# Petition for Writ of Certiorari — Nater v. Riley

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2000
- **Citation:** 531 U.S. 1029

## Text

| Supreme Goun, u.&
FILED

00-531 0CL3 om
pert

In The

Supreme Court of the Anited States

Rafael Nater,
Petitioner

Vv.

Richard Riley, Secretary of the Department of Education,
Respondent

On Petition For A Writ Of Certiorari
_To The United States Court Of Appeals For The Federal Circuit

PETITION FOR WRIT OF CERTIORARI

Rafael Nater
Pro-se Petitioner
31 Zuania,
Parque de Villa Caparra,
Guaynabo, Puerto Rico 00966
(787) 781-4089

Petition For Writ Of Certiorari.

a) Questions Respectfully Presented For Review.

Petitioner appealed to the Merit Systems Protection Board (the
Board). This revolved about discrimination and whistleblowing
activities. The Board dismissed because lack of jurisdiction;
however, did not inform petitioner as required under 5 C. F. R.
1614.302(b). The Federal Circuit Court consolidated the petitioner’s
four appeals because all arise from the same operative facts. After
the respondent motion to dismiss, the Court transferred one case to
the District Court of Puerto Rico and decided the other three cases.

1) If, based on lack of compliance with 5 C. F. R. 1614.302(b),
the Circuit Court should have transferred all the cases; or,
alternatively, remand to the Board to review the EEO issues?

In reference to the judicial review of decisions by the Merit
System Protection Board (Board) as established under 5 U.S.C. §
7703:

2) Did the case presented the statutory elements to set aside the
Board decision; 5 U.S.C. 7703(c)?

b) Parties To The Proceeding. All parties to the proceeding are
included in the caption. No corporate disclosure statement is
require.

Petitioner is: Rafael Nater, pro-se
#31 Zuania, Parque de Villa Caparra
Guaynabo, Puerto Rico 00966.
Tel. (787) 781-4089.

Respondent is: Richard Riley, Secretary
United States Department of Education
' was represented by: David B. Stinson, AUSA
Department of Justice, Room 12040
“L” street N.W.
Washington, D.C. 20530
Tel. (202) 307-0290 / (202) 616-0391

Note: Following with rule #29.4 of this court, the documents
will be serve on the Solicitor General of the United States.
Nevertheless, a “Courtesy Notice” will be serve on the representative
at the lower courts: David B. Stinson and Fidel Sevillano Del Rio.

' The agency’s attorney, Anthonier White, Esq., represented the agency for
all practical purposes before the Board and before the Circuit and the District Court
for Puerto Rico - District case 99-1366 (JP). Address is: U.S. Education OGC
division, 600 Independence Ave., S.W., Room 4200, Washington D.C. 20202-2110.
Tel. (202) 401-6700. The official attorney before the District Court is Fidel
Sevillano Del Rio, AUSA. Address: Federal Office Building, Room 452, Carlos
Chardon street, #150, Hato Rey, Puerto Rico 00918. Tel. (787) 282-1844.

(ii)

* a a a

c) TABLE OF CONTENTS AND OF AUTHORITIES

a) Questions Presented For Review.
b) The Parties To The Proceeding (See Case Caption).
c) Table Of Contents.
d) Opinions And Orders Entered In The Case.
e) Jurisdiction Of The Supreme Court.

- Dates Of: (A) Original Judgement. -

(B) Denial Of Rehearing.

- Statutory Provisions Believed To Confer Jurisdiction.
f) Constitutional And Statutory Provisions Involved.
g) Statement Of The Case.
h) Reasons For granting The Petition.
i) Appendix, Index to:

(I) inions an ers by the Board And
Date inion/Order Docket No.

-B Merit Syste ction Board:

18/Dec/1997 Initial Decision NY-1221-96-0334-W-1.
12/May/1998 Order: No Stay NY-1221-98-0272-S-1.
03/Nov/1998 Order: PFR-Denied NY-1221-96-0334-W-1.
23/Nov/1998 Order: No Hearing NY-1221-98-0401-W-1.
31/Dec/1998 Initial Decision NY-1221-98-0401-W-1.
02/Mar/1999 Initial Decision NY-1221-98-0272-W-1.
18/Mar/1999 Initial Decision NY-0752-98-0297-I-1.

-By the United States Court Of Appeals - Federal Circuit:

09/May/1999 Judg’nt/Opinion 99-3083, -3143, -3213.
06/Jul/2000 Rehearing Denied 99-3083, -3143, -3213.

-By the United States District Court - Dist. Of Puerto Rico:

J 14/Sep/2000 = Judg’nt/Opinion 99-1366 (JP).

oO ™mM™MOOW >

an

(II). Other Relevant Material.

K. Selected section of “Opposition to Defendant’s Motion For
Dismissal And for Summary Judgement”; docket #63, case 99-
1366 (JP) - D.C.P.R.

Petition For Review [to MSPB] docket: NY-1221-96-0334-W-]

. “Petitioner’s Statement Concerning Discrimination” - Filed with
the Federal Circuit under case 99-3083.

i

(i)

——Section Page
Cases

Caster y DOA. G2 WES See CUNO hk ck dinicweaadees 1]

Martin v. DAF, 63 M.S.P.R. 574 (1997) ..............008- 11

Taylor v. McElroy, 360 U.S. 709 (1959) .....2............. 5

Statutes and Regulations
th eT Pe errr rere ot re ee 2

Government Organizations and Employees,
MSPB, Prohibited Personnel Practices,

5 Es An MD 6 daw Chas 1a ATA 11,12

BALM MND Nb Sie KA NRs oN GRR Kos Ages 1]
Appeals, Judicial Review ...5 U.S.C. 7703 .......... >
Supreme Court - Jurisdiction: Courts of appeals;

certiorari; certified questions, 28 U.S.C. 1254 ........ 2
Federal Rules of Civil Procedures,

Fg ome ONS Be ree Cee Tare Cee ee 10
Federal Rules of Appellate Procedure, Rule 25(b) ........ 8
U.S. District Court for Puerto Rico,

Fg RE : ee rey eee eee 5

Code of Federal Regulations

Administrative Personnel
Practice and Procedures, 5 C.F.R. 1201:

NNN Fs eae Kak he cid 05S d ee eens 9
Closing of the Record, 5 C.F.R. 1201.58(a) .......... 7,8
PFR: Filing Petitions, and Cross ... , 5 C.F.R. 1201.114(i) . 7
Pree: RL, DED SOAR EDS 5 04K 68S wV-G OS ches 7,8

Federal Sector EEO, Subpart C -Related Processes
Mixed Case Complaint, 5 C.F.R. 1614. 302(b) . . i, 2, 3, 4, 14

(iv)

d) Opinions And Orders Entered In The Case.
It is noted that the administrative orders and Court opinion are
not published, but will appear on tables on the official reports.
In chronological order, the Opinions Below:

(i) The decision by the Merit System Protection Board appears
at Appendix A to the petition; it is unpublished. This decision
was issued by the Board on December 18, 1997, docket: NY-
1221-97-0334-W-1; disposition: Corrective action was denied.
(ii) The order by the Merit System Protection Board appears at
Appendix B to the petition; it is unpublished. This order was
issued by the Board on May 12, 1998, docket: NY-1221-98-
0272-S-1; disposition: Stay Request is denied.

