 47 (Hearing Recording (HR) Volumes 1-5)

(HR Vols. 1-5).

For the reasons that follow, the appellant’s

demotion is AFFIRMED and her request for

corrective action is DENIED.

1 The appellant’s demotion appeal has been dismissed without

prejudice and refiled on several occasions since its original filing.

The original docket number was DC-0432-20-0011-I-1. Upon

dismissal and refiling of the appeal, the docket number became

DC-0432-20-0011-I-2. The last digit of the docket number

increased with each dismissal and refiling. Throughout this

Initial Decision, I have cited documents by the last two digits of

the docket number under which they were filed, and the Appeal

File tab at which they appear in that docket (e.g., I-3 AF, Tab

20).

2 The appellant’s IRA appeal has also been dismissed without

prejudice and refiled on several occasions since its original filing.

As with her demotion appeal, the docket number changed with

each refiling. I have cited to documents filed under the IRA

appeal by the last two digits of the docket number under which

they were filed and the Appeal File tab at which they appear in

that docket (e.g., W-5 AF, Tab 32).

ANALYSIS AND FINDINGS

Background

On October 30, 2016, the appellant became the

Director of the Program Planning and Accountability

Division (PPAD) within the agency’s Office of the

Assistant Secretary for Civil Rights (OASCR). Her

direct supervisor was Winona Scott, Associate

Assistant Secretary for Civil Rights (AASCR). Her

second level supervisor was Frederick Pfaeffle Arana,

the Deputy Assistant Secretary for Civil Rights

(DASCR), a political appointee. At that time, Joseph

Leonard, also a political appointee, served as the

Assistant Secretary for Civil Rights (ASCR). Scott

supervised the appellant, as well as all other senior

OASCR managers and staff. As PPAD Director, the

appellant supervised a staff of approximately six

people: Dianne Davis-Wright (Team Lead), Sequana

Janifer, Mary Ann Sypert, Lynnie Jones, Stephanie

Brown, and Jackie Lenzy. I-1 AF, Tab 9 at 95.

PPAD is responsible for the budgetary functions of

the OASCR, among other administrative functions. I1 AF, Tab 12 at 69. Principal amongst its budgetary

functions is budget execution, i.e., obligating funds

and paying expenses within the available limits. I-6

AF, Tab 39 (HR Vol. 1). Failure to properly execute

the budget can lead to obligating more funds than

available, which could lead to a violation of the AntiDeficiency Act (ADA). I-6 AF, Tabs 39 and 43 (HR

Vols. 1 and 3). As relevant to this appeal, the ADA

statutorily prohibits a government agency from

spending more than Congress appropriates to it, or

spending its appropriated funds for an unauthorized

purpose. I-6 AF, Tab 43 (HR Vol. 3). Accordingly, one

of the appellant’s main functions as the PPAD

Director was to ensure OASCR’s budget was properly

executed and did not “go deficient” or otherwise

violate the law. I-6 AF, Tab 39 (HR Vol. 1). In doing

so, she was charged with maintaining an accurate

“Status of Funds” (SOF) and providing other

necessary budget information for senior OASCR

managers. Id. She was also responsible for overseeing

proper payroll administration for OASCR employees

and proper payment of contractual expenses. Id.

PPAD worked closely with USDA’s Office of the Chief

Financial Officer (OCFO) Budget Officer for staff

offices, John Pirchio. I-6 AF, Tabs 39 and 43 (HR Vols.

1 and 3). In FY 2017, Pirchio and his staff frequently

interacted with the appellant and PPAD staff to assist

them with budget execution tasks.

The OASCR budget includes two main sources of

funding: appropriated funds and reimbursable funds.

I-6 AF, Tabs 39 and 43 (HR Vols. 1 and 3).

Appropriated funds are those funds directed to

OASCR by Congress to carry out the mission of the

office. Id. Typical expenses charged against

appropriated funds are OASCR staff payroll,

employee travel costs, and operating costs such as

rent and utilities. Id. Reimbursable funds are funds

USDA subagencies (e.g., Forest Service, Rural

Development, etc.) pay to OASCR for EEO-related

services OASCR renders. Id. OASCR is also

responsible for providing business operations support

to USDA subagencies and program offices, such as

budget formulation and execution, human resources

support, and contract and operations services. Id.

As relevant to this appeal, OASCR’s primary

services to subagencies is to process, investigate, and

adjudicate complaints of discrimination for each

subagency. I-6 AF, Tab 30 (HR Vol. 1). OASCR’s

Center for Civil Rights Enforcement (CCRE) houses

the Employment Complaints Division (ECD),

Employment Investigations Division (EID), and the

Employment

Adjudication

Division

(EAD)

(collectively referred to as “program offices”). Id. ECD,

under Chief Candace Datcher, reviews formal EEO

complaints and refers accepted complaints to the EID

for investigation. Id. EID, under Chief Dona

Marshall, conducts investigations into and produces

Reports of Investigation (ROIs) for all referred

complaints. Id. If the employee requests the agency

adjudicate the discrimination complaint (as opposed

to requesting a hearing before the EEOC), EID

forwards the complaint and its ROI to the EAD, under

Chief Kirk Perry, for a Final Agency Decision (FAD)

on the discrimination claims. Id.

The investigation, ROI, and FAD tasks are

primarily performed by government contractors. Id.

Accordingly, OASCR program offices (e.g., EID, EAD)

procures contracts with numerous contractors to

provide each of these services. Id. As OASCR’s

budgetary arm, PPAD is responsible for ensuring the

contractors are promptly paid for their services

pursuant to those contracts. Id. However, the funding

for these services is ultimately provided by the

subagencies for which they are provided. Id.

Subagencies obligate funds to OASCR to cover these

payments pursuant to Interagency Agreements

(IAAs), which are contracts setting forth the services

OASCR will provide and the funds the subagencies

will transfer for those services.3 Id.

3 For example, the Forest Service (FS) executes an IAA each

fiscal year agreeing to reimburse OASCR for the cost of EID

conducting, through contractors, investigations into all EEO

Obtaining and executing budget authority for

reimbursable services is a somewhat convoluted

process that requires a brief overview here. “Budget

authority” refers to the amount of money available for

OASCR to process EEO complaints on behalf of the

subagencies. I-6 AF, Tab 43 (HR Vol. 3). After an IAA

is executed, the program office requests a “purchase

order” for the IAA amount. Id. The purchase order is

the subagency’s commitment to reimburse OASCR for

the subject services. Id. The purchase orders are

uploaded into the agency’s financial management

system (“FMMI”), after which OCFO creates a “sales

order” to establish the budget authority in FMMI. Id.

The sales order incorporates all of the purchase orders

for the particular reimbursable activity (e.g.,

investigations) and represents the maximum amount

OASCR can spend on behalf of the subagencies to

complete those tasks. Id. To execute, i.e. spend, the

funds, OASCR directs work to its contractors, who

then submit invoices for the work performed. Id.

Upon receipt of the invoices, the Contracting Officer

Representative (COR) verifies the services provided

were proper under the contract and approves the

invoice for payment. Id. USDA’s Office of Contracting

and Budget (OCB) then reviews and issues final

approval to pay the invoice. Id.

The amount a subagency obligates to OASCR

though its IAAs may change throughout the fiscal

year. I-6 AF, Tab 39 (HR Vol. 1). The initial IAA is

complaints filed by FS employees that year. It also executes an

IAA agreeing to reimburse OASCR for the cost of EAD

producing, through contractors, any FADs requested by FS

employees, and etc. OASCR has several IAAs with each USDA

subagency in this manner.

based on a three-year average of that particular

subagency’s past EEO complaint activity (i.e. how

much services they required). Id. PPAD issues IAA

modifications (“mods”) to either increase or decrease

that amount obligated based on the actual number of

EEO complaints the subagency receives throughout

the year. Id. Upon execution of an IAA modification,

the program office increases the purchase order and

OCFO increases the sales order, resulting in an

increase of OASCR’s reimbursable budget authority

for that activity. Id.; see also I-6 AF, Tab 43 (HR Vol.

3). This function requires that PPAD, OASCR

program offices, and subagency EEO managers work

closely and continuously to track EEO complaint

activity for each subagency to ensure OASCR has

sufficient budget authority to conduct and pay for

EEO services on their behalf. Id.

This constant calibration is necessary because

OASCR cannot authorize payments to contractors

unless it has enough unobligated budget authority

registered in FMMI to cover the expense. I-6 AF, Tabs

39 and 43 (HR Vols. 1 and 3). In other words, if the

subagencies have not obligated enough funds through

their IAAs, OASCR cannot direct contractors to

perform work. Though OASCR sends out IAA

modifications to increase the budget authority when

necessary, that process could take some time. Id.

However, timely processing EEO complaints is

essential to OASCR’s mission; failure to promptly

investigate and adjudicate complaints can lead to

significant sanctions against the agency. Id.

Accordingly, where invoices were due but the

reimbursable budget authority in FMMI was

insufficient, OASCR charged the invoices against its

own unobligated appropriated funds. Id.

10a

This practice could require modifications to

OASCR’s budget to “free up” appropriated funds to

temporarily cover the reimbursable expenditures. I-6

AF, Tabs 39 and 43 (HR Vols. 1 and 3). For example,

PPAD might revise OASCR’s projected obligations

(i.e. planned but unspent funds) for certain expenses,

such as rent or utilities, to create unobligated budget

authority in its appropriated fund against which the

EEO processing costs could be charged. Id. After the

IAA modification is finalized and the reimbursable

budget authority increased, PPAD processes a

general ledger correction (“B2”) to recategorize the

expenditure as reimbursable, thereby releasing

OASCR’s obligation of its appropriated funding for

those costs and allowing it to be obligated for other

expenditures. Id. Accordingly, managing the OASCR

budget involved a constant interplay between

reimbursable and appropriated funds, and required

awareness of projected IAA modifications. Id.

Complicating that interplay was the fact that,

during the relevant time period, some subagencies

could not obligate their entire IAA amount at the start

of the fiscal year. I-6 AF, Tab 39 (HR Vol. 1).

Typically, on October 1 of every year, Congress passes

an annual appropriations bill that provides a full

fiscal year of appropriated funds to each Federal

government agency. Id.; see also I-6 AF, Tab 43 (HR

Vol. 3). Agencies can then obligate funds up to the

limits of their appropriations. Id. However, during

this time period, Congress passed several Continuing

Resolutions (CRs) throughout the fiscal year in lieu of

an entire fiscal year appropriations bill, which had

the effect of appropriating funds to agencies

piecemeal based on the length of the CR. Id. Pursuant

to the October 2016 CR, OASCR and subagencies

11a

received only a fraction of their full FY 2017

appropriated funds at that time. I-6 AF, Tab 39 (HR

Vol. 1). Most subagencies therefore processed

purchase orders using pro-rated amounts based on

the percentage of appropriated funds they received

under the CR.4 Id. Accordingly, the corresponding

sales orders and ultimate budget authority in FMMI

also reflected only a portion of the full-year authority

OASCR expected to have for those services.

Important to this appeal is the fact that

subagencies do not immediately transfer funds to

OASCR upon execution of their IAAs or modifications.

I-6 AF, Tab 43 (HR Vol. 3). Rather, after the

reimbursable services are rendered and contractor

invoices paid, OASCR bills the subagencies for the

invoices paid on their behalf, after which the

subagency transfers the obligated funding in the

amount of that bill. Id. Billing requires PPAD to

determine, for each subagency, how much money it

paid out that fiscal year for IAA-reimbursable

services. Id. This involves reconciling individual

invoices to the payments registered in FMMI and

sorting those expenses by subagency. Id. Once

subagencies are billed for the services, they transfer

the actual funds to OASCR, referred to as “collection”

of the reimbursable funds. Id.

Subagency IAA funds that are obligated to OASCR

appear in FMMI as available funding in OASCR’s

For example, if the CR provided the agency with 2 months of

funding, a subagency might obligate only one-sixth of the full

IAA amount, with the understanding that it would continue

obligating funds in the same manner as additional funding was

appropriated by Congress throughout the year.

12a

reimbursable budget. I-6 AF, Tab 43 (HR Vol. 3). The

subagency cannot use those obligated funds for other

purposes unless they are “deobligated,” i.e., released,

in FMMI. Id. After PPAD fully bills a subagency for

its reimbursable services in a fiscal year, any unused

obligated funds are deobligated and become available

to the subagency for other appropriate expenses. Id.

Likewise, if OASCR determines it paid more for the

subagency’s EEO services than its IAA obligated,

OASCR must issue an IAA modification to the

subagency to increase the amount. Id. While the

amounts fluctuate for individual subagencies,

OASCR requests purchase orders and modifications

based on actual services provided. Id. Therefore,

though OASCR may, after fully reconciling the

billings, determine that some subagencies did not

obligate enough funding, it may also have determined

that other subagencies obligated too much. Id. The

deobligation and modification process following

billing reconciliation therefore levels out those

discrepancies. Id.

During the time period relevant to this appeal,

OASC’s reimbursable funding was not broken down

by activity or subagency. I-6 AF, Tab 43 (HR Vol. 3).

Rather, it was recorded in FMMI as a single budget

authority from which OASCR could draw to pay for

any of the EEO-related services rendered to any

subagency. Id. Additionally, PPAD did not separately

track in real-time the funds it paid on behalf of each

subagency for each service, nor did it reconcile the

billings for many years prior to the appellant’s tenure.

Id. As a result, PPAD had not fully billed the

subagencies for prior year obligations from FY 2013

through FY 2016 upon the appellant’s arrival at the

start of FY 2017. Id. As a result, some subagencies

13a

were due unknown amounts of deobligated funds, and

some subagencies owed unknown amounts of

unobligated funds for those fiscal years. Id. Notably,

unused obligated funds must be deobligated within 5

years or the subagency loses its ability to obligate

those funds toward other expenses. Id. Accordingly,

PPAD had to deobligate and unused FY 2013

subagency funds no later than the end of FY 2018

(September 20, 2018). Id.

FY 2017 Performance

The appellant was required to perform acceptably

pursuant to the goals and tasks set forth in her

annual

Performance

Plan

throughout

the

performance year. OASCR’s performance year

aligned with its Fiscal Year (FY), which ran from

October 1 through September 30 each year. The

appellant’s FY 2017 Performance Plan (FY 2017 Plan)

contained the critical elements and goals of the

appellant’s position against which her performance

would be rated that year. The appellant had six

critical elements of her position: (1) Mission Results;

(2) Leadership/ Management or Supervision; (3) Civil

Rights, EEO and Diversity and Inclusion; (4)

Communications and Customer Service; (5)

Innovation;

and

(6)

Personally

Identifiable

Information. I-1 AF, Tab 12 at 42-53. Her

performance in these elements would be rated on a

three-tier scale: Exceeds Fully Successful; Fully

Successful; or Does not Meet Fully Successful (aka

Unsuccessful or Unsatisfactory). Id. at 40. Pursuant

to the evaluation system, if the appellant’s

performance was rated as Unsuccessful in any critical

element, her overall rating for the fiscal year must be

Unacceptable regardless of how she performed in her

14a

other critical elements. Id.

At issue in this appeal is the appellant’s

performance

the

Mission

Results

and

Communication and Customer Service (CCS)

elements. Under Mission Results, the plan required

the following:

Develops,

implements,

and

evaluates

initiatives in assigned programs. Manages

program(s), resolving issues and problems

within the employee’s control. Monitors all

aspects of program(s) for quality, effectiveness,

and consistency. Program plans and guidance

are responsive to objectives and requirements

of the Agency. Policy instructions are

appropriately used and are accurate. Evaluates

effectiveness of work and adjusts plans

accordingly.

AF, Tab 12 at 43. The plan described the level of

performance expected in this critical element to

achieve a “Fully Successful” rating, broken down

between

“Financial

Management,”

“Human

Resources Liaison,” “Program Planning,” and

“Logistics” duties. Id. As relevant to this appeal, the

Financial Management performance expectations of

her position were:

• Manages budget and fiscal responsibilities

• Maintain detailed and accurate accounting

•

information

Provides timely status of funds reports

Processes Procurement and Contract requests

Manages Interagency Agency Agreements

(IAAs)

Ensures financial data integrity

15a

• Verifies and makes prompt payments

Id. The plan further required as a performance

measure that all actions be “completed accurately

within the required timeframes.” Id. Regarding the

Communications and Customer Service element, the

plan required:

Performance demonstrates an ability to

effectively communicate and support to the

ASCR and other members or the leadership

team, as well as subordinates. Engagement

and participation is dependable and reliable in

that

contribution

ideas

and

recommendations further development of

OASCR business processes, deliverables and

other critical actions. Works cohesively and

collaboratively with colleagues to share

information,

problem

solve,

implement

decisions, and define team goals. Demonstrates

a mature acceptance of constructive criticism

and acts to address areas noted for

improvement. Works through the channels of

communications

and

keeps

immediate

Supervisor updated and briefed on key and

critical

matters.

Oral

and

written

communications are clear, correct, timely, and

presented in an understandable manner.

Supervisor and coworkers are informed of

issues and problems when necessary.

Information and guidance provided is timely

and correct.

AF, Tab 12 at 49. The plan defined the level of

performance expected to achieve a Fully Successful

rating in this element as follows:

16a

• Written responses are concise, clear, factually

•

accurate, logically ordered, and substantially

free or errors. They are provided within

designated or negotiated time frames with the

supervisor, organization and/or customer.

Oral responses are clear, courteous and

directly address Issues and questions on

relevant issues. Provides technical expertise on

initiatives and actions required to establish

and maintain effective delivery or assigned

programs.

Maintains professional relationships and

interactions with immediate staff, customers,

and Internal and external stakeholders to

advance PPAD Interests and promote

collaboration,

two-way

communication,

teamwork, and results. Represents PPAD and

USDA effectively in performance of duties.

Continually

informs

supervisor

and

appropriate Program management or sensitive

or controversial emerging issues and offers well

thought-out recommendations to prevent

and/or respond to developing problems.

Seeks and actively listens to others' questions,

ideas, and concerns; shows respect for and

considers diverse viewpoints, following up to

ensure understanding.

Balances multiple and sometimes competing

interests and adjusts priorities in response to

changing

demands.

Analyzes

customer

feedback and identifies needs and concerns in

making decisions, devising solutions, and

resolving conflicts.

Id. The plan specified that the appellant would be

17a

evaluated based on her supervisor’s observations,

review of her work product, and discussion with

employees, coworkers, customers and superiors. Id.

On January 4, 2017, Scott emailed the appellant

her FY 2017 Plan for review and requested the

appellant let her know if she had any edits to the plan.

I-3 AF, Tab 33 at 6. On January 24, 2017, Scott again

emailed the appellant, directing her to review and

sign her FY 2017 Plan by January 31, 2017. I-3 AF,

Tab 33 at 21. On January 31, 2017, the appellant

responded with a copy of the plan that had a few

highlighted areas and asked to discuss those areas

with Scott. Id. In the Mission Results element, the

appellant highlighted the following tasks: (1) as

“Human Resources Liaison,” her development of the

Annual Succession Plan; (2) under “Program

Planning,” her development of the Annual Conference

Report and (3) coordinating audits and management

control report responses. I-3 AF, Tab 33 at 23. In the

Leadership/Management or Supervision element, she

highlighted tasks requiring her to establish priorities

and timetables for attaining goals and objectives, and

building relationships within the organization. Id. at

25. Finally, she suggested terminology or

typographical changes in the Leadership and CCR

elements. Id. at 26, 29. Hall met with the appellant

on behalf of Scott to discuss her questions and, on

February 6, 2017, the appellant signed the plan. I-1

AF, Tab 12 at 41-42; see also I-6 AF, Tabs 25 and 31

(Stipulations).

On April 20, 2017, Scott issued the appellant a

mid-year performance progress review indicating the

appellant was meeting the expectations of her

position. I-1 AF, Tab 12 at 41. Scott did not meet

directly with the appellant to discuss the progress

18a

review.

In or around May and June 2017, the appellant

began providing Scott and OASCR management with

status of funds reports projecting a negative year-end

balance, particularly with respect to salary

projections against the appropriated funds balance.

In response to the appellant’s emails, Scott frequently

asked the appellant for the status of the IAA funding

and anticipated modifications so additional funding

could be factored into the projections. For example, on

July 13, 2017, Scott directed the appellant to provide

an “accurate” status of funds every week. I-3 AF, Tab

36 at 81 (emphasis in original). Additionally, in

response to the appellant’s August 21, 2017 request

for a meeting with Scott and Pirchio on the budget

deficit, Scott stated:

I need to know if you have received all of the

moneys from the mods and if not, what is

outstanding and will that impact the current

approps balance. Thanks

I-3 AF, Tab 17 at 31-32. The following day, the

appellant provided Scott with a chart indicating that

at least 20 IAA modifications had not been received.

Id. at 29-30. This issue continued to skew the

appellant’s budget projections through the end of the

fiscal year. Only one week later, on August 29, 2017,

Perry requested the status of funds, to include

reimbursable funds. I-3 AF, Tab 37 at 52. In response,

the appellant provided Scott, Perry, and King with

the report. However, the balances provided were in

the negative because the appellant failed to

incorporate payroll adjustments that had been made

in FMMI. Id. at 49-51. After Scott again asked her

about the negative balances, the appellant provided a

19a

status of funds projecting a year-end positive balance

of $143,198.60.

Approximately two weeks later, on September 13,

2017, the appellant provided Scott with the weekly

status of funds that did not include the status of

expected IAA reimbursable funds and showing a

negative year-end balance of over $43,000. I-3 AF,

Tab 33 at 56-58. Scott again requested the status of

the pending IAA funds and directed the appellant to

only provide her status of funds reports that

incorporate all outstanding modifications. Id. at 56.

Separately, Scott forwarded the email to Perry and,

through several back and forth emails, they had the

following conversation:

Scott: Does this make sense to you?

Perry: No, how the hell is the budget going in

reverse

Let me check this out tonight, but something is not

correct

Scott: I am just now signing a mod for the FS in

the amount of $355,985. Do you see that

anywhere?

Perry: Nope, it is not registered as part of the

reimbursable money yet, and we have to get this

all done like by the end of next week or else, it will

be no good.

Part of that is going to be used to offset money used

by ancon during the initiative.

We also need the mod from FSIS

Scott: Yep I know – that is about $255

Perry: Right (way to go Winona- on top of things)

20a

Scott: I’m convinced GB is trying to set me up to

be in violation of the ADA. She only reports

negative balances.

Perry: Me too, every time we sit down and I

explain where the money [is], by the next week she

has found a way to get the balance back into the

Negative, this is damn crazy

That’s why I’m looking through these numbers,

but seriously by next week I may have to intervene

with Diane and them, they keep taking instruction

from her and ignoring items we should be working

on… there is no way in heck the balance should

still be negative

Scott: You have my permission to do so. Thanks

I-6 AF, Tab 36 at 6-7. The following day, Scott emailed

the appellant the following directions:

The adjustments need to be made on the SOF

by inputting more accurate figures in the

operating budget column. Examples: overtime,

rent, communications and utilities, & travel all these figures need to change and PPAD can

make those adjustments (not OCFO).

In addition, the B2 adjustments need to be

completed by NLT Wednesday 9/20/17. I still

have no idea what IAA agreements are

outstanding nor what our bottom line

projection is for spending.

As for a year end process in a manual- the staff

knows what to do and have been doing so for

years.

I-3 AF, Tab 33 at 69.

21a

In addition to the anticipated adjustments related

to IAA modifications, another issue was the proper

coding of OASCR employees’ payroll. Typically,

OASCR employee salaries are charged against its

appropriated budget authority. However, OASCR

employees detailed to working on reimbursable

matters (i.e. projects or initiatives funded by one or

more subagencies), had their salaries charged to

OASCR’s reimbursable funds for the applicable time

period. As relevant to this appeal, in FY 2017, OASCR

conducted a 120-Day EEO Initiative wherein OASCR

employees produced FADs in addition to those being

written by contractors to address the backlog. I-6 AF,

Tab 39 (HR Vol. 1). As this was reimbursable work,

the detailed OASCR employees’ salaries were to be

charged against the reimbursable rather than the

appropriated budget. PPAD therefore modified the

employees’ time and attendance (T&A) records to

reflect the reimbursable billing code for the relevant

pay periods. Once modified, salary amounts

previously charged against appropriated funds were

transferred to reimbursable funds, thereby releasing

that appropriated budget authority for other

appropriate uses.

On July 14, 2017, Sypert emailed the appellant

that week’s status of funds report and indicated

OASCR might have a negative year-end balance of

over

$250,000. I-3 AF, Tab 36 at 100. The appellant

responded that Sypert still had to transfer the

detailed employee salary expenses to the

reimbursable funds, which Sypert then effected. Id.

Due to a glitch in FMMI that left a small portion of

the salary expense in the appropriated budget, PPAD

had to execute two adjustments to fully effectuate the

22a

expense transfer. However, the second transfer was

not done. This caused anomalies in the budget that

the appellant could not explain. The appellant, Scott,

Pirchio, and their staffs exchanged numerous emails

throughout the last quarter of the fiscal year

discussing these various adjustments, with Pirchio

eventually stating:

I don’t think you understand what is trying to

be accomplished here. Employees were booked

to the appropriation, they did a 120 day EEO

Initiative to the reimbursement. OCR did

corrected T&As to move their time while on

detail to the reimbursement. There is a flaw in

the FMMI system that when a corrected T&A

is completed, it leaves a small amount of

benefits un-moved. This B2 that MaryAnn is

proposing is moving the ‘un-moved’ benefit

portion.