(iii) The order by the Merit System Protection Board appears at
Appendix C to the petition; it is unpublished. This order was
issued by the Board on November 3, 1998, docket: NY-1221-97-
0334-W-1; disposition: Petition For Review was denied.

(iv) The order by the Merit System Protection Board appears at
Appendix D to the petition; it is unpublished. This order was
issued by the Board on November 23, 1998, docket: NY-1221-
98-0401-W-1; disposition: Request for Hearing is denied; the
Board lacked jurisdiction.

(v) The decision by the Merit System Protection Board appears
at Appendix E to the petition; it is unpublished. This decision
was issued by the Board on December 31, 1998, docket: NY-
1221-98-0401-W-1; disposition: Dismissed; lack of jurisdiction.
(vi) The decision by the Merit System Protection Board appears
at Appendix F to the petition; it is unpublished. This decision
was issued by the Board on March 2, 1999, docket: NY-1221-98-
0272-W-1; disposition: Dismissed; lack of jurisdiction.

(vii) The opinion and judgement of the United States court of
appeals appears at Appendix H to the petition; it is unpublished.
This order was issued by the Federal Circuit appeal court on
May 9, 2000, docket: 99-3083, 3143, -3213; disposition: The
Board decision was Affirmed.

(viii) The latest order of the United States court of appeals
appears at Appendix I to the petition; it is unpublished. This
order was issued by the Federal Circuit appeal court on July 6,
2000, docket: 99-3083, 3143, -3213; disposition: Rehearing
Denied.

e) Jurisdiction Of The Supreme Court.
Please note that:

(A) Original Judgement by the United States Court of Appeals
was on May 9, 2000.

(B) A timely petition for rehearing was denied by the United
States Court of Appeals on July 6, 2000, and a copy of the order
denying rehearing appears at appendix I.

Petitioner believes this Honorable Court has jurisdiction as
authorized by our Constitution, U.S. Const. art. II], §2, and per the
statutory provisions under 28 U.S.C. § 1254(1).

f) Constitutional And Statutory Provisions Involved.
We believe there are two main statutory or regulatory provisions
involved:

5 U.S.C. 7703: Judicial review of decisions of the Merit

System Protection Board. Sub-section (c) set the elements

needed by the appeal court to set aside any agency action,

findings, or conclusions.
and;

5 C.F.R. 1614.302(b): Equal Employment Opportunity
Commission, Federal Sector, Subpart C - Related Processes: Mixed
Case Complaints. Sub-section (b) establishes the process to follow
by the employee and by the agency.

g) Statement Of The Case.

This is truly ONE case and it is a Mix Case. Nater, here the
Petitioner, alleged discrimination and reprisal because protected
disclosures. In substance, Petitioner, born, raised, and worked for
the Respondent office in Puerto Rico, alleges discriminatory
treatment against him and members of the office of P.R., and against
certain auditees; this because national origin and political
preferences. Also, Petitioner alleges he detected and reported
irregularities in the Respondent’s methods to perform audits,
investigations, and in the prosecution of possible offenders.
Additional allegations were included at District Court level mostly
based on the Federal Tort Act..

h) Reasons For ting The Petition.
The importance of this case, for National purposes, may strive of

is.

——— rh _ cl —————nenaerss ss

the misapprehension of facts itself. Please note that, whenever the
trial Court (either administrative Court as it is the Board, or the
District Court) has determined that a series of allegations are the
facts of the case, but, this in conflict with stronger and more probable
allegations of facts, then, the results are in conflict with the reality,
against justice, and against the purpose of our system.

The Proceedings In Relations To The Issues.

1) If, based on lack of compliance with 5 C. F. R. 1614.302(b),
the Circuit Court should have transferred all the cases; or,
alternatively, remand to the Board to review the EEO issues?

The course of the proceeding has been complicated because the
facts of the case, and the laws and regulations governing the
allegations. In summary, the following procedural facts are relevant.’

In compliance with 5 C.F.R. 1614.302, Nater filed a Mix
complaint with the agency EEO division, but action was not taken.
After the allowable time lapsed, he followed with the process and
filed a Mix Case Appeal before the Merit System Protection Board
(the Board). See appendix (adx) J, at 7 to 9. While this case was in
process, additional personnel actions were taken against Nater and
he initiated another action which ended in a second appeal of three
personnel actions. This second appeal was broken by the Board into
three individual appeals. Among other, Nater claimed discrimination
and reprisal for protected disclosure on each appeal. (adx J at 7 to 9).

- For the first appeal, and after a jurisdictional hearing (November
14, 1996), the relief requested was denied; it is noted that the Board
refused to review the allegations of discrimination or any other,
excepted for the allegation of reprisal due to protected disclosures.
Then, a PFR (Petition For Review) before the board was also denied.
See adx A and B. It is noticed that neither the Board nor the
agency-respondent ever notified Nater about bis right to file with
the agency EEO counselor or to request a final decision from the
agency as required under 5 C.F.R. 1614.302(b).

? For illustrative purposes, see the September 14, 2000, order by the
District Court of Puerto Rico (D.P.R.) at our appendix (adx) J at 7 to 9:
Uncontested Facts as determined by the Court. However, petitioner controverted
some of these alleged facts.

Then, Nater filed appeal with the EEOC and simultaneously PRF
with the Federal Circuit. The EEOC did not accept review based on
lack of jurisdiction, and Nater filed Civil Action in the Federal
District Court. (adx J).

For the other three personnel actions, which ended in three
individual appeals: The Board, and without any hearing, dismissed
two appeals for lack of jurisdiction; also, did not review the
allegations of discrimination. Then, on the last appeal, sustained a
hearing and reviewed the discrimination based on national origin,
and the reprisal due to disclosures. (adx G). It is noticed that, in
relation to the two appeals dismissed without a hearing (adx C to E),
neither the Board nor the agency-respondent ever notified Nater
about his right to file with the agency EEO counselor or to
request a final decision from the agency as required under 5
C.F.R. 1614.302(b).

Because all four appeals were based on the same operative facts,
Nater asked the Federal Circuit Court of Appeals to consolidate all
the four cases, and the Court granted the motion. This became case
no. 99-3083, -3143, -3213, -3236. (adx H). Nater had also included
the cases as part of the Civil Action before the D.C.-P.R. (District
Court for Puerto Rico), case 99-1366 (JP). (adx J). This latter case
was filed on April 6, 1998.

It is important to note that, at all times, Nater openly and with
candidacy informed both, the Federal Circuit, and to the District
Court the status of his action. More important, Nater clearly and
expressly informed to the Federal Circuit his intention of preserving
his allegations of discrimination. (adx L).

Under this scenery, respondent asked the Federal Circuit to
dismissed all cases because petitioner filed the same actions before
the D.C.-P.R., and Nater informed the Court of his desire to preserve
his allegations of discrimination. The appeal Court did not dismissed
the cases, but transfer ONE case to the District, this was the last
appeal, and reviewed the other three cases. Finally, the appeal Court
sustained the agency, this, on May 9, 2000, and later denied Petition
for Rehearing, July 6, 2000. (adx H, I).

The District Court sustained two Scheduling Conferences, and,
in response to defendant’s motion to dismiss, on September 14, 2000,

4.

the Court dismissed all the allegations, excepted one. The District
transferred back to the Federal Circuit the case received from the
Federal Circuit, this, the allegation related to whistleblowing..