I-3 AF, Tab 33 at 51. Pirchio testified that these issues

had come up throughout the fiscal year and that this

was not the first time he had to explain this to the

appellant. I-6 AF, Tab 43 (HR Vol. 3).

The appellant’s oversight of IAA processing also

deteriorated during this time period. On or about

November 18, 2016, PPAD determined that the IAAs

overcharged subagencies for certain shared costs and

that modifications to the IAAs were required to adjust

the amounts. I-3 AF, Tab 37 at 45. On or about July

10, 2017, PPAD issued a second round of

modifications to the subagencies to correct the

projected number of EEO cases for many subagencies.

Id. On July 13, 2017, Scott emailed the appellant:

It is my understanding that there were

23a

mistakes in the IAAs that were sent to the

agencies. They should have been vetted with

the OASCR program Chiefs (Dona, Kirk and

Candace) to ensure the correct complaint

numbers were being billed. Dianne will advise

you, me and David on which agencies will

require corrected IAAs.

Please stay on top of this.

I-3 AF, Tab 37 at 32.

On July 18, 2017, the appellant sent Perry and

Marshall a third round of draft modifications and

requested they review and approve by noon the

following day. I-3 AF, Tab 37 at 35. These

modifications primarily addressed the increase in the

number of cases several subagencies were processing.

Id. at 45. However, the drafts contained errors and

were not issued to the subagencies until

approximately August 11, 2017. Id. at 33-39. The

third round of modifications increased the amount

services to be provided by approximately 80 EEO

cases between approximately 10 subagencies. Id. at

44. The number of modifications caused confusion and

concern amongst some subagencies. I-6 AF, Tab 39

(HR Vol. 1). Furthermore, as of August 22, 2017,

PPAD had not received approximately 22 executed

IAA modifications or, therefore, the corresponding

reimbursable budget authority. I-3 AF, Tab 37 at 4546.

The appellant also had difficulty completing other

tasks assigned. For example, on July 10, 2017, OCFO

emailed agency management control officers

(including the appellant) directing them to upload

their FY 2017 A-123 Certification Statements in draft

form by July 21, 2017 and in final form by August 18,

24a

2017. I-3 AF, Tab 33 at 40-41. On July 20, 2017, the

appellant asked OCFO who in OASCR would sign the

certification and whether it had a copy of the prior

year certification. Id. at 40. OCFO informed her that

Dr. Leonard (then DASCR) signed the prior year, and

attached the FY 2016 certification. Id. at 39-40. The

appellant then forwarded OCFO’s email and the FY

2016 Certification to Scott, with the following

message:

Attached is OASCR FY 2016 certification

signed by Dr. Leonard. We need to submit this

FY certification. The draft statement is due

tomorrow.

Id. at 39. The following afternoon, Scott emailed the

appellant asking “Is the 2017 certification memo

ready to be place in final? Dorothea is here until about

5 today.” Id. at 38-39. The appellant responded:

I am working on the draft Memo and its several

attachments but need until Monday to finalize

it. I have requested for an extension from Kim

Chapman.

Question: Should the memo come from David,

through you, to Lynn Moaney?

Id. at 38. Scott responded it would come from her. Id.

That afternoon, Dorothea Cox provided the appellant

with the sample memorandum. I-3 AF, Tab 34 at 51.

The appellant did not contact Scott further about this

assignment. Id. at 37-38. On September 12, 2017,

Scott emailed the appellant: “Where is the

certification statement? It is two months overdue.” I3 AF, Tab 33 at 37. The appellant responded:

Please refer to the attached email. I sent you

25a

the FY 2016 certificate and mentioned to you

during a meeting that I checked with OCFO

and they confirmed that it should come from

you to Lynn Moaney. I do not have the memo

form in word or the letterhead to prepare this

statement. If Gwen sends me last year’s word

file I can go ahead and work on it.

Id. The appellant attached to her email Cox’s July 21,

2017 email providing her with a sample

memorandum. I-3 AF, Tab 34 at 51. She stated:

In the attached email you were asking me to

use an attached fillable file but it was not. It

was a copy. I requested from Doretha the word

file of the FY 2016 certificate to prepare it but

I got the instructions to prepare a

memorandum, see email below. I mentioned

this to you. I did not have the files to prepare

this certificate. Again, if Gwen or Doretha send

me word file of the FY 2016 memo, see

attached, I can prepare it for you to send it

directly to Lynn.

Id. Following these responses, Scott completed the

task herself. I-6 AF, Tab 39 (HR Vol. 1).

In addition to this issue, on October 2, 2017, Scott

learned the appellant had not made an attorney’s fees

payment of $1,000 required by a grievance

settlement, as she had been previously directed in

July 2017. I-3 AF, Tab 36 at 18-19. Specifically, on

July 19, 2017, the appellant had received the

settlement agreement, signed by Scott, and requested

authority to proceed with the required payment. Id.

at 89. Scott responded: “I have executed the

settlement agreement and it should be processed

26a

accordingly. Please do what is required to provide the

relief stated in the agreement.” Id. The appellant

assigned the task to Davis-Wright, however, DavisWright did not issue the payment. On October 2,

2017, an agency attorney emailed the appellant and

Scott requesting a status on the payment, which still

had not been issued. Id. at 18-19. Scott directed the

appellant to confirm by close of business that day that

the payment had been issued. Id.

During this time period, the appellant continued

to be concerned about what she believed to be

improprieties in how OASCR managed its budget. In

or around June or July 2017, she contacted OIG with

an allegation that OASCR was mismanaging its

funds. The appellant described the contact as

“informal conversations” that increased in detail in

July, August, and September 2017. I-6 AF, Tab 45

and 45 (HR Vols. 4 and 5). The appellant informed

OIG that she wanted to remain anonymous with

respect to these conversations. Id. In August 2017,

during the OCFO financial management conference,

the appellant notified Pirchio that she contacted OIG

about concerns regarding the OASCR budget. Id. The

appellant did not inform Scott of her OIG contacts. Id.

On September 5, 2017, during an all-hands

meeting, the appellant alleges that Scott, when

discussing funding for EEO investigations, looked at

the appellant and said words to the effect “no one is

going to accuse me of an ADA violation.” I-6 AF, Tabs

45 and 47 (HR Vols. 4 and 5); see also I-3 AF, Tab 33

at 156. The following day, the appellant requested to

meet with Scott, Perry, and Pirchio to “discuss the

current availability of appropriated funds.” I-3 AF,

Tab 28 at 98. Following that meeting, the appellant

sent the following email to Pirchio only:

27a

I am concerned with the overall current

situation of the OASCR budget and the recent

(and planned) level of spending by

management

I have (and you too) met with OASCR

management to explain and advice on a

judicious and conservative level of spending

since April. However I don’t see that happening

especially because of management's reliance

[on] the additional funds to come from

reimbursable activities. And I hope that the

advice given by EAD's Director to management

is correct.

At this time, I am just waiting on the final

review of the payroll by Mary Ann to identity

whether we have the so called additional funds

from salaries charged back to reimbursable

activities and freeing up appropriated funds to

cover management's level of spending. I should

have this information for our meeting with

Management tomorrow morning.

I-3 AF, Tab 28 at 98.

Throughout September 2017, PPAD was required

to complete many budget execution and financial

management tasks in order to “close out” the fiscal

year. During that time period, the appellant was in

constant communication with OCFO and OASCR

management with questions and clarifications on the

budget, which she continually projected to be deficient

at year-end. During this time, the appellant

expressed concern about the number of budget

adjustments PPAD was required to make. For

example, on September 28, 2017, the appellant sent

28a

the following email to Scott and Perry:

All of the B2s, 12 or so, totaling almost $1.5

million dollar[s] are definitely a challenge at

the end of the fiscal year. This is definitely

something that needs to improve in the next

fiscal year. We should not need to be

correcting the funding sources as much as

we are trying to do. This is a red flag during

any audit. We can work in the upcoming fiscal

year to do things differently.

In the meantime, I am trying to send the

corrections for the Panum contract you

requested Kirk ($90K) and also the recoup

of $250K used in EID shared, Dianne is

working on this. Without these corrections we

cannot do other B2s.

I-3 AF, Tab 28 at 105. As of September 30, 2017,

OASCR did not have a negative year-end balance.

I-6 AF, Tab 39 (HR Vol. 1).

On October 17, 2017, during a mandatory

OASCR management meeting, the appellant raised

concerns to Scott that OASCR had to be more

judicious in its spending to avoid overspending or

unauthorized commitments. I-6 AF, Tabs 45 and

47 (HR Vols. 4 and 5).

On or about October 20, 2017, Scott completed

her draft of the appellant’s year-end FY 2017

performance evaluation and rated her as

Unacceptable in the Mission

Results

and

Communications and Customer Service critical

elements. She submitted the draft rating to her

supervisor, Chris Young, a political appointee

serving as the USDA Deputy Chief of Staff, for his

29a

review and concurrence. I-1 AF, Tab 6 at 8. Young

signed the rating on November 15, 2017. Id. Also

on October 20, 2017, Scott provided Young a draft

Performance Improvement Plan (PIP) with the

following note:

Chris – This PIP still needs clearance from

OHRM but gives you background

Gabriella’s deficiencies (performance).

I-1AF, Tab 6 at 9. Shortly thereafter, King was

assigned as the appellant’s direct supervisor and

rater of record. On October 26, 2017, King signed the

appellant’s performance evaluation, which had been

prepared by Scott, as the Rating Official. I-1 AF,

Tab 12 at 40. Scott signed the evaluation as the

Reviewing Official. Id. On October 30, 2017, King

notified the appellant of these changes and issued

her the evaluation signed by he and Scott.

Also on October 30, 2017, King issued the

appellant the PIP Scott had drafted with OHRM.

I-1 AF, Tab 12 at 29. The PIP detailed examples

of the appellant’s unacceptable performance in the

two noted critical elements. Regarding Mission

Results, the PIP listed the following 12 examples:

• Failure to timely and adequately produce the

OASCR budget book: “After several months

you provided a work product which was

unorganized and confusing, it did not resemble

the previous budget books, and was missing

key elements and components of the budget.”

• Failure to promptly pay attorney’s fees

pursuant to a settlement agreement processing

action. This payment was due by July 17, 2017,

but was not paid until late-September 2017,

30a

•

causing a potential breach of the agreement.

Failure to timely create the FY 2017 A-123

Certification document and upload it to

SharePoint as instructed.

Failure to manage budget and other fiscal

responsibilities when, on September 21, 2017,

she was unable to clarify or assist Sypert with

small dollar amounts for 6 180-day initiative

employees’ salary and benefits that remained

in the appropriated budget after transferring

those salaries to the reimbursable budget. She

showed a lack of understanding and confusion

on the matter, and Pirchio had to clear up the

issue instead.

On August 29, 2017, failed to promptly pay

OCIO for application support

Failure to manage IAAs effectively, evidenced

by four modifications needed throughout the

fiscal year, some without clear explanation,

causing confusion and complaints from

subagencies.

On September 14, 2017, she sent an email

regarding FY 2017 closeout that failed to

explain necessary budget adjustments in a

clear manner and indicated her failure to

promptly, efficiently, or effectively manage the

IAA process

Generally administering the IAA process in an

untimely and confusing manner, causing

complaints from Forest Service and other

subagencies. This resulted in OASCR having to

initiate a Rapid Improvement Event (RIE) to

develop clear, concise and consistent

procedures.

Failed to manage the budget adequately when

31a

she learned of an appropriated balance

reduction of $550,000 but failed to provide

OASCR with any meaningful guidance or

suggestions to address the shortfall.

• Held supply requests for months despite

availability of funds. On September 12, 2017,

Scott instructed her to process EID supply

requests and not hold them up.

• Failure to maintain knowledge of the budget

breakdown. Her September 13, 2017 email

regarding estimated payroll was confusing,

contained a negative balance for overtime, and

grossly inflated calculations for projected rent

expenditures.

• Failure to manage the IAA process led to

complaints from the Civil Rights Directors

from FS, FNS, and FSIS, among others.

AF, Tab 12 at 31-33. Regarding Communications and

Customer Service, the PIP listed the following 12

examples:

• January 27, 2017 draft notes to OASCR senior

managers was confusing, had no legend and

was generally deficient

• Failed

offer

well

thought

out

recommendations to prepare solutions for IAA

standard operating procedures

• Failed to actively listen when she requested an

iComplaints demo on July 19, 2017 despite

being told it is extremely confidential

• Failed to update supervisor on status of

outstanding IAAs effectively. Reported in a

staff meeting that all IAAs were processed

when several still outstanding. One senior

manager complained about 11th hour requests

32a

•

for funding from OASCR

Failed to adequately respond to customer

requests when, on April 6, 2017, she failed to

respond to Ayerdi request for status of OIG and

GAO reports

Email responses are often unclear. On April 26,

2017, email regarding Settlement Rules for

Billing Shared Costs incorrectly stated the

number of investigations completed by OASCR

in the past three years, and did not include

important and relevant information in the

email. On March 6, 2017, email regarding

updated FAD numbers for EID IAA was

confusing.

Failed to maintain professional relationships

and interactions with staff. Micromanaged

staff, requested access to their personal emails,

and received several informal complaints about

her management style

Unilaterally changed staff telework days

without discussing with them, causing turmoil

and internal complaints.

Failed to maintain professional relationships

with staff. On September 14, 2017, emails with

Sypert evidenced lack of understanding of basic

budgeting and fiscal responsibilities of her

position, leading Sypert to express that she was

unsure of what your goal was.

Excessively relied on Pirchio for guidance on

her duties, to include phone calls, emails, and

unscheduled in person meetings

Failed to inform supervisor or OGC of a

sensitive payment mistake she made regarding

the settlement agreement fees payment,

causing inefficiencies

33a

• Received complaints from OASCR peer

managers regarding the appellant’s repetitive

and redundant questions, failure to listen with

regard to program needs, and failure to provide

resources.

Id. at 35-37.

The PIP required the appellant to complete certain

tasks

within

the

Mission

Results

and

Communications elements to demonstrate successful

performance. Regarding Mission Results, the

appellant was required to satisfactorily complete the

following tasks:

1. Support the RIE implementation process for

IAA; sign IAA documents within one day of

receipt and file it in the appropriate folder with

no more than one delay

2. Clean up the FY 2015 and FY 2016 prior

billings for reconciliation within 45 days. The

billings must also be verified for accuracy by

OCFO by the end of the PIP period. The project

must be completed timely with no more than

one error.

3. Meet established budget deadlines as assigned

by King or the Office of Budget and Program

Analysis

(Pirchio

and

staff)

without

supervision by OCFO without more than one

timeliness lapse. Keep King apprised of

projected delays and provide him with a course

of action or options to resolve delays.

4. Submit a weekly report detailing her plan for

accomplishing tasks, progress made on tasks

and projected deliverables.

AF, Tab 12 at 33. Regarding Communications, the

34a

appellant was required to satisfactorily complete the

following tasks:

1. Acknowledge and resolve all emails within one

calendar day unless instructed otherwise.

Email responses must be accurate and in

compliance with applicable regulations or

SOPs.

2. Communicate in a professional manner with

staff, contractors, and other agency officials.

3. Timely respond to all staff concerns, normally

within one workday, copying King on the

response.

4. Institute staff work plans in order to equitably

manage PPAD workload

5. Encourage staff to utilize the open door policy

to address their chain of command

6. Promote teamwork and collaboration in the

accomplishment of PPAD operations.

Id. at 37.

The PIP was scheduled to run for 60 days, through

December 30, 2017, after which time King would

evaluate her performance. The PIP warned the

appellant that failure to improve her performance to

the fully successful level may result in her

reassignment, reduction in grade, or removal from

Federal service. I-1 AF, Tab 12 at 37. King stated that

he would make himself available to the appellant at

least weekly to discuss her progress, inform her of any

performance-related problems he becomes aware of,

and answer any questions she has regarding her

performance. Id. at 38. He further stated they would

have bi-weekly performance counseling sessions,

during which he expected the appellant to provide a

roadmap tracking the status of her tasks and

35a

deliverables. Id. He directed the appellant to

immediately contact him with any questions or

concerns about the performance expectations. Id.

Finally, he directed the appellant to notify him of any

training needs she had within 10 days of receipt of the

PIP, identifying a specific training she believes would

assist her to successfully perform her tasks. Id. He

also encouraged her to continue working with any

appointed mentor and to notify him if one had not

been appointed, as well as her intent to address that

issue and how he could assist her. Id. King attached

to the PIP the appellant’s Position Description and

her FY 2017 Plan.

Throughout the PIP period, King and the

appellant met for bi-weekly performance counseling

sessions, with the exception of two occasions due to

scheduling conflicts. I-6 AF, Tabs 43-47 (HR Vols. 35). At each session, the appellant provided King with

her weekly report and the status of each PIP task. The

appellant also maintained a master chart tracking

the weekly progress reports and the status of the PIP

tasks. See generally, I-6 AF, Tab 27 at 7-9. In lateDecember 2017, the appellant took leave pursuant to

the Family and Medical Leave Act (FMLA) into

January 2018. On January 16, 2017, King notified the

appellant that, due to her approved FMLA leave, her

PIP would be extended from December 30, 2017 to

January 22, 2018. I-1 AF, Tab 12 at 28. Accordingly,

the appellant’s PIP concluded on January 22, 2018.

Id. at 27. On January 29, 2018, King notified the

appellant “I anticipate completing my part of the

process this week and forwarding it to the deciding

official.” Id.

36a

The appellant’s demotion

On April 4, 2018, King issued the appellant a

Notice of Proposed Removal for Unacceptable

Performance. I-1 AF, Tab 8 at 13. Therein, he stated

the appellant failed to improve her performance to the

fully successful level in the Mission Results and

Communications critical elements during her PIP.

For Mission Results, King determined the

appellant failed to support the RIE, failed to timely

reconcile the FY 2015 and FY 2016 billings, and twice

failed to provide him weekly reports. Id. at 13-14.

Regarding the RIE, King determined she “conveyed a

general resentment towards the RIE process” and

misperceived the role of the RIE and follow-on

Continuous Process Improvement (CPI) Workgroup

as corrections for PPAD deficiencies. Id. at 14. He

further found that she blamed most of the PPAD

deficiencies on her staff, an alleged lack of guidance,

and funding issues. Id. Regarding the prior FY

billings, King determined she did not accurately

reconcile the billings as directed. Id. He noted that

only minimal progress was made and for the wrong

years (FY 2013 and FY 2014). He further noted that

the appellant failed to utilize all available staff to

work on the project. Id. Regarding the

Communications element, King determined the

appellant failed to institute appropriate staff work

plans, failed to communicate in a professional

manner, and failed to encourage the open-door policy

amongst her staff. I-1 AF, Tab 8 at 14-17. The

proposal informed the appellant of her right to reply

orally, in writing, or both and to furnish evidence in

support of the reply. Id. at 17-18. It further notified

her of her right to representation and to a reasonable

37a

amount of official time to prepare her response to the

proposal. Id.

On April 10, 2018, the parties executed a

settlement agreement providing that, in lieu of the

proposed removal, the agency would reassign the

appellant to the position of Senior Program Analyst,

GS-14, in the Financial Policy and Planning Division

of the OCFO. I-6 AF, Tabs 25 and 31 (Stipulations).

The agreement was thereafter effectuated. However,

on November 7, 2018, the EEOC Office of Federal

Operations (OFO) issued a decision finding that, on

April 17, 2018, the appellant had revoked the parties’

agreement. I-1 AF, Tab 7 at 68-74. The decision

directed the agency to return the appellant to the

status quo prior to effectuating the agreement. Id.

Pursuant to the OFO decision, on March 14, 2019,

the agency reassigned the appellant back to her

former Supervisory Program Specialist position and

placed her on paid administrative leave pending

reissuance of the notice of proposed removal. I-1 AF,

Tab 7 at 65-67. On March 19, 2019, King notified the

appellant that the April 4, 2018 Notice of Proposed

Removal was reinstated, effective the following day.

I-1 AF, Tab 7 at 63; see also I-1 AF, Tab 8 at 13. He

further informed the appellant of her right to reply

orally and/or in writing to the proposal within 10

calendar days. Id. at 63-64.

Following discussions between the OSC and the

agency’s Office of the General Counsel (OGC) related

to the appellant’s pending OSC complaint, Mary

Pletcher-Rice, Chief Human Capital Officer (CHCO),

was designated as the deciding official for proposed

removal. I-6 AF, Tab 43 (HR Vol. 3). On April 19, 2019

and April 25, 2019, the appellant, through counsel,

submitted her written and oral responses to the

38a

proposal, respectively. I-1 AF, Tab 7. On May 22,

2019, HR Specialist Matthew Green emailed the

appellant to notify her of additional information

Pletcher-Rice was considering in relation to the

proposed removal. I-1 AF, Tab 6 at 7. Green

referenced the appellant’s allegation in her response

that King should not have served as her rating official

for FY 2017, and stated the following:

Ms. Scott was the first line supervisor for Ms.

Bolanos Reynoso from October 30, 2016

through September 30, 2017. Mr. David King

was detailed to temporarily replace Ms. Scott

as the first line supervisor for her direct reports

while Ms. Scott was temporarily elevated to the

Assistant Secretary for Civil Rights. During

this transition, Mr. King and Ms. Scott

regularly conferred regarding the performance

of all the direct report employees that were

transitioned to Mr. King. There was no political

head of the Office of the Assistant Secretary for

Civil Rights (OASCR) appointed at that time to

assume the role of reviewing official.

Accordingly, it was decided not to burden the

political leadership outside OASCR with

reviewing the performance of these employees.

Ms. Scott and Mr. King transitioned their roles

as reviewing and rating officials respectively to

keep the ratings within OASCR. Ms. Scott

signed another copy of Ms. Bolanos Reynoso’s

performance appraisal as the rating official

and sent it to then Deputy Chief of Staff, Chris

Young. This rating of record advised Mr. Young

of Ms. Bolanos Reynoso’s performance

deficiencies. Mr. Young signed as the reviewing

official on November 15, 2017. The employee

39a

was not given a copy of this rating during the

transition to Mr. King’s supervision, and Mr.

King monitored her performance during the

performance improvement plan. For the

purposes of Agency records, Ms. Scott, Mr.

Young, and Mr. King all signed performance

rating documents that indicate notice and

knowledge of the employee’s performance

deficiencies. No interim rating was required.

Id. Green attached to the email the referenced

November 15, 2017 performance plan signed by Scott

as the appellant’s rating official, as well as a draft

copy of the appellant’s PIP that Scott sent to Young

for background information. Id. at 8-14. Green

provided the appellant the option to submit an

additional written response to the new information no

later than May 30, 2019. Id. at 7. On May 30, 2019,

the appellant, though counsel, submitted a written

response to Green’s email. I-1 AF, Tab 5 at 29.

On September 5, 2019, Pletcher-Rice issued a

decision letter sustaining the charge of unacceptable

performance but mitigating the penalty to a reduction

in grade and reassignment from the GS-15 PPAD

Director position to a GS-13 Management Analyst

position within PPAD. I-1 AF, Tab 5 at 24. PletcherRice stated in the decision that she reviewed all

evidence regarding the proposal and the information

the appellant provided in response thereto. She found

the appellant failed to raise her performance to an

acceptable level at the conclusion of the PIP. Id. at 24.

Accordingly, the appellant was demoted and

reassigned, effective September 29, 2019. Id. at 22,

24. The appellant timely appealed her demotion. AF,

Tab 1.

40a

Procedural History

On November 20, 2017, the appellant filed a

complaint of whistleblower reprisal with the Office of

Special Counsel (OSC), identified as MA-18-0913. W1 AF, Tab 6 at 7-20. Therein, she alleged she made

disclosures to several management officials regarding

her belief that OASCR was engaging in various

improper spending and contractual practices. Id. at

10, 11. She alleged that, in retaliation for her

disclosures, the agency subjected her to harassment

in the form of refusal to provide training and

equipment for a reasonable accommodation; placed

her on a Performance Improvement Plan (PIP); issued

her an Unacceptable performance rating; and failed

to timely approve her leave requests. Id. at 11. On

April 5, 2018, the appellant supplemented her OSC

complaint to include the proposed removal. W-1 AF,

Tab 7 at 24. On November 23, 2017, the appellant also

filed a Disclosure with OSC, identified as DI-18-0945,

alleging OASCR engaged in financial improprieties.

Id. at 5-13.

On October 4, 2019, the appellant timely filed an

adverse action appeal regarding her demotion and

raised therein an allegation of whistleblower reprisal.

AF, I-1 Tab 1. On December 19, 2019, this office

separately docketed an IRA appeal at the appellant’s

request regarding MA-18-0913, as more than 180

days had passed since she filed the complaint.5 WAF1, Tab 1. On March 29, 2022, I issued an “Order

Finding IRA Jurisdiction, in Part,” wherein I

On March 6, 2020, OSC issued the appellant a letter informing

her that it terminated its inquiry into her complaint and would

not take further action. WAF-1, Tab 9 at 6-7.

41a

determined the appellant made a nonfrivolous

allegation that she made protected disclosures of

financial improprieties in April, May, and June of

2017, and that she engaged in protected activity

and/or made a protected disclosure when she

contacted the OIG in July 2017.6 I further found she

made a nonfrivolous allegation that her disclosures

and/or activity was a contributing factor in her

October 30, 2017 Unacceptable Performance rating,

PIP, and the April 4, 2018 proposed removal.7 Id.