Nater filed “Notice of Appeal” with the First Circuit Court of
Appeals on September 19, 2000, in relation to the dismissed
allegations.

Note: We also are filing a motion with this Honorable Court to
praying for a “Continuance” of the proceedings or for “Dismissal
Without Prejudice To Re-file” until after the First Circuit and the
Federal Circuit completion of this case review. Please notice that
we are compelled to filed this action at this moment as required by
the law and rules (see rule 13 of this Honorable Court). After the
Circuits review is completed, if applicable, we will ask for
consolidation of the cases.

_ Further, as a last alternative, we ask this Honorable Court to
review the whole case as it may be applicable according to Taylor
v. McElroy, 360 U.S. 709 (1959). In Taylor, this Court decided that
the issues before the Circuit were very similar to the issue properly
before them, thus, review the case.

Wherefore, very respectfully, we poses that this case should have
been review as one case and should have been transferred in full to
the District Court for a “De Novo” review as stated in 5 U.S.C.
7703(c); “... except that in the case of discrimination brought under
any section referred to in (b)(2) of this section, the employee or
applicant shall have the right to have the facts subject to trial de
novo by the reviewing court.”

2) Did the case presented the statutory elements to set aside the
Board decision; 5 U.S.C. 7703(c)?

Specifically, the court shall review the record and hold unlawfui
and set aside any agency action, findings, or conclusions found to be:

“... (1) arbitrary, capricious, an abuse of discretion, or _

otherwise not in accordance with law;

(2) obtained without procedures required by law, rule, or

regulation having been followed; or

(3) unsupported by substantial evidence; ...

se

The substance in this second Question relates to one fact: On
February 23, 1998, Petitioner did submit to the Board with his
Petition For Review (PFR) all related documents, arguments and
motion identified as New And Material Evidence. Petitioner alleged
that such new evidence may have resulted in the revocation of the
Board initial decision, or at least, in remand to the Board for
additional review. The Board, however, understood those documents
were submitted on April 7, 1998, as part of petitioner’s reply to the
agency. The Federal Circuit Affirmed. Then, the argument revolves
around the effects of this misapprehension by the Board and by the
Circuit.

The Honorable United States Court of Appeals for the First
Circuit appears to have misapprehend certain substantive facts and
to have misapplied the law in this case. Therefore, some very
important elements of the cause of action were not considered, and
the process itself appears to have been misapplied against the
Petitioner. :

In relation to case no. 99-3083, -3143, -3213, the Federal Circuit
opinion should be revoked based on these considerations.

Very respectfully, Nater poses that the Federal Circuit appears
to have overlooked the fact that his PFR (Petition for Review) with
the Board was filed within the allowable time. Please note that this
PFR included the “New and Material Evidence” which was at issue,
also, Petitioner made reference to the appendix at A-465, A-456.
(This, in reference to the appendix submitted to the Fed. Cir.)

The Federal Circuit determined that:

“\.. Additionally, although Nater badly claims that his untimely
filing contained new and material evidence, he fails to
demonstrate why he was unable to submit this evidence despite
due diligence before the record closed twenty-five days after
Nater served the petition for review. Thus, the AJ's decision was
supported by substantial evidence.” See adx H at 7, 1* 4.

The Board issued the I.D. (Initial Decision) on December 18,

1997 (ADD-1)’, and they granted permission for, and Nater did file
the PFR on the February 23, 1998 (adx L). This PFR included an
explanatory motion together with the new and material evidence ob-
tained after the hearing record closed (A-456). Please note that per
5 C.F.R. 1201.58(a) the HEARING record closed the last day of the
hearing; in this case, November 14, 1996.

On November 3, 1998, the Board issued the Final Decision
denying Nater’s PFR because: “... it does not meet the criteria for
review as set forth in 5 C.F.R. 1201.115.” Additionally the Board
stated that: “... After the close of the record on petition for review,
5 C.F.R. 1201.114(i), the appellant submitted a reply to the agency's
response to his petition for review; the Board has not considered this
reply because the appellant has not shown good cause for his
delayed filing.” See adx C. Please note that neither the agency nor
the Board ever addressed the arguments posed by Nater in the
February 23, 1998 motion nor addressed or rebutted the materiality
of the new evidence he presented.

Nater filed timely PFR before the Circuit Court alleging, in
summary, the Board erred: (a) by not taking into consideration
Nater’s reply to the agency’s response, and (b) by making a
determination that Nater’s PFR did not meet the indicated criteria for
review resulting in their denial of the PFR.

However, it is apparent the Court overlooked and did not address
the second issue (issue (b) above), and it is apparent both issues were
mixed up. At pages 5 (last §), p. 6 (last §), and p. 7, the Court
addressed Nater’s first allegation (the Board did not consider his
reply) and sustained the agency determination, adx H at 5 to 7;
unfortunately, the Court did not indicate if his PFR met or not the
criteria per 5 C.F.R. 1201.115.

The Court misapprehended Nater contention (“... Nater contends
that ... (3) Nater’s reply brief contained new and material

? Please note that our references the appendix in this document are
indicated as adx. Reference to the appendix before the Fed. Cir., and to the PFR
before the Board are included as illustrative only - the documents are not here
included. 2

in “parenthesis” are for documents included in the Court or agency below; references
to the appendix in this Petition for Writ of Certiorari are not.

x3

evidence. "’, adx H at 6, 1" 4), and misapprehended as a fact that the
New and Material Evidence was submitted as part of the reply (April
7, 1998) rejected by the Board ( id. at 7, 1°). Apparently the Court
understood that Nater was intending to submit the New and Material
evidence as part of the April 7, 1998 reply, but the fact is that the
new evidence was submitted on February 23, 1998. With very much
respect, we poses the determination is not correct.

This is, Nater did not content that his reply included the new
material. This material was timely submitted and explained on
February 23, 1998, as part of the PFR ((A-465(a) at item #3, A-456)).
See adx L. ;

But these facts do not put an end to this issue; the Board denied
ie PFR after determining that it did not meet 5 C.F.R. 1201.115.
But the facts are in conflict with that determination. Nater’s BRD-
PFR included objections and referencing to supporting material on
record and to laws (A-472 to A-475). Also, petitioner included the
allegation that the new evidence was not available before the close
of the record for the hearing’, since most of the documents were
created after November 14, 1996.

Also, in support for our pray, please note the following: The
Circuit Court sustained the Board decision by indicating that
substantial evidence support the Board’s conclusion’. However, the
new evidence (A-456 to A-464, and as part of the Brd-PFR at tab-3)
appears to be of substantial weigh to make a reasonable person
believe that it is more probable than not that all those “Superior”
ratings for Nater were obtained against the will of Rios, the main
subject of Nater disclosures, and after the assistant to the supervisor
ignored Rios requests. Also, the new evidence provides a strong
indication that Rios was able to strongly influence the assistant
supervisor and the rating official only after Nater filed the report of

* November 14, 1996 (A-456 to A-464); see 5 C.F.R. 1201.58(a)),

* “.. We hold that substantial evidence supports the Board's conclusion
that Nater's 1990 disclosure was not a contributing factor in the agency's alleged
lowering of his 1994 performance appraisal. Even assuming, as Nater alleges, that
he continuously reported auditing irregularities between 1990 and 1994, his higher
performance ratings between 1990 and 1993 belie his contention that the agency
acted in reprisal for these alleged disclosures or for his 1990 disclosure involving
the credit card misuse.” Adx H at 6, 2™ 4.