On April 27, 2022, the appeal was dismissed without prejudice

following the agency’s motion challenging the validity of AJ

appointments, citing Lucia v. Securities & Exchange

Commission, 138 S. Ct. 2044 (2018). See W-2 AF, Tab 13. On

March 16, 2022, the appeal was reassigned to me following the

Board’s ratification of AJ appointments. W-5 AF, Tabs 2 and 5.

On March 25, 2022, I informed the parties that I would make an

independent determination of Board jurisdiction and permitted

the parties to supplement their prior jurisdictional pleadings

with any additional claims and arguments. W-5 AF, Tabs 7 and

8. The parties both filed supplemental jurisdictional pleadings.

W-5 AF, Tabs 11-13.

I found the appellant failed to make a nonfrivolous allegation

that she engaged in protected activity under 5 U.S.C. §

2302(b)(9)(D) on the grounds that she did not allege she refused

any particular order issued, or that her EEO complaint

constitutes protected activity under 5 U.S.C. § 2302(b)(9)(A)(ii).

I-6 AF, Tab 15 at 9-11. I also found she failed to make a

nonfrivolous allegation that she was subjected to a significant

change in duties, responsibilities, or working conditions based

on her allegation of a hostile work environment. Id. at 11-13.

Finally, I found the appellant failed to make a nonfrivolous

allegation that either Scott or King were aware of her OSC

complaint prior to the alleged personnel actions and,

accordingly, it could not have contributed to those actions. Id. at

16-18. Accordingly, I do not address those claims further herein.

42a

On May 26, 2023, I issued an Order Joining Cases for

Processing, wherein I joined the appellant’s adverse

action and whistleblower appeals due to the

interrelatedness of the facts and issues presented in

both. I-6 AF, Tab 16. Pursuant to that joinder, on

August 8-10, 2022, I held the requested hearing,

during which the parties addressed all issues raised

in both appeals. The records of her appeals are now

closed and ripe for a decision on the merits.

Whistleblower Appeal DC-1221-20-0317-W-5

To establish an affirmative defense of

whistleblower reprisal, the appellant must prove by

preponderant evidence: (1) she made a protected

disclosure under 5 U.S.C. § 2302(b)(8) or engaged in

activity protected by 5 U.S.C. § 2302(b)(9)(A)(i), (B),

(C), or (D); and (2) it was a contributing factor in the

personnel action(s) being appealed. A “Protected

Disclosure” is defined as any disclosure of information

that the employee “reasonably believes evidences (i)

any violation of any law, rule, or regulation, or (ii)

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). 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). LaChance v. White, 174 F.3d 1378,

1381 (Fed. Cir. 1999); Chavez v. Department of

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

protected disclosure includes disclosures of such

information to the Special Counsel, or to the Inspector

43a

General of an agency or another employee designated

by the head of an agency to receive such disclosures.

5 U.S.C. § 2302(b)(8)(B). Additionally, “Protected

Activity” includes “cooperating with or disclosing

information to the Inspector General of an agency, or

the Special Counsel, in accordance with applicable

provisions of law.” 5 U.S.C. § 2302(b)(9)(C).

The appellant need not prove that one or more of

these types of wrongdoing actually existed; rather,

the appellant must show that the matter disclosed

was one which a reasonable person in his position

would believe evidenced any of the situations

specified in 5 U.S.C. § 2302(b)(8). Garst v. Department

of the Army, 60 M.S.P.R. 514, 518 (1994). However, a

protected

disclosure

does

not

include

“a

communication concerning policy decisions that

lawfully exercise discretionary authority” unless the

employee also reasonably believes that the

communication evidences any situation specified in 5

U.S.C. § 2302(b)(8). 5 U.S.C. § 2302(a)(2)(D).

An appellant may show a protected disclosure

and/or protected activity was a contributing factor in

her removal by establishing the “knowledge/timing

test” – i.e., that the official taking the action knew of

the disclosures and took the action within a period of

time such that a reasonable person could conclude

that the disclosure was a contributing factor in the

personnel action. See, e.g., Strader v. Department of

Agriculture, 475 Fed. App’x 316, 321 (Fed. Cir. 2012).

If the appellant fails to satisfy the “knowledge-timing”

test, the Board will consider any relevant evidence on

the contributing factor question, including the

strength or weakness of the agency’s reasons for

taking the personnel action, whether the

whistleblowing or activity was personally directed at

44a

the responsible officials, and whether those

individuals had a desire or motive to retaliate against

the appellant. Rumsey v. Department of Justice, 120

M.S.P.R. 259, ¶ 26 (2013).

The appellant failed to prove she made protected

disclosures

The appellant alleges she made protected

disclosures in April, May, and June 2017 regarding

alleged financial improprieties and conflict of interest

violations. WAF-5, Tab 15 at 3. As discussed below, I

find the appellant has failed to establish she had a

reasonable belief that she was disclosing a violation

of law, rule, or regulation with respect to any of her

allegations.

In general, I find the appellant’s testimony not

credible.8 See Hillen v. Department of the Army, 35

M.S.P.R. 453, 458-462 (1987). Throughout both her

direct and cross examinations, her testimony was

To resolve credibility issues, an administrative judge must first

identify the factual questions in dispute; second, summarize all

of the evidence on each disputed question of fact; third, state

which version he or she believes; and, fourth, explain in detail

why the chosen version was more credible than the other version

or versions of the event. Numerous factors, which will be

considered in more detail below, must be considered in making

and explaining a credibility determination. These include: (1)

The witness's opportunity and capacity to observe the event or

act in question; (2) the witness's character; (3) any prior

inconsistent statement by the witness; (4) a witness's bias, or

lack of bias; (5) the contradiction of the witness's version of

events by other evidence or its consistency with other evidence;

(6) the inherent improbability of the witness's version of events;

and (7) the witness's demeanor. Hillen v. Department of the

Army, 35 M.S.P.R. 453, 458-462 (1987).

45a

meandering, confused, internally inconsistent, and

often nonresponsive to the questions being asked. I-6

AF, Tabs 45 and 47 (HR Vols. 4 and 5); see also Hillen,

35 M.S.P.R. at 458-62. She also constantly

equivocated or refused to admit to facts she believed

were adverse to her claims, despite their obvious

veracity. Id. Additionally, I find her testimony

regarding the perceived problems with PPAD duties

and budget activity wholly unreliable. Her suspicions

and conclusions regarding OASCR’s budget

particularly lacked credibility and reliability, as they

were nebulous, unsupported, often nonsensical, and

conflicted with contemporaneous emails. Id. Her

hearing testimony along with the overwhelming

credible evidence of record indicates that the

appellant simply did not understand how to perform

the budget-related duties of the PPAD Director

position and did not have a reasonable basis to believe

she was disclosing any (b)(8)-covered concerns.

Conflicts of Interest

The appellant alleges that, beginning in April

2017, she disclosed to Scott and others that DavisWright’s serving as a COR and also as PPAD Team

Lead could violate conflict of interest rules and

requirements for internal management controls.9

WAF-5, Tab 15 at 3. By way of explanation, the

appellant testified that Davis-Wright should not be

In her jurisdictional response, the appellant alleged DavisWright’s dual role could violate GAO-14-704G Principles 10.03,

10.12, 10.13, and 10.14, as well as OMB Circulars A-11 and A123, which she states are federal rules mandating segregation of

duties to reduce the risk of fraud. WAF-1, Tab 5 at 9.

46a

permitted to both pay invoices regarding the IAA

services and then also later reconcile or supervise

reconciliation of the invoices to the payments logged

in FMMI. I-6 AF, Tab 45 and 47 (HR Vols. 4 and 5).

First, the overwhelming credible evidence of

record establishes that Davis-Wright did not

authorize payment to the contractors. Davis-Wright

credibly testified that, as the COR, she is responsible

for certifying that the invoiced work was performed in

accordance with the contract. I-6 AF, Tab 43 (HR, Vol.

3). Specifically, she testified that she reviews the

invoices uploaded in FMMI and certifies them,

sending them to the Contracting Officer (CO) for

review and approval of payment. Id. She

unequivocally testified that she does not authorize

payment the invoices herself. Id. Her credible

testimony is corroborated by Scott, who also testified

unequivocally that Davis-Wright does not pay the

contractors. I6 AF, Tabs 39, 41 (HR Vols. 1 and 2).

Additionally, Davis-Wright’s COR certification letter

states that she is to “Review invoices, vouchers, and

receiving reports for acceptability to include verifying

that the products and/or services indicated, hours

listed, and any explanation of other direct costs that

define what was received.” I-3 AF, Tab 37 at 12. Both

Davis-Wright and Scott testified that the CO in the

agency’s contracting office gives final approval for the

payment and directs payment of the invoice. I6 AF,

Tabs 39 and 43 (HR Vols. 1 and 3).

By contrast, the appellant’s testimony regarding

this issue was internally inconsistent and confusing

at best. I-6 AF, Tabs 45 and 47 (HR Vols. 4 and 5); see

also Hillen, 35 M.S.P.R. at 458-62. Despite eventually

acknowledging that Davis-Wright did not both certify

the invoices and pay the contractors, she nevertheless

47a

argued that she disclosed a “red flag” to management

regarding separation of duties and “management

controls.” Id. However, she also testified that a “red

flag” indicates only that more research is needed on a

particular transaction, not that a violation of law,

rule, or regulation had necessarily occurred. Id.

Her testimony is also inconsistent with

contemporaneous emails indicating the appellant was

primarily concerned with the large amount of time

Davis-Wright’s COR duties took up. Hillen, 35

M.S.P.R. at 458-62. Throughout the first half of 2017,

the appellant attempted to have the COR duties

shifted from Davis-Wright to other PPAD or Program

Office employees (e.g., EID, EAD). On April 13, 2017,

Scott emailed the appellant a reminder that Sypert is

registered for COR training that month. I-3 AF, Tab

37 at 19. She stated “This will provide [Davis-Wright]

with much needed assistance regarding EID and

Martin Miser contracts.” Id. The appellant responded

immediately: “Thank you Winona. I will coordinate

and ensure [Sypert] takes this training.” Id.

Her efforts continued throughout FY 2017,

primarily focusing on having the COR duties shifted

entirely to the Program Offices that held the

contracts. On August 3, 2017, Scott asked Richard

Jiron, Acting Director of the Office of Procurement

and Property Management (OPPM), “Should the COR

for a particular contract actually work in the program

area where the contract originates (e.g., EID) or can

they be in our PPAD office? Please let me know your

thoughts.” I-3 AF, Tab 37 at 22-23. Jiron responded:

“The important thing is the COR has knowledge of

contract requirements to allow them to provide proper

contract oversight. While it is preferred that they be

part of the program office it is not necessary.” Id. at

48a

22. Scott immediately forwarded his message to the

appellant, which I find indicates she asked the

question at the appellant’s behest. Id. The appellant

responded:

I would like to inform you that Dianne being

the COR for over 10 contracts, including the

EID contract (currently with 6 vendors to

increase by 10 more vendors) takes her away

from fulfilling other essential duties as a team

lead for the division. As you are aware of

invoice review and approval is extremely time

consuming when it involves several vendors.

And with the increase in the number of vendors

for the EID contract Dianne will have a major

overload of invoices that have strict timeframes

for review and approval.

Therefore, I recommend that if the COR

functions are to stay within PPAD, we do one

of the following:

1. Split the contracts Dianne is the COR for

into 3 areas 1. EID Contract; 2. Conflict/ERCD

Contracts; and 3. OASCR Contracts. This will

require for PPAD personnel to take the

required training and get designated by OPPM

as COR. Each of the designated CORs will have

to coordinate/track with OASCR managers the

BPAs funding; OR

2. Hire or re-assign someone (preferably

someone who is already a COR) within OASCR

to be the COR for these contracts. This

person(s) will coordinate/track with OASCR

managers the BPAs funding.

I-3 AF, Tab 37 at 21. The appellant identified this

49a

email as one of her disclosures of a conflict of interest.

However, it is clear from the face of the email and also

the context that she did not raise any such issues

here. Id. Rather, she sought to simply split the duties

up amongst PPAD employees to, again, lighten DavisWright’s load. Id.

Finally, the appellant also testified that she had

“heard”

OASCR

had

made

unauthorized

commitments in the past and warned Scott that she

believed the failure to have clear “segregation of

duties” regarding COR responsibilities could lead to

more unauthorized commitments. I-6 AF, Tabs 45

and 47 (HR Vols. 4 and 5). She testified that OASCR

had to “start looking at functions and ensuring

invoices paid and invoices actually assessed by

program managers” to ensure the service was actually

received. Id. She failed, however, to establish that the

prior violations she had heard about were at all

related to the issue she raised about Davis-Wright’s

duties.