8:

irregularities with the agency and later with the Special Counsel
(OSC).

As to the “contributing factors”, the Circuit concluded that
Nater’s high performance evaluations from 1990 to 1993 belie his
contention that his 1994 rating was in reprisal for his continuous
disclosure during the same period. (Adx H at 6, 2°74) But the new
evidence brings additional light in this area. This is, Rios wrote a
memo (“new evidence”, A-045) disclosing his ill feelings against
Nater immediately after Nater transfer-in during 1990. Also, this
shows Rios continuous opposition to Whiting and other supervisors’
evaluating Nater performance as outstanding (see A-046, 2™ 4).
Further, this document is indicative of Rios knowledge of Nater
disclosures which at the same time is indicative that his 1994 rating
and succeeding personnel actions were in reprisal for Nater’s
allegations of violations to the rules and regulations applicable to the
agency.

Therefore, the new evidence (all were timely filed) brings facts
which are in direct conflict with the facts previously relied on for the
determinations in the Board’s I.D. (adx A). I pose that the new facts
should result in the revocation of the I.D., or at least to order that a
new hearing be sustained in the specific areas of conflict, and that a
new period for discovery be opened for these purposes.

Additionally, the Federal Circuit Appeal Court holds that the
Board did not abuse its discretion in declining to consider Nater’s
untimely filing (in reference to his reply to the ageticy response) (adx
H at 6, 4" 9); and further, also stated that there is no right for such a
reply (/d. -7,1° 9). Very respectfully the Court may have overlooked
one important fact; i.e., it was the response by the agency which
was late, Nater filed timely.

The regulations do not specifically provide the opportunity nor
the right to reply to the agency response (adx H at 7, 1" 4).
However, please note the following facts.

The Federal Rules of Appellate Procedures and the local rules
for the District Court of Pueric Rico can be enlightening, this
regardless the Board* have not adopted the specific rules.

* The Board rules at 5 C-F.R. 1201.55 established the requirements for
submission of motions and the time to file an objection to motions. The time is 10

-9-

As to filing and service, Fed. R. App. P. 25(b) requires: “...
Unless the rule requires service by the clerk, a party must, at or
before the time of filing a paper, serve a copy on the other parties to
the appeal or review.” The local rule 311.3 for the U.S. Dist. of
Puerto Rico similarly requires service to all parties “... on or before
the date that they are filed with the Clerk, ...”. (RH-ADD-| 0).

In the case at bar, the agency dated and certified as served their
response on March 20, 1998; i.e., the last date for filing. However,
Nater controverted (i) the accuracy of the mailing date and (ii)
claimed it was not mailed to “... the last known address ...” (PFR-9)°.
Based on the agency responses, they have never controverted or.
rebutted Nater’s allegations, thus, we should presume the facts are as
Nater alleges. Therefore, the effective filing date by the agency was
April 2, 1998, which means it was a late filing.

Also, in this regards, we also may look at the “Board’s Certify
Index”; (ADD-17, item #6), the agency response was recorded on
March 25, 1998, but the last date for filing was March 20, 1998.
This fact is also indicative that the response was filed late even with
the clerks’ office.

Then, should we ask about the relevancy of these issues and
facts? It is a fact the Constitution requires, among others, a “Due
Process”. The administrative process is permeated with that same
idea. In our case, the issue is, why it is required that documents be

days after service of the motion. The Board’s policy is that the rules will apply in
a manner that expedites the processing of each case, with due regard to the rights of
all parties. We pose that the Federal Rules of Civil Procedures should serve as
guidance and be applied whenever the conditions so indicate.

Service requirements per rule 5 of the Federal Rules of Civil Procedures
(see 28 U.S.C. Rules, R. 5) is similar to the indicated rule from the Board. In es-
sence, both type of rules requires that al! documents must be serve upon all parties
and to the last known address and must include a Certificate of Service informing the
name, address, and date served.

* With his reply, Nater notified the Board he received the answer on April
2, 1998, that the envelope was not having any Post-Office stamp, symbols, or marks,
and it was addressed to his previous address (Nater adopted and informed a new
address since October 1996). This is, since there were not any post-marks, then, for
making a determination as to the date the response by the agency was filed, the only
date we are having is April 2, 1998. Then, since March 20, 1998 was the last date
to file response, but was effectively file on April 2, 1998, their response should have
been rejected. ss

10;

served on the other party and that the certificate of service informs
the date served if it is not for granting a true and reasonable
opportunity to reply or rebut the assertion in the document served?
There is no other answer; the purpose is to allow the opposing party
the true and fair chance to rebut adversary statements.

Then, the substance of these arguments is to sustain that under
the conditions indicated, Nater was not afforded a true and fair
opportunity to rebut the allegations by the agency in their response.
Even more, the agency response was filed late and as such should
have been rejected, but it was accepted and reviewed. But Nater’s
reply after 5 days of receiving of the agency response, was rejected.

Based on these facts, we pray this Court reconsideration of the
decision as prayed for in the PFR.

In Relation To The Allegations Of Whistleblowing.

The Federal Circuit Appeal Court decided to decline Nater
invitation to partially overrule Carter v. DOA, 62 M.S.P.R. 393
(1994) (adx H at 6, 3 4, last sentence). Also, as to cases 99-3143,
and 99-3213, the Court upheld the Board’s conclusion that the
alleged Whistleblowing activities were no more than “professional
disagreements” (adx H at 6, 3° § and id. at 7). However, it is
apparent that we have deviated our attention from the main issue.
We posed that for all three cases the issue is to determine what
happens when the employee makes a number of related disclosures
based upon the same operative facts, some of which are argued to
come under 5 U.S.C. 2302(b)(8), and others under Section
2302(b)(9).

We poses that the applicable standard to this case was set in
Martin v. DAF, 63 M.S.P.R. 574 (1997)’. On review, the Board
concluded that, even though it is correct that under 5 U.S.C.
2302(b)(9), the reprisal due to the filing of a grievance and the
appeal to the Board is an action prohibited, that action is out of the

” Martin claimed his performance rating was lowered as result of protected
disclosures. He reported to his superiors allege violations to the agency own
regulations and later followed with reports to OSC, an appeal to the MSPB, and a
grievance. Also, previously he had prevailed in an appeal before the Board. The
A.J. rejected the IRA appeal based on lack of jurisdiction because the disclosures
were not made through such channels as would advance his whistleblowing claim.

-ll;

Board jurisdiction under and IRA appeal; Martin, at 578. However,
since the appellant had originally reported to superiors violations of
the agency regulations by other employees, the Board had
jurisdiction:

“... When an employee makes a number of related disclosures
based upon the same operative facts, some of which are argued
to come under 5 U.S.C. § 2302 (b)(8) and others under section
2302 (b)(9), those that come under section 2302(b)(8) provide «.
basis of Board IRA jurisdiction to review allegations of reprisal
for whistleblowing.”; Martin, at 578.

Based on this standard, the I.D. was reversed. Because Carter,
appears to rule that any element of the whistleblowing included in a
grievance can’t be use as a base for an IRA appeal, we suggested that
Carter should be reversed in part (or clarified).

Before this Court, Nater posed that his issue is similar to
‘Martin’ issue”, however, the Board conclusion did not follow
Martin (ADD-4 and ADD-5). In Nater the Board concluded that his
. grievances revolved around differences of opinion as to the
application of regulations to working papers, and hence, these were
not protected disclosures. Nater reported to his closest superiors
irregularities and violations to the agency professional auditing
- standards and agency regulations. See PFR-13, footnote 26. Those
superiors were in charge to take measures to change the irregularities
noted. Due to the lack of action by management, Nater moved to file
grievance, EEO complaint, OSC report, and finally appealed to the
Board. (See A-13 to -16, footnotes 26 to 33). In his appeal, Nater
claimed the reprisal (lower ratings, non-selection for promotion,
suspension for five days, etc.), was the result of his reports of the
irregularities to management, because the filing of the EEO
complaint, the OSC report, and the appeal per se. Then, the
conditions in Nater were mostly the same than in Martin, but the
Board did not apply the Martin standard.

Also, it is apparent that the subject matter under Nater grievances
could have fallen within the Martin rule if the issue about the
application of regulations to the working papers would have been
considered an irregularity and not a mere difference of opinion
among accounting professionals. Then, it is at this point thatthe new

-12:

and material evidence is important. One of the objectives of that new
evidence was to support the allegation indicative that the disclosures
corresponded to an irregular behavior with vices of illegalities.
Further, it is clear, as it was explained in the PFR to the Board, that
this new evidence was created and obtained after November 14, 1996
(i.e., after the close of the hearing record). (ADD-456).

As to the “Contributing Factor”, in 99-3083, the Court concluded
that Nater failed to show that the supervisor had any desire to
retaliate against him. adx H at 6, 3° 4. However, it should be
considered that the new evidence provided information supporting
the allegation that the assistant to the supervisor had the animus and
ill intention to retaliate because Nater disclosures (emphasis on A-
462, item #6, A-45). This fact is in conflict with the Board’s finding
that there was no evidence sustaining animosity against Nater by
Rios. (adx A). The importance of the new evidence relates to Rios
memo disclosing his true feelings and continuous requests for
supervisory actions against Nater. But, this information was notified
to Nater during November 1997 as part of the process for remove
him from the Federal Government; therefore, it was new and material
evidence to be reviewed.

Therefore, the new evidence should support the existence of the
required elements under the whistleblowing defense, the information
was not available to Nater before the close of the record, and it was
timely presented to the Board as part of the PFR. Then, very
respectfully, Nater prays for reconsideration of the Court opinion and
that the Board decisions be revoked and the case remanded for
proper adjudication of the issues raised.

i) Conclusion.

In substance, this is one case of “mix” allegations of
discrimination and reprisal as a result of whistleblowing. Petitioner
exhausted all available administrative remedies, and finally filed for
judicial review. Unfortunately, during the administrative appeal, the
agency-respondent, nor the Board complied with the requirements
notifying petitioner that his case was being dismissed for lack of
jurisdiction; see 5 C.F.R. 1614.302(b). With this error, plaintiff was
not put on proper notice of his next available procedural
opportunities, thus, this was the root of the following defective
process. Because the errors were not caused by the petitioner, the

14.

courts below should allow petitioner to exercise the options provided
per 5 C.F.R. 1614.302 (b).

Therefore, the writ of certiorari should be granted and the decision
of the Federal Circuit Court be revoked with instruction to remand
the case to the Board with instructions in accordance to this opinion. ~

Respectfully submitted,

lt

Rafaél Nater, pro-se petitioner. Date: Lect, ‘les v4 QLA

-14;

No.

In The |
Supreme Court of the United States

Rafael Nater,
Petitioner

V.

Richard Riley, Secretary of the Department of Education,
Respondent

PROOF OF SERVICE

I, Rafael Nater, pro-se petitioner, declare that on this date,
October 3, 2000, as required by Supreme Court Rule 29, I have
served the enclosed PETITION FOR WRIT OF CERTIORARI on
each party to the above proceeding or their legal representative, as
applicable, by depositing an envelope containing three copies of
the above stated document in the United States mail (U.S. Postal
Service) properly addressed and with first-class postage prepaid.

This document was served this date on: The Solicitor General of
the United States, Room 5614, Department of Justice, 950
Pennsylvania Ave., N.W., Washington, D.C. 20530-0001.

Also, I have notified the legal representative in the lower
courts. (See page (ii) at n. 1 of the Petition).

I declare under the penalties of perjury that the foregoing is true
and correct to the best of my knowledge and beli

Pro-se Petitioner

i) Appendix: 5

I__Judgements, Orders, Opinions, Administrative Decisions and
Orders involved or closely related.

Date ini rder Docket No.
-By the Merit System Protection Board:

A. 18/Dec/1997 Initial Decision NY-1221-96-0334-W-1.

B. 12/May/1998 Order: No Stay NY-1221-98-0272-S-1.

C. 03/Nov/1998 Order: PFR-Denied NY-1221-96-0334-W-1.

D. 23/Nov/1998 Order: No Hearing NY-1221-98-0401-W-1.

E. 31/Dec/1998 Initial Decision NY-1221-98-0401-W-1.

F. 02/Mar/1999 Initial Decision NY-1221-98-0272-W-1.

G. 18/Mar/1999 Initial Decision NY-0752-98-0297-I-1.

-By the United States Court Of Appeals - Federal Circuit:
H. 09/May/1999 Judg’nt/Opinion 99-3083, -3143, -3213.
I. 06/Jul/2000 Rehearing Denied 99-3083, -3143, -3213. a

-By the United States District Court - Dist. Of Puerto Rico:
J. 14/Sep/2000 Judg’nt/Opinion 99-1366 (JP).

I]. Other Relevant Material.

K. Selected section of “Opposition to Defendant’s Motion For
Dismissal And for Summary Judgement”; docket #63, case 99-
1366 (JP) - D.C.P.R.

Petition For Review [to MSPB] docket: NY-1221-96-0334-W-1

. “Petitioner’s Statement Concerning Discrimination” - Filed with
the Federal Circuit under case 99-3083.

ee

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

NEW YORK FIELD OFFICE
RAFAEL NATER (pro-se) ) DOCKET NUMBER
Appellant
) NY-1221-96-0334-W-1
v.
)
RICHARD RILEY, SECRETARY
OF U.S. DEPARTMENT OF ) DATE: December 18, 1997
EDUCATION,
Agency )

Anibal anellas Rivera, Esquire, San Juan, Puerto Rico, for the
appellant.
Tracy Sasser, Esquire, Washington, D.C., for the agency.

BEFORE

William J. Lee
Administrative Judge

INITIAL DECISION

INTRODUCTION

On April 20, 1996, the appellant filed an Individual Right of
Action (IRA) appeal with the Merit Systems Protection Board
(Board) after the Office of Special Counsel (OSC) had closed its
inquiry into his allegation that he was a victim of reprisal for
whistleblowing activities. A jurisdictional hearing was held on
November 14, 1996. For the reasons set forth below, the appellant's
request for corrective action is DENIED.

adx A, p. 1

ty

ANALYSIS AND FINDINGS
Background

The appellant a GS-12 Auditor, first sought corrective action
from OSC based on allegations that his performance evaluation was
lowered in retaliation fc)r his whistleblowing. In addition, the
appellant alleged that he was not selected for a position because of
reprisal for whistleblowing. See Initial Appeal File (IAF), Tab 6,
Subtabs 3-2, 3-3. OSC terminated its inquiry into the appellant's
allegations on February 21, 1996. See id. The appellant then filed
this timely IRA appeal.