The appellant questioned Scott during the hearing

about a 2015 OIG report finding that OASCR made

improper payments of over $2 million pursuant to

improper contracts. I-6 AF, Tab 39 (HR Vol. 1). The

report, OIG Audit Report 50099-0001-12, issued

September 14, 2015,10 determined that OASCR

entered into unauthorized contracts with 10 vendors

between FY 2009 and FY 2013 because it did not use

The report is publicly available and discussed at length during

the hearing. Therefore, I take official notice thereof. See 5 C.F.R.

§ 1201.64.

50a

a warranted CO to make the contract.11 12 See

www.oversight.gov/sites/default/files/oig-reports/

50099-0001-12.pdf (“2015 OIG Report”). The

contracts were therefore unauthorized commitments

and the payments totaling $704,000 made thereunder

were improper. Id. at 2. OIG further found that

OASCR made 130 payments, totaling over $1.94

million, for which it could not provide adequate

documentation of the contract under which the

payments were made. Id. Those payments were

therefore also deemed to be improper due to the lack

of documentation.13 Id. Scott confirmed these were

the general findings of the report and testified that it

indicated the former OASCR leadership did not

understand how to correctly document its contract

activities. I-6 AF, Tab 30 (HR Vol. 1).

I find the appellant’s testimony and reference to

the OIG findings lends little weight to her allegation

that she had a reasonable belief Davis-Wright’s duties

An agency can obligate funds pursuant to a contract only

“when there is supporting evidence of a binding agreement

between the agency and another party.” See 2015 OIG Report at

Though not cited as a violation, OIG also warned that OASCR

could not provide adequate support for two General Ledger (G/L)

adjustments totaling $834,000” “because OASCR had not

established appropriate internal controls over G/L adjustments.”

See OIG 2015 Report at 7. However, OIG stated that, in March

2015, “OASCR established internal control procedures for G/L

adjustments in compliance with internal agency regulations. Id.

at 9.

OMB Circular A-123 defines improper payments as those in

which the agency is “unable to discern whether a payment was

proper as a result of insufficient documentation.” See 2015 OIG

Report at 2.

51a

violated law, rule, or regulation. There is no

indication that the appellant believed or disclosed

that the vendor contracts during her tenure were

improperly entered into without authority. Nor does

this or any other of the OIG’s findings relate in any

way to the alleged conflict of interest. See generally,

2015 OIG Report. I find the appellant’s confusing and

inconsistent testimony at best evidences her lack of

basic understanding PPAD’s role in the IAA contract

process. I credit Scott and Pirchio’s consistent

testimony that the PPAD Director should have had a

better understanding of the IAA process and would

not reasonably have believed Davis-Wright’s duties

were problematic. AF, Tabs 39 and 43 (HR Vols. 1 and

3). I find, based on the overwhelming, credible

evidence of record, that neither the appellant nor any

reasonable person in her position would have

reasonably believed she was disclosing a violation of

law, rule, or regulation with respect to Davis-Wright’s

duties.

Financial Improprieties and ADA Violations

The appellant also alleged that she repeatedly

disclosed violations of law, rule, or regulation when

she notified Scott and Pirchio of “budgetary and

appropriations problems in OASCR that could

potentially violate the Anti-Deficiency Act and USDA

regulations.” WAF-5, Tab 11 at 6. She alleges that she

“continued to raise concerns about negative cash

balances that meant that contract commitments could

not be honored, and there were appropriations law

violations.” Id. Her disclosures can generally be

summarized as notifications that the OASCR budget

was continually projecting a deficit that could lead to

an ADA violation, and that OASCR management was

52a

inappropriately

shifting

expenses

between

appropriated and reimbursable funding sources to

cover the deficiencies. I find the appellant failed to

establish that she had a reasonable belief that was

disclosing a law, rule, or regulation regarding any of

these communications.

As set forth above, the appellant’s status of funds

reports containing negative balances repeatedly

omitted the expected reimbursable funds OASCR was

due to receive pursuant to its IAAs, despite Scott’s

repeated requests to report these expected receipts as

well. Her communications based on these faulty

projections evidence that she failed to internalize that

tracking IAA modifications and receipts was essential

to balancing the OASCR budget. For example, as late

as September 14, 2017, the appellant emailed Scott:

After our meeting with OCFO in regards to the

appropriated funds and year-end activities, I

tried to locate these in the OASCR procedure(s)

in the OASCR manual and found nothing. So I

asked Dianne and Sequana to provide a listing

of what they have done in the past for closing

out the fiscal year, see below the input from

Dianne and in the attached email Sequana’s.

However none of the activities they provided

include a review of FY 2017 interagency

agreements/ purchase orders (POs) where

funding might still be available but committed

or set aside in the financial system. I'll develop

an SOP for PPAD’s year-end activities. For now

I've given the team specific steps to complete

the activities starting today and I'll be

coordinating these with OCFO closely.

The good news of this is that we might identify

53a

funding that can still be put to use and/or

reduce our deficit. I just don't know how much

at this point.

I-3 AF, Tab 33 at 157. Less than two weeks before the

end of the fiscal year, the appellant essentially states

that she did not know her team had to track IAAs to

ensure OASCR received the appropriate amount of

reimbursable funding.14 I find no logical reason for

her failure to understand why this was necessary. The

appellant’s failure to ensure proper tracking of the

IAA funds created a flurry of chaotic activity at the

end of the fiscal year to modify the IAAs, and led to

Scott counseling the appellant regarding her “11th

hour” efforts to obtain the funds. See, e.g., I-3 AF, Tab

34 at 38. Her exchanges with Scott, Perry, and OCFO

staff reflect her lack of understanding of the IAA

process and further support the conclusion that her

deficient budget projections were simply not

reasonable for a person in her position. The evidence

overwhelmingly establishes that her unjustifiable

failure to factor outstanding reimbursable funds into

her status of funds report was the reason she

continually projected negative year-end balances and

potential ADA violations. I therefore find the

appellant failed to establish a reasonable belief that

she was disclosing a violation of law, rule, or

The appellant is also factually incorrect. Though she reports

that neither Janifer nor Davis-Wright assessed projected IAA

funds as part of their year-end activities, Davis-Wright’s

attached activity list includes ensuring all reimbursable funds

are loaded “from the latest Mods” and obligated as required. I-3

AF, Tab 33 at 158. This is consistent with Pirchio and Scott’s

testimony that PPAD staff, unlike the appellant, knew what

they were doing.

54a

regulation with these projections.

The appellant also failed to establish that she

reasonably believed OASCR was improperly moving

expenses between appropriated and reimbursable

funds during this time period. On September 28,

2017, the appellant exchanged emails with Scott and

Perry regarding various B2 transactions and other

corrections to the budget. She expressed confusion

over the transactions and stated:

All of the B2s, 12 or so, totaling almost $1.5

million dollar are definitely a challenge at the

end of the fiscal year. This is definitely

something that needs to improve in the next

fiscal year. We should not need to be correcting

the funding sources as much as we are trying

to do. This is a red flag during any audit. We

can work in the upcoming fiscal year to do

things differently. In the meantime, I am

trying to send the corrections for the Panum

contract you requested Kirk ($90K) and also

the recoup of $250K used in EID shared,

Dianne is working on this. Without these

corrections we cannot do other B2s.

I-3 AF, Tab 35 at 21. The appellant testified that this

email disclosed to Scott and Perry red flags of

unauthorized commitments and ADA violations. I-6

AF, Tabs 45 and 47 (HR Vols. 4 and 5). I find,

however, that her email on its face, as well the context

of the B2s, indicates the appellant did not have a

reasonable belief this disclosed a (b)(8)-covered

situation. Though the appellant references “red flags”

for an audit, she states only that the process should

be different the following year, not that the

corrections were impermissible. At best, her email

55a

depicts her disagreement with the frequency and

timing of the adjustments rather than a legal concern

about

the

adjustments

themselves.

Such

disagreements are not protected disclosures under

the WPA. See 5 U.S.C. § 2302(a)(2)(D); see also

McCorcle v. Department of Agriculture, 98 M.S.P.R.

363, ¶ 24 (2005).

Regardless, Scott and Pirchio credibly testified

that

OASCR

employees

were

conducting

reimbursable work, such as writing FADs for the

subagencies, and the appellant has failed to present

any credible evidence rebutting that testimony. She

testified that the transactions were inappropriate

because she believed Scott and Perry were facetiously

claiming that certain employees worked on

reimbursable projects in order to “put money back

into” the appropriated fund, i.e. augmenting the funds

in violation of the ADA. I-6 AF, Tabs 45 and 47 (HR

Vols. 4 and 5). Her testimony relates to an instance in

September 2017 in which PPAD discovered that the

wrong employee’s salary had been charged to

reimbursable funds under the 180-Day EEO

Initiative. As the contemporaneous emails reflect,

Dona Marshall was detailed to the 180-Day Initiative

but the agency charged Donna Carter’s salary to the

reimbursable fund instead. See I-3 AF, Tab 34 at 8590. Dona Marshall’s salary for that time period was

erroneously charged to appropriated funds. Id. To

correct this, PPAD staff were directed to adjust the

billing codes on both employees’ timecards to reflect

Donna Carter’s salary billed to the appropriated

funding code and Dona Marshall’s to reimbursable.

Id.

The appellant insinuated that Scott and Perry’s

correction was an attempt to cover up their illegal

56a

actions. I-6 AF, Tabs 45 and 47 (HR Vols. 4 and 5).

She testified that the PPAD staff also tried to cover it

up because they were loyal to Scott and “would do

anything” for her. Id. Again, I find no reasonable basis

for the appellant’s conclusions nor did the appellant

provide any credible evidence supporting her claims.

The contemporaneous emails of record addressing

this issue clearly establish that Scott and Perry were

correcting a simple mistake. I-3 AF, Tab 34 at 85-90.

Based on the clear evidence of record, I find her

conclusion does not indicate a reasonable belief that

she was disclosing (b)(8)-covered wrongdoing.

The appellant also failed to competently explain

why she believed OASCR could not obligate expenses

against its appropriated budget until sufficient IAA

funds were obtained. I-6 AF, Tabs 45 and 47 (HR Vols.

4 and 5). Her testimony on this issue was confused,

scattered, and generally conclusory without

reasonable support. Id. Again, her testimony

evidenced her lack of understanding of the budget

process rather than any reasonable belief she was

disclosing wrongdoing. Id.

By contrast, I find credible Scott and Pirchio’s

testimony that it was entirely permissible to use any

available OASCR funding, whether appropriated or

reimbursable, to pay reimbursable invoices pending

additional IAA receipts. I-6 AF, Tabs 39 and 43 (HR

Vols. 1 and 3). They consistently explained that the

two sources of funding were part of the single OASCR

budget and thus could be used for appropriate

expenses, provided the full amount of reimbursable

funding was received from the subagencies by the end

of the fiscal year. Id. This involved balancing the

amounts of reimbursable activity being charged

against the appropriated balance with the amount of

57a

reimbursable funds OASCR would receive through

subagency IAAs and modifications thereto. Id. As

Pirchio explained, PPAD modified IAAs to account for

expenses in excess of the original estimates. Id. PPAD

thus ensured the IAAs covered the full amounts

OASCR expended on reimbursable activities and,

therefore, that OASCR would receive the correct

amount of reimbursable funds from the subagencies

before the end of the fiscal year. Id. Pirchio repeatedly

affirmed during questioning that this was permissible

and unequivocally testified that a competent PPAD

Director should have understood how appropriated

and reimbursable funds operated together within the

OASCR budget given the nature of its mission. Id.

Pirchio’s testimony was clear and consistent and,

as the OCFO Budget Director for staff offices, I find

he was competent to explain these matters. I-6 AF,

Tab 43 (HR Vol. 3); see also Hillen, 35 M.S.P.R. at 45862. I further find that he was personally aware of the

bulk of the appellant’s questions and requests for

assistance, as he and his staff were providing budget

execution assistance to PPAD in FY 2017. Id. I

therefore weigh his testimony more heavily than the

appellant’s in determining she did not have a

reasonable belief that she was making protected

disclosures. Id. Pirchio testified that the appellant did

not have the budget skills to be competent in the

PPAD Director position and had not gained those

skills before the agency reassigned her. I-6 AF, Tab

43 (HR Vol. 3). His testimony was reasonable,

unexaggerated, and supported by specific occurrences

during the relevant time period. Id.; see also Hillen,

35 M.S.P.R. at 458-62. For example, on September 13,

2017, the appellant requested Pirchio assist in

figuring out why the OASCR budget had a “negative

58a

balance” of over $25,000 for overtime when OASCR

paid only $647 of overtime that year. See I-3 AF, Tab

34 at 81-82. Pirchio responded that the higher

number was only the plan amount and could be

adjusted up or down. Id. at 81. He therefore

recommended adjusting it down to $1,000. Id. Pirchio

and Scott both testified that the appellant, as

OASCR’s top budget official, should have understood

the difference between a plan amount and an actual

expenditure. I-6 AF, Tabs 39 and 43 (HR Vols. 1 and

3). Pirchio also credibly testified that he had to

repeatedly explain to the appellant that fully

transferring employee salary expenses required two

B2 transactions due to a glitch in FMMI. I-6 AF, Tab

43 (HR Vol. 3). His testimony is consistent with

several emails exchanged in September 2017

indicating the appellant’s negative budget projections

reflected that she had not fully transferred employee

salary expenses to the reimbursable fund despite

having completed these transactions several times

prior to this instant. See, e.g., I-3 AF, Tab 37 at 22.

Pirchio further testified that the appellant did not

appear to understand budget figures and calculations.

I-6 AF, Tab 43 (HR Vol. 3). He pointed to a

particularly confusing email exchange on September

28, 2017, wherein the appellant shifted various large

budget figures around the status of funds report

without any apparent understanding as to what they

represented. I-3 AF, Tab 33 at 59-61. His testimony is

consistent with Scott’s perception that the appellant’s

status of funds and budget projections were

frequently incorrect or unclear. As discussed above,

emails throughout September 2017 evidence the

appellant’s failure to provide accurate budget

information to OASCR senior managers. This

59a

culminated on September 28, 2017 with Scott’s

admonishment to the appellant:

This is unacceptable. This office has never been

in a situation where we did not know what our

spending capabilities are -especially one day

before the close of the FY.

I-3 AF, Tab 35 at 63. I find the appellant’s confusion

and inability to produce accurate budget reports

evidences her lack of understanding of the budget

process, nearly a year into her tenure as PPAD

Director, and supports the conclusion that her alleged

disclosures of potential deficiencies were not

reasonably held.

As support for her allegations, the appellant

testified that, in July 2017 she “learned through her

acquaintances” that the General Accountability Office

(GAO) was inquiring as to whether OASCR

inappropriately

augmented

its

2016

appropriations. I-6 AF, Tabs 45 and 47 (HR Vols. 4

and 5). She testified she understood that to mean

GAO was concerned OASCR was inappropriately

adding money to its appropriated funds. Id. The

appellant testified that she believed modifying

employee timecards was inappropriately augmenting

appropriations and appeared “one to one” with what

the GAO was investigating.

The referenced GAO inquiry addressed USDA’s

Office of Civil Rights (OCR), Rural Development (RD),

and Food and Nutrition Service (FNS) subagencies

funding the salaries of one or more employees in the

respective subagencies’ executive office (i.e. OCR

appropriations paid the salary of one or more OASCR

employees). I-3 AF, Tab 30 at 27. The report, which

the appellant testified she had read “later,” was

60a

issued on September 26, 2017, well after she began

having concerns. Id.; see also I-6 AF, Tabs 45 and 47

(HR Vols. 4 and 5). However, USDA’s Associate

General Counsel (AGC), submitted a response to the

GAO’s request for information on April 6, 2017,

during the appellant’s PPAD tenure. I-3 AF, Tab 30

at 27-28. It is therefore plausible the appellant was

aware at least generally of the issues raised by the

GAO.

In its response to the GAO, USDA admitted that

the leadership office employees were performing their

regular duties rather than work falling under the

subagency’s broader mission. I-3 AF, Tab 30 at 27-28.

However, it argued the practice had been ongoing as

far back as FY 2012 and done openly, in that it was

reported to the House Committee on Appropriations

on several occasions without response. Id.

Nevertheless, in its September 2017 legal opinion, the

GAO determined USDA violated the purpose statute

in FY 2015 and FY 2016 by improperly augmenting

the appropriations of the leadership offices with

appropriations of its parent subagency. Id. at 34. The

GAO advised USDA to adjust the expenditures to be

charged against the correct office’s appropriations. Id.

The GAO further stated that, should the leadership

office’s appropriated funds be insufficient to cover the

adjusted expenses, USDA should report it as an ADA

violation. Id.

I find the GAO inquiry and the appellant’s

knowledge thereof fails to support her allegation that

she had reasonably believed OASCR was violating the

law at the time of her disclosures. The appellant

admitted that she was not an appropriations law

expert, and that she had only heard about this issue

from her OCFO liaison, Sonya Ayerdi, and the “GAO

61a

team” in the OGC Appropriations Law division. I-6

AF, Tabs 45 and 47 (HR Vols. 4 and 5). I find a

reasonable person in the appellant’s position would

have understood the difference between GAO’s

concern (employees paid by an office’s appropriations

for which they did not perform work) and OASCR’s

charging the salaries of employees who were actually

detailed to reimbursable work to subagencies

receiving that service. The appellant’s testimony that

she was seeing a “one to one” comparison between the

two situations is simply not reasonable.

The appellant also referred back to the 2015 OIG

Report as support for her belief that the IAA

modifications constituted unauthorized commitments

and that OASCR was inappropriately comingling

funds. The appellant’s testimony was neither detailed

nor coherent in this regard. See generally, I-6 AF,

Tabs 45 and 47 (HR Vols. 4 and 5). Rather, she

appeared to conflate all of OASCR’s budget practices

under the headings of unauthorized commitments

and ADA violations without any logical explanation.

Id. The appellant’s allegations regarding the B2

transactions between appropriated and reimbursable

expenses were wholly unrelated to the concerns

addressed by the either the OIG or GAO. She did not,

for example, allege any IAAs or vendor contracts were

improperly entered into by an unwarranted

employee. Nor did she alleged that OASCR otherwise

lacked documentation supporting its contractual

payments to vendors performing reimbursable

activities. During her testimony, the appellant

referenced a May 2017 exchange between OASCR,

OCFO and OGC regarding the timing of signatures on

IAA modifications. See I-3 AF, Tab 27 at 128-46.

Though it is unclear whether the appellant alleges

62a

that issue supports her allegation that she had a

reasonable belief in her disclosures, I find it does not.

On or about May 25, 2017, Pirchio informed the

appellant that she should increase IAA sales orders to

equal the amounts of the most recent modifications

even if the subagencies had not yet signed the mods.

I-3 AF, Tab 31 at 27. Pirchio testified that FMMI

contained an allowable exception in this regard that

other USDA offices occasionally use. I-6 AF, Tab 43

(HR Vol. 3). Ayerdi, however, objected to increasing

the sales orders without fully executed IAA

modifications. I-3 AF, Tab 31 at 26. Accordingly, on

May 26, 2017, Pirchio contacted OGC for an opinion

on whether OCFO could assign reimbursable budget

authority to OASCR based on IAA modifications that

had not yet been fully executed.

The appellant did not present evidence

corroborating her testimony that she believed this

practice was impermissible. Hillen, 35 M.S.P.R. at

458-62. Her contemporaneous statements in this

email thread exhibit only her desire that OGC

promptly respond to the inquiry so OCFO could

increase the funding availability and investigations

could proceed. I-3 AF, Tab 27 at 145. Furthermore, I

credit Pirchio’s testimony that OCFO was trying to

use an entirely permissible function in FMMI. His

testimony is corroborated by the contemporaneous

emails indicating that this was a question only of

whether to exercise that legal authority given the

competing risk. Id. at 143-46; see also Hillen, 35

M.S.P.R. at 458-62. Ayerdi’s objections therefore are

not protected disclosures or activity, and do not

support the appellant’s allegation that she had a

reasonable belief she was making protected

disclosures about other topics.

63a

Finally, the appellant argues her beliefs were

reasonable because the successor PPAD Director later

determined OASCR had engaged in financial

improprieties during the time period at issue with

respect to IAA reimbursable funding. Specifically,

Lorena McElwain, OASCR’s Chief of Staff beginning

in late-October 2018, directed current PPAD Director,

Kate Baun, to conduct a forensic accounting of IAA

funding following Baun’s concerns of improprieties. I6 AF, Tab 45 (HR Vol. 4). McElwain testified that

Baun spent approximately two months meticulously

sorting through several prior years of IAA funding

transactions and determined that PPAD had been

“comingling” subagency IAA payments and did not

track how much of each subagency’s money went to

pay for their own particular costs. Id. She testified

that, at the conclusion of the accounting, Baun

determined the subagencies were collectively due

reimbursement for $2.3 million in unobligated funds

that were left over from prior year IAA payments. Id.

I find McElwain’s testimony does not indicate the

appellant had a reasonable belief she was disclosing

(b)(8)-covered wrongdoing during her tenure. First, it

does not appear that the appellant made alleged

disclosures about the “single pot” of reimbursable

funding; rather, she was concerned about the shifting

of expenses between reimbursable and appropriated

funds. Regardless, neither the appellant nor

McElwain identified what the “single pot” practice

allegedly violated. McElwain testified generally that

PPAD’s activities violated “regulations” when it

pooled the reimbursable funds without keeping an

accounting of individual subagency expenses and

payments. I-3 AF, Tab 45 (HR Vol. 4). I afforded this

testimony little weight. Hillen, 35 M.S.P.R at 458-62.

64a

First, Baun’s observation regarding the “comingling”

of reimbursable funds was well known by OASCR and

OCFO senior managers during the appellant’s tenure

and thereafter. The credible, contemporaneous

evidence of record establishes that the concern at the

time was not that PPAD’s practices were legally

improper, but rather the difficulty PPAD faced in

determining how much unobligated funding

subagencies were due. This is the very reason the PIP

required the appellant to reconcile the FY 2015 and

FY 2016 billings. This is also consistent with the

appellant’s assertion that ASCR Leonard directed her

to “clean up the mess” in PPAD upon her hire. I-6 AF,

Tabs 45 and 47 (HR Vols. 4 and 5). There is no

indication then, nor when Baun later “discovered” the

issue, that the accounting practices did or were feared

to have caused a legal violation. I therefore find

McElwain’s testimony does not support the

appellant’s alleged reasonable belief that she was

making a protected disclosure of wrongdoing.15

In making these findings, I note that the

appellant’s concerns appear to have subjectively

weighed heavily on her. However, given the totality of

the evidence establishing her comparative lack of

understanding of the budget process for someone in

McElwain also testified that Baun determined some of the

reimbursable funding was used for staff travel and training

when it should only have been used for EEO case processing. I-6

AF, Tab 45 (HR Vol. 4). However, she failed to testify as to when

this was found to have occurred and whether the issue had been

either reported or found to have violated any law, rule, or

regulation. Id. Regardless, the appellant’s allegations did not

involve this issue and I do not find Baun’s determination to make

it more likely that the appellant had a reasonable belief in her

own disclosures.

65a

the PPAD Director position, I find a reasonable

person in her position would not have believed she

was disclosing a violation of law, rule, or regulation

with respect to any of her alleged disclosures.

Accordingly, I find the appellant has failed to meet

her burden of proof under 5 U.S.C. § 2302(b)(8).

The appellant engaged in protected activity under 5

U.S.C. § 2302(b)(9)(C)

The appellant’s July 2017 contact with OIG

regarding OASCR’s budget activities constitutes

protected activity under 5 U.S.C. § 2302(b)(9)(C).16

Accordingly, she has met her burden of proof for this

element.

The appellant’s protected activity was not

contributing factor the personnel actions at issue

The appellant’s FY 2017 performance rating,

placement on a PIP, and proposed removal constitute

personnel actions under the statute. See 5 U.S.C. §

2302(a)(2)(A)(iii), (viii). The appellant alleged Scott

became aware that she disclosed information to OIG

regarding OASCR budget improprieties in or around

late-August 2017, and that these subsequent actions

were in retaliation for that protected activity. During

jurisdictional briefings, I found the appellant’s

allegation of Scott’s knowledge was nonfrivolous

based on her allegation that Pirchio, who spoke with

Scott frequently during that time period, was aware

of her OIG contact as of late-August 2017 and would

Though I found her concerns raised to OASCR and OCFO, and

therefore to OIG, do not amount to protected disclosures under

Section 2302(b)(8), that analysis is irrelevant to whether these

activities are protected under Section 2302(b)(9)(C).

66a

have told her about it. However, following a hearing

on the merits of her allegations, I find the appellant

failed to establish Scott’s knowledge of her OIG

contact by a preponderance of the evidence.

Scott credibly testified that she was unaware the

appellant contacted the OIG about OASCR’s budget

practices during this time period. I-6 AF, Tab 39 (HR

Vol. 1). She testified that she was never contacted or

interviewed by OIG regarding these matters. Id. This

is consistent with the appellant’s own testimony that

she did not inform Scott of her OIG contact and that

OIG maintained her anonymity. I-6 AF, Tabs 45 and

47 (HR Vols. 4 and 5); see also Hillen, 35 M.S.P.R. 45862. It is further consistent with the appellant’s

testimony that she had only “informal” conversations

with OIG personnel regarding this matter in July,

August, and September 2017, and her allegation that

she did not provide OIG with “substantiating

evidence” until late-September 2017 and during her

February 18, 2018 interview. Id.