In his IRA appeal,' the appellant's claimed that he was issued
a fully successful performance evaluation during 1994, in lieu of a
superior rating, and not selected for a position in 1995 due to
whistleblowing, i.e. (1) a 1990 disclosure of an alleged misuse ofa
Diners Club card and (2) statements about the alleged official
practices contained in a grievance filed in 1994 prior to the
evaluation. See IAF, Tab 6, Subtabs 3-1, 3-.2 and 3-3.

General legal standards

It should be noted that in an IRA appeal, the Board's
Jurisdiction is limited to adjudicating the whistleblower allegations,
not the underlying personnel action or any other issues raised. See
Lewis v. Department of the Army, 63 M.S.P.R. 119, 125-26 (1994),
aff'd, 48 F.3d 1238 (Fed. Cir. ), cert. denied, 116 S.Ct. 110 (1995)
(citing Marren v. Department of Justice, 51 M.S.P.R. 632, 639
(1991), aff'd, 980 F.2d 745 (Fed. Cir. 1992) (Table). The appellant
has the burden of proving jurisdiction by the Board before the merits
of the whistleblower retaliation claim can be addressed. See 5 C.F.R.
§ 1201.56(aX2\i) (1997). To establish the Board's jurisdiction over
an IRA

' The appellant alleges, inter alia, in his moving papers that he was "looking for
r a review of the case I presented as of October 14, 1994 to the Department of
Education, EEO Division, where I claimed discrimination." See IAF, Tab 1. The
courts have held that the filing of EEO complaints does not constitute
whistleblowing activity protected under 5 U.S.C. § 2302(b\8). See Spruill v. Merit
Systems Protection Board, 978 F.2d 679, 691-2 (Fed. Cir. 1992).

adx A, p.2

3

appeal, the appellant must show by a preponderance of the evidence
that:’ 1) He engaged in whistleblower activity by making a disclosure
protected under 5 U.S.C. § 2302(b\8), i.e., he disclosed information
that he reasonably believed evidenced a violation of law, rule, or
regulation, gross mismanagement, gross waste of funds, abuse of
authority, or substantial and specific danger to public health and
safety; (2) the agency took or failed to take, or threatened to take or
failed to take a personnel action as defined in 5 U.S.C. § 2302(a);
and (3) he raised the whistleblower issue before the OSC, and
proceedings before OSC have been exhausted. See White v.
Department of the Air Force, 63 M.S.P.R. 90, 94 (1994); Geyer v.
Department of Justice, 63 M.S.P.R.. 13, 16-17 (1994), review
dismissed, 99 F.3d 1159 (Fed. Cir. 1996).

Pe acti '

An employee or former employee may seek corrective action
from the Board regarding any "personnel action" which is proposed
or taken against him as a result of whistleblowing, as described in 5
U.S.C. §2302(b)(8). Both a performance appraisal rating, and non-
selection for a position is a "personnel action" under 5 U.S.C. §
2302(aX2MA iii). See Eidman v. Merit Systems Protection Board.
976 F.2d 1400, 1407 (Fed. Cir. 1992). Further, there is no dispute
that he raised the issue of his performance appraisal and non-
selection before OSC, and proceedings before OSC were exhausted.
See IAF, Tab 6, Subtabs 3-2 and 3-3. Accordingly, I find that the
appellant has met two of the requirements for the Board's jurisdiction
over an IRA appeal.

The appellant’s disclosure

In the present case, the appellant's allegation of
whistleblowing was in his verbal disclosure to Thomas Whiting, his
second-level supervisor, about the misuse of a credit card by his
immediate supervisor, Profirio Rios, a violation of agency
regulations, and the filing of grievances from June 12 to July 11,
1994, concerning, violations of agency

. Preponderance of the evidence is defined as that degree of relevant
evidence which a reasonable person considering the record as a whole would accept
as sufficient to find that a contested fact is more likely to be true than untrue. See 5
C.F.F § 1201.56(c)(2) (1997).

4

regulations. To show that his disclosure is protected by 5 U.S.C. §
2302(b)(8), the appellant must show that he disciosed information he
reasonably believed evidenced a gross mismanagement or an abuse
of authority or a violation of a law, rule, or regulation. See Eidman,
976 F.2d at 1407. The test to determine if a person has made_a
disclosure protected by 5 U.S.C. § 2302(b)(8) is whether a
reasonable person in the appellant's position would believe that the
matter reported constituted one of the situations specified at 5 U.S.C.
§ 2308(b)(8), violation by an agency of its regulations. See Russell
v. Department of Justice, 68 M.S.P.R. 337, 342 (1995) (an appellant
must set forth proof, either in the form of testimony or documentary
evidence, or both, as well as establish that the matter reported was
one that a reasonable person in his position would have believed
violated 5 U.S.C. § 2302(b)(8)).

The test for whether the appellant had a reasonable belief
that his disclosure evidenced a violation of agency regulation is an
objective one. It does not required, proof of an actual regulatory
violation, but only a showing that a "reasonable person in his
position would believe" the disclosure evidenced a regulatory
violation. See Rusell, 68 M.S.P.R. at 342; Garst v. Department of the
Army, 60 M.S.P.R. 514, 518 (1994). Based on the evidence of record,
| find that the when the appellant informed Mr. Whiting about Mr.
Rios misuse of government credit card, this was a disclosure within
the meaning of 5 U.S.C. § 2302 (b)(8).

I do not find, however, that the appellant's 1994 grievances
of June 12, 1994 through July 11, 1994, are protected disclosures.
The Board has held that any matter disclosed within such grievances
are not protected whistleblowing activities. See Carter v. Department
of the Army, 62 M.S.P.R. 393, 402 (1994); Fisher v. Department of
Defense, 47 M.S.P.R. 585, 587-88 (1991). The exercise of a
grievance right does not, however, in and of itself, disqualify an
employee from pursuing corrective action under the WPA as well.
When an employee makes a number of related disclosures based
upon the same operative facts, some of which are argued to come
under 5 U.S.C..2302(b)(8), and others under Section 2302(b){9),
those that come under section 2302(b)(8) provide a basis of Board
IRA jurisdiction to review allegations of reprisal for whistleblowing.
See Martin v. Department of the Air Force, 73 M.S.P.R. 574, 578

adx A, p. 4

5
(1997). The evidence of record indicated that the subject matter of
these grievances revolved around a difference of opinion among
accounting professionals as to application of regulations to working
papers, The Board has held that disagreements over policies are not
protected disclosures especially when, as is the case, the
disagreements are unspecified as to allegation of regulatory or legal
violations made during discussions within the organization. See
Heining v. General Services Administration, 61 M.S.P.R. 539, 554,
55 (1994), reaffd on reconsideration, 68 M.S.P.R. 513 (1995).
Accordingly, inasmuch at the evidence does not indicate that the
appellant's 1995 performance rating or non-selection was in reprisal
for his having made allegations in his grievances concerning the
agency's violation of its regulation, those facts do not serve as a basis
for a section 2302(b)(8) disclosure.

However, in analyzing a whistleblower reprisal claim, an
administrative, judge may assume that an appellant is a
whistleblower and has established that a protected disclosure was
made, and go on to. consider whether the disclosure was a
contributing factor in a covered personnel action. See Mausser v.
Department of the Army, 63 M.S.P.R. 41, 44 (1994). Accordingly,
in light of the Board's reasoning in Mausser, I will make this
assumption and find that the appellant's grievances are protected -
disclosures. Therefore, 1 will consider whether the appellant has
shown that his status as a whistleblower was a contributing factor in
the cited personnel actions.