Scott also testified that Pirchio did not inform her

of the appellant’s OIG contact. I-6 AF, Tab 39 (HR

Vol. 1). Her testimony is consistent with Pirchio’s

credible testimony that the appellant notified him

that she went to OIG about her concerns that OASCR

was engaging in improper budget activities. I-6 AF,

Tab 43 (HR Vol. 3); see also Hillen, 35 M.S.P.R. 45862. He credibly recalled that he did not find any merit

to the appellant’s concerns and would not have shared

with Scott that the appellant engaged in this activity.

Id. The appellant failed to present any credible

evidence supporting her allegation that Pirchio would

have told Scott about the OIG contact, or that Scott

was otherwise aware of her protected activity. The

appellant argues that, during the September 5, 2017

67a

staff meeting, Scott looked directly at her when she

said “no one will accuse me of an ADA violation.” I-6

AF, Tabs 45 and 47 (HR Vols. 4 and 5). She alleges

this occurred only one week after informing Pirchio of

her OIG contact. Id. However, she also alleged that

Scott made the same comment during a meeting on

August 17, 2017, which was before the appellant

informed Pirchio of her OIG contact. WAF-5, Tab 11

at 7, 5. During the hearing, the appellant further

testified that Scott “said that a lot” during this time

period. I-6 AF, Tabs 45 and 47 (HR Vols. 4 and 5).

Were Scott even referring to the appellant with any of

these comments, I find it far more likely that was due

to the appellant’s frequent, incorrect projections of

budget deficiencies that she had been providing since

June 2017. I weigh more heavily Scott and Pirchio’s

credible, consistent testimony than the appellant’s

unsupported allegation. Hillen, 35 M.S.P,R. at 45862. Accordingly, the appellant failed to establish

Scott’s knowledge of the complaint. Furthermore, the

agency’s evidence supporting the appellant’s

unacceptable performance rating, PIP, and proposed

removal, as discussed in more detail below, is very

strong. I find any inference that could be drawn as her

protected activity contributing to those actions, due to

the fact that the activity directly implicated Scott and

gave her motive to retaliate against the appellant, is

overwhelmingly outweighed by the strength of the

agency’s evidence supporting its personnel actions.

Finally, the appellant does not allege, nor does the

record otherwise reflect that King was aware of her

OIG contact prior to any of the personnel actions at

issue. King credibly testified that he was unaware of

her OIG contact and the appellant has failed to

present evidence rebutting his credible testimony. I-6

68a

AF, Tab 41 (HR Vol. 2). As such, the appellant has

failed to establish her OIG contact was a contributing

factor to any of the personnel actions at issue in her

whistleblower appeal.

Accordingly, the appellant’s request for corrective

action is DENIED.

Demotion Appeal DC-0432-20-0011-I-6

The agency has proven its charge of unacceptable

performance under chapter 43 To prevail in an appeal

of a performance-based action under chapter 43, the

agency must establish, by substantial evidence:

the

Office of

Personnel Management

(OPM) approved its performance appraisal

system and any significant changes to it;

the agency communicated to the appellant the

performance standards and critical elements of

her position;

the appellant’s performance standards are

valid under 5 U.S.C. § 4302(b)(1);

the agency warned the appellant of the

inadequacies of her performance during the

appraisal period and gave her a reasonable

opportunity

demonstrate

acceptable

performance;

the appellant’s performance remained

unacceptable in one or more of the critical

elements for which she was provided an

opportunity

demonstrate

acceptable

performance.

The Board has described the right to a reasonable opportunity

to improve as a substantive rather than procedural right. Towne,

at ¶ 8.

69a

See Santos v. National Aeronautics and Space

Administration, 990 F.3d 1355, 1362 (Fed. Cir.

2021); Lee v. Environmental Protection Agency,

115 M.S.P.R. 533, ¶ 5 (2010). Substantial evidence

is defined as the “degree of relevant evidence that

a reasonable person, considering the record as a

whole, might accept as adequate to support a

conclusion, even though other reasonable persons

might disagree.” 5 C.F.R. § 1201.4(p). Substantial

evidence is a lower standard of proof than a

preponderance of the evidence. Id. Upon

consideration of the record evidence, I find that the

agency has proven each of the following elements

of its charge of unacceptable performance by

substantial evidence.

OPM approved the performance appraisal system

The Board ordinarily presumes the agency is in

compliance with the requirement that OPM approve

its performance appraisal system and any significant

changes made thereto, unless the appellant alleges

otherwise. See Adamsen v. Department of Agriculture,

116 M.S.P.R. 331, ¶ 6 (2011). The parties stipulated

that, on August 21, 2007, the Office of Personnel

Management (OPM) issued a letter to the agency

approving its new performance management system

for non-SES employees and that this system was in

effect during the relevant time period. I-6 AF, Tabs 25

and 31 (Stipulations). The letter is also included in

the agency’s response file. I-1 AF, Tab 12 at 76.

Accordingly, I find the agency has met its burden of

proof regarding this element.

70a

The agency communicated to the appellant the

performance standards and critical elements of her

position

The parties have stipulated that the appellant

received and signed for her FY 2017 performance plan

on February 6, 2017. I-6 AF, Tabs 25 and 31

(Stipulations).

Furthermore,

the

appellant’s

signature appears on the performance plan indicating

her receipt thereof on that date. I-1 AF, Tab 12 at 41.

The performance plan sets forth the critical elements

and performance standards for her position. Id. at 4253. Accordingly, I find the agency has met its burden

of proof regarding this element.

The appellant’s performance standards are valid

under 5 U.S.C. § 4302(b)(1)

Performance standards must, to the maximum

extent feasible, permit the accurate appraisal of

performance based on objective criteria. 5 U.S.C.

§ 4302(b)(1). Performance standards must be

reasonable, realistic, attainable, and clearly stated in

writing. See Towne v. Department of the Air Force, 120

M.S.P.R. 239, ¶ 21 (2013). Performance standards

should also be specific enough to provide an employee

with a firm benchmark toward which to aim their

performance, and they must be sufficiently precise so

as to invoke general consensus as to their meaning

and content. Id. Performance standards are not valid

if they do not set forth the minimum level of

performance that an employee must achieve to avoid

removal under chapter 43. Id.; see also Henderson v.

National Aeronautics & Space Administration, 116

M.S.P.R. 96, ¶ 9 (2011). An agency, moreover, can

cure a facially vague performance standard by

71a

fleshing out the standard through oral and written

communication in a PIP notice and during the PIP.

See Towne, 120 M.S.P.R. 239, ¶ 23.

Provided these standards are met, the Board will

defer to managerial discretion in determining what

employees must do in order to perform acceptably in

their positions. See Lee, 115 M.S.P.R. 553 at ¶ 29.

Thus, an agency is free to set its performance

standards as high as it thinks appropriate, provided

those standards are objective and meet the other

requirements of 5 U.S.C. § 4302(b)(1). See Jackson v.

Department of Veterans Affairs, 97 M.S.P.R. 13, ¶ 14

(2004). Accordingly, the focus of the Board’s inquiry

in a Chapter 43 appeal is whether the standards set

by the agency “measure the performance of the job in

question on the basis of the objective criteria set forth

by the agency.” Id. Provided this standard it met, the

Board will defer to the agency’s structuring of an

employee’s performance standards. Id. Moreover,

where the position in question involves technical

expertise, an assessment of the employee’s

performance is “not susceptible to performance

standards that are strictly objective, and [its]

standards may require a degree of subjective

judgment that would not be necessary or proper in a

position of less professional or technical nature.”

Greer v. Department of the Army, 79 M.S.P.R. 477, 484

(1998).

The appellant’s performance standards are valid

The agency has met its burden of proving its

performance standards are valid. I find the FY 2017

Plan explicitly details the standards for acceptable

performance

the

Mission

Results

and

Communications elements. For Mission Results, the

72a

Plan lists out four broad areas of responsibilities with

numerous specific tasks listed under each that the

appellant is responsible for completing to be

considered Fully Successful. I-1 AF, Tab 8 at 43. As

most relevant to this appeal, the Plan details the

appellant’s Financial Management responsibility as

including managing the IAA process, providing timely

SOF reports, processing procurement and contracting

requests, and verifying and making prompt

payments. Id. The Plan further states the actions

must be completed accurately and within required

timeframes. Id. Likewise, for Communications, the

Plan sets forth numerous specific responsibilities

with clear directions thereto. Id. at 49. For example,

the Plan requires the appellant’s written responses to

be “concise, clear, factually accurate, logically

ordered, and substantially free of errors.” Id. It

further requires oral responses to be “clear, courteous

and directly address the issues and questions.” Id. It

also required her to maintain professional

relationships and interactions with staff and

customers, provide technical expertise on assigned

programs, continually inform management of

sensitive issues, and adjusting priorities to changing

demands. Id. While the performance plan certainly

leaves room for interpretation, I find such flexibility

is not fatal to the validity of the standard. Rather, it

is necessary given the nature of the appellant’s work.

I find the performance plan sufficient to provide the

appellant with a “firm benchmark” toward which to

aim her performance, and that it is “sufficiently

precise so as to invoke general consensus as to their

meaning and content.” See Towne v. Department of

the Airforce, 120 M.S.P.R. 239, ¶21 (2013).

Accordingly, I find the agency has met its burden of

73a

proof for this element.

The agency proved the appellant’s performance was

unacceptable prior to the PIP and that it warned her

of her performance deficiencies

As a threshold matter, the appellant argues that

she was not put on notice of her deficient performance

during the FY 2017 performance year (i.e., before

receiving the October 2017 PIP). I find this argument

unavailing. First, the Board does not require notice of

deficiencies prior to an employee’s receipt of a PIP.

Rather, the Board has long held that the PIP itself

suffices to notify an employee of deficiencies. See

Santos, 990 F.3d at 1362, citing Harris v. Securities

and Exchange Commission, 972 F.3d 1307, 1316 (Fed.

Cir. 2020). To the extent the appellant alleges the

agency is subjected to a particular calendar deadline

of September 30 (the end of a performance year) to

issue a PIP and/or notify an employee of unacceptable

performance, the appellant provides no legal or

evidentiary support for this argument. The Board’s

precedent simply does not place so specific a deadline

on the notification requirement. Id.

Substantively, I find the agency proved by clear

and convincing evidence that the appellant’s

performance was deficient prior to the PIP and that

the agency notified her of her deficiencies. Regarding

Mission Results, the PIP notified the appellant that

she failed to effectively manage the OASCR budget

and keep up with OASCR fiscal responsibilities, failed

to process IAAs in a timely manner, and missed

several significant deadlines. I-1 AF, Tab 12 at 3031. The PIP detailed 12 examples of these alleged

deficiencies. Regarding the budget and fiscal

responsibilities, King included several examples of

74a

her failure to clearly and accurately report budget

breakdowns and budget adjustments while

attempting to close out the fiscal year in September

2017. Id. at 30-33. I find the record amply supports

King’s examples as set forth in the PIP as well as his

statement as to the appellant’s overall unsuccessful

performance in this critical element. As discussed in

detail above, the record is replete with emails

between the appellant, Scott, Pirchio, and others

wherein the appellant presents confusing and

inaccurate budget projections, exhibiting a clear lack

of competency in that aspect of her duties. These

examples alone constitute substantial evidence of the

appellant’s unacceptable performance in this critical

element.

Nevertheless, the remaining examples are

similarly supported by substantial evidence.

Regarding IAAs, King stated the process was

confusing and chaotic under her supervision,

particularly regarding modifications, leading to

complaints from subagencies. I-1 AF, Tab 12 at 30-33.

Scott credibly testified that civil rights directors in

Forrest Service, Food Safety and Inspection Service,

and Food and Nutrition Service all complained about

the IAA process that year. I-6 AF, Tab 39 (HR Vol. 1).

The agency produced a September 18, 2017 email

from Ted Gutman (FS Director) stating “I wanted to

respond about this year’s processing of IAA’s and

modifications which has been one of the most difficult

since OASCR took over processing of investigations

and charged additional fees for all FADs.” AF, Tab I3 AF, Tab 33 at 74-75; see also Hillen, 35 M.S.P.R. at

458-62. The appellant testified that the directors’

complaints were unrelated to actions during her

tenure there. I find, however, her testimony directly

75a

conflicts with the contemporaneous emails of record

and find that it does not rebut the agency’s

substantial evidence supporting its allegations. Id.

Finally, regarding untimely work product, King

referenced the appellant’s failure to timely or

competently create a budget book, failure to promptly

effectuate a settlement agreement and contract

payment, process supply requests, and failure to

create the FY 2017 A-123 Certification. I-1 AF, Tab

12 at 30-33. Again, the agency presented

contemporaneous emails substantiating these events.

See I-6 AF, Tab 29 at 8. Regarding the budget book,

the appellant alleges the agency provided her the

prior year’s book in hard copy and gave her no

guidance on how to recreate it for FY 2017. I-6 AF,

Tabs 45 and 47 (HR Vols. 4 and 5). She testified that

she therefore started building the budget book from

scratch with

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