Contributing factor

The appellant must demonstrate by a preponderance of the
evidence that his protected disclosures were a contributing factor to
the agency's decision to lower his performance evaluation. See
White, 63 M.S.P.R. at 94. The words "a contributing factor" mean
"any factor which, alone or in connection with other factors, tends to
affect in any way the outcome of the decision." See 5 C.F.R. §
1209.4(c)(1997). One of the many possible ways to show that
whistleblowing was a contributing factor in a personnel action is to
show that “the agency official taking the action had actual or
constructive knowledge of the disclosure and acted within such a
period of time that a reasonable person could conclude that the
disclosure was a factor in the personnel action. See 5 U.S.C. §
1221(e)(1)(A), (B); Scott v. Department of Justice, 69 M.S.P.R.

adx A, p. 5

6
211, 238 (1995). Thus, circumstantial evidence of knowledge of the
protected disclosure and a reasonable relationship between the time
of the protected disclosure and the time of the personnel action will
establish, prima facie, that the disclosure was a contributing factor
to the personnel action. See Horton v. Department of the Navy, 66
F.3d 279, 284 (1995), cert. denied, 116 S. Ct. 1271 (1996). To
counter the appellant's prima facie evidence that the protected
disclosure was a contributing factor in a personnel action, the agency
may introduce any relevant and competent evidence, including the
reasons it acted.

The appellant may establish constructive knowledge of a
protected disclosure, for purposes of showing that whistleblowing
was a contributing factor in a personnel action, by demonstrating that
an individual with actual knowledge influenced the official taking the
action or by demonstrating that a person with constructive
knowledge influenced the official taking the action, and the
personnel action occurred within a period of time such that a
reasonable person could conclude that the disclosure was a
contributing, factor in the personnel action. Powers v. Department
of the Navy, 69 M.S.P.R. 150, 156 (1995). As with any other piece
of circumstantial evidence, this is simply one more factor for the trier
of fact to consider. See id. Such other factors may include the
strength or weakness of the agency's reasons for taking the action,
whether the whistleblowing was personally directed at the proposing
or deciding officials, and whether these individuals had a desire or
motive to retaliate against the appellant. See Caddell v. Department
of Justice, 66 M.S.P.R. 347, 351 (1995), aff'd, 96 F.3d 1367 (Fed.
Cir, 1996). Any weight given to a whistleblowing disclosure, either
alone or in combination with other factors, can satisfy the
contributing factor standard. See Mausser, 63 M.S.P.R. at 44.
1990 Disclosure :

The appellant testified that his supervisor, Mr. Rios, did not
adversely affect his 1990-1993 performance appraisal ratings, all of
which were "superior" with outstanding elements. The appellant
testified that he believed that these ratings came from three or four
senior supervisors with some input from Mr. Rios. The appellant
testified that Mr. Rios directly affected his 1994 performance
appraisal rating in retaliation for his disclosure about Mr. Rios’
misuse of a government credit card. The appellant testified

adx A, p. 6

-
that he informed Mr. Whiting verbally, on an unspecified date, about
Mr. Rios' misuse. See Hearing Tape 1, Sides 1, 2.

As Mr. Rios was not called by either side, no evidence was
adduced that Mr. Rios had any knowledge of the protected disclosure
made to Mr. Whiting in 1990 of at any time subsequent. In passing,
I note that the only evidence of Mr. Rios’ opinion of appellant are the
highly laudatory comments of April 19, 1994 in appellant's mid-year
appraisal. See LAF, Tab 6, Subtab 2-2. Moreover, the agency offered
credible evidence that the appellant's lower rating was due to his
performance. Mr. Eugene Tournour, the appellant's third-level
super-visor and the author of his performance appraisal ratings,
testified without contradiction that Mr. Rios had no input into the
final result whatsoever. Mr. Whiting testimony echoed Mr.
Toumour's.

It is possible, however, that even if the appellant's supervisor
did not have actual knowledge of the disclosure, to find that imputed
knowledge impermissibly influenced his decision. Cf Marchese v.
Department of the Navy, 65 M.S.P.R. 104, 108-09 (1994) (an
appellant may establish constructive knowledge by demonstrating
that an individual with actual knowledge of the disclosure influenced
the official taking a retaliatory action). The appellant did not offer
any evidence as to how his supervisor would have been aware that he
made a protected disclosure to Mr. Whiting in 1990.

In light of these admissions, and in view of the remoteness
in time, almost 4 years had elapsed between the protected disclosure
and the performance appraisal rating, I find the 1990 disclosure was
not a contributing factor to the appellant’s 1994 performance
appraisal rating. See Powers v. Department of the Navy, 69 M.S.P.R.
150, 155 (1995); Rychen v. Department of the Army, 51 M.S.P.R.
179, 183 (1991).

The 1994 Disclosure.

The appellant testified that he also believed that his
performance appraisal was lowered as a result of his June 1994
grievance memorandum. See Hearing Tape, No. |, Sides 1 and 2.
The appellant's testimony indicated that the subject matter of his
grievances revolved around a difference of opinion among
accounting professionals as to application of regulations to working
papers. The appellant's prolix testimony referred to a clash with his
immediate supervisor, Mr. Rios, concerning "accounting

adx A, p.7

8

principles," alleged violation of unspecified "rules and regulation,"
and other irregularities and general disagreement with procedures.
The appellant also indicated that most of the content of his testimony
was not before the OSC. See Hearing tape 1, Side 2.

The appellant's second- and third-level supervisors, Mr.
Whiting and Mr. Tournour, provided unrebutted testimony that the
appellant had never informed them of any wrongdoing or violations
of regulatory or statutory laws, although both were aware of
appellant's grievances. Mr. Whiting testified that the appellant had
complaint to him about procedural accounting rules since he arrived
in Puerto Rico in 1989. Mr. Whiting described the appellant's
attitude toward his immediate supervisor, Mr. Rios, and the rules of
accounting as: "Rafael's way or no way." As noted above, both Mr.
Whiting and Mr. Toumour testified that Mr. Rios had little or no
input into the appellant's performance appraisals and that the
appellant's present performance warranted the performance appraisal
he received.

In his grievances, the appellant failed to specify any specific
statute, rule or regulation violated by his immediate supervisor. See
IAF; Tab 6, Subtabs 3-1, , 3-2, and 3-3. There is no evidence that
either the appellant's second- or third- level supervisor or Mr. Rios
had a desire or opportunity to retaliate against the appellant because
of his protected disclosure. Accordingly, I find the appellant's claim
to be without merit.

Appellant's allegation of non-selection

As to appellant's non-selection, no evidence was adduced at
the hearing by either side. Accordingly, I find that the appellant
abandoned this issue at the hearing. Assuming, that the appellant did
not abandon this issue by the failure to offer any evidence at the
hearing, there is no evidence of record establishing that his protected
disclosures were a contributing factor in the agency's decision not to
select him for the position of Auditor, GS-13.

DECISION

The appeal is request for corrective action is DENIED.

adx A, p.8

FOR THE BOARD:
(signed by:)
William J. Lee
Administrative Judge

NOTICE TO PARTIES CONCERNING SETTLEMENT
The date that this initial decision becomes final, which is set forth
below, is the last day that the administrative judge may vacate the
initial decision in order to accept a settlement agreement into the
record. See 5 C.F.R. § 1201.112(a)(5).

NOTICE TO APPELLANT

This initial decision will become final on January 22, 1998, unless
a petition, for review is filed by that date or the Board reopens the
case on its own motion. This is an important date because it is the
last day on which you can file a petition for review with the Board.
The date on which the initial decision becomes final also controls
when you can file a petition for review with the Court of Appeals for
the Federal Circuit. The paragraphs that follow tell you how and
when to file with the Board or the federal court. These instructions
are important because if you wish to file a petition, you must file it
within the proper time period.

BOARD REVIEW

You may request Board review of this initial decision by filing a
petition for review. Your petition, with supporting evidence and
argument, must be filed with:

. The Clerk of the Board

Merit Systems Protection Board
1120 Vermont Avenue, NW., Room 806
Washington, DC 20419

If you file a petition for review, the Board will obtain the record in
your case from the administrative judge and you should not submit -
anything to the Board that is already part of the record. Your petition
must be postmarked or hand-delivered no later than the date this
initial decision becomes final. If you fail to provide a statement with
your petition that you have either mailed or hand-delivered a copy of
your petition to the agency, your petition will be rejected and
returned to you.

adx A, p. 9

10

JUDICIAL REVIEW
If you are dissatisfied with the Board’s final decision, you
may file a petition with:

The United States Court of Appeals
for the Federal Circuit
717 Madison Place, NW.
Washington, D.C. 20439

You may not file your petition with the court before this
decision becomes final. To be timely, your petition must be received
by the court no later than 30 calendar days after the date this initia!
decision becomes final.

NOTICE TO AGENCY/INTERVENOR
The agency or intervenor may file a petition for review of
this initial decision in accordance with Board’s regulations.

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

NEW YORK FIELD OFFICE
RAFAEL NATER (pro-se) ) DOCKET NUMBER
Appellant
) NY-1221-98-0272-S-1
v.
)
RICHARD RILEY, SECRETARY
OF U.S. DEPARTMENT OF ) DATE: May 12, 1998
EDUCATION,
Agency )

Rafael Nater, Guaynabo, Puerto Rico, pro se.
No designated representative for the agency.

BEFORE

Joseph A. Hailock
Administrative Judge

ORDER DENYING STAY REQUEST

INTRODUCTION
On March 30, 1998, the Board received the appellant's timely request

for a stay of the agency's action removing him from the position of

Auditor, GS-12, effective February 26, 1998.' For the reasons set
forth below, the request is DENIED.

' The request was mistakenly sent to the Office of the Clerk on March 31,
1998. It was received back in this office on May 5, 1998.

adx B, p. 1

ANALYSIS AND FINDINGS
Background

A stay of a personnel action may be sought under 5 U.S.C.
§ 1221(c) by an employee who reasonably believes that the action
was taken in reprisal for whistle blowing activities. See 5 U.S.C. §
2302(b)(8); 5 C.F.R. § 1209.1; Williams v. Department of Defense,
46 M.S.P.R. 549, 551 (1991). Under the Board's regulations, a stay
request must contain, inter alia, evidence and/or argument showing
that the action complained of was based on whistle blowing and that
there is a substantial likelihood that the appellant will prevail on the
merits of the underlying appeal. See 5 C.F.R. § 1209.9(a)(6)(ii) and
(iii).

The appellant his not shown he is entitled to a stay.-

In order to show that he engaged in whistle blowing, the
appellant must show, that he made a disclosure protected by 5 U.S.C.
§ 2302(b)(8), i.e., he disclosed information he reasonably believed
evidenced a violation of law, rule, or regulation, gross
mismanagement, gross waste of funds, abuse of authority, or
substantial and specific danger to public health or safety. In order to
prevail on the merits of his appeal, the appellant must demonstrate
by preponderant evidence that a disclosure described under 5 U.S.C.
§ 2302(b)(8) was a contributing factor in the action complained of.
See McDaid v. Department of Housing and Urban Development, 46
M. M.S.P.R. 416, 420 (1990).

Here, the stay request is imbedded in a 51-page narrative of
events submitted by the appellant. In an introductory overview, the
appellant alleges that "[dJuring March 1990 to June 1994, [he] made
a series of disclosures about behavior and professional (audit)
irregular practices at the Office of Inspector General ...” Under
"Details" it states that the appellant "raised issues as to tardiness,
abusive use of breaks and lunch time ..., abusive use of the official
telephone line for personal purposes ..., uses of material and office
equipment for other than official government purposes." Further, that
the appellant became aware of using "the Government credit card for
personal use and use of the government ID for non government
purposes.”

I find the latter disclosures, if reasonably believed, would
constitute whistle blowing. The appellant, however, has not
provided enough specific information

adx B, p. 2

OOOO

3
concerning his disclosures to support a finding the matter s he
reported were such that a reasonable person in his position would
believe they constituted whistle blowing. As to the former
disclosures in the overview concerning "irregular practices," I find
that these involve a difference of opinion between the appellant and
others over the application of accounting standards and do not
constitute whistle blowing. Furthermore, even assuming the appellant
engaged in whistle blowing, he must demonstrate by a preponderance
of the evidence that his protected disclosures were a contributing
factor in the agency's decision to remove him. One of the ways an
appellant can meet this burden is by evidence that the official taking
the personnel action at issue knew of the disclosures, and the
personnel action occurred within a period of time such that a
reasonable person could conclude that the disclosures were a
contributing factor in the personnel -action. See Horton v.
Department of the Navy, 66 F.3d 279, 283-84 (Fed. Cir. 1995), cert.
denied, 116 S.Ct. 1271 (1996). Here, the appellant cites disclosures
made from 1990 to 1994, long before the agency proposed his
removal in November 1997. Thus, I find it unlikely the appellant
could satisfy the contributing factor standard under the
knowledge/timing test. And I do not find that there is other evidence,
such as that pertaining to the strength and weaknesses for taking the
personnel action, whether the appellant's whistle blowing was
personally directed, at the proposing or deciding officials, and
whether these officials had a desire or motive to retaliate against the
appellant which supports a conclusion that whistle blowing, was a
contributing factor in the agency's action. Accordingly, I do not find
the appellant has demonstrated a substantial likelihood he will
prevail on the merits of his appeal.

Accordingly, I find that the appellant has not shown that he
engaged in whistle blowing and that there is a substantial likelihood
that he will prevail on the merits of the appeal. Under the
circumstances, I find it unnecessary to decide whether a stay would
result in extreme hardship to the agency. See 5 C.F.R. § 1209.10.

DECISION
The request for stay is denied.

adx B, p. 3

FOR THE BOARD (signed by:) Joseph A. Hallock
Administrative Judge

adx B, p. 4

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

RAFAEL NATER (pro-se) - - -) DOCKET NUMBER
Appellant Te «tim
) NY-1221-96-0334-W-1
v.
)
RICHARD RILEY, SECRETARY
OF U.S. DEPARTMENT OF ) DATE: NOV 3 1998
EDUCATION,
Agency )

Rafael Nater, Guaynabo, Puerto Rico, pro se.
Anthonier L. White, Esquire, Washington, D.C., for the agency.

BEFORE

Ben L. Erdreich, Chairman
Beth S. Slavet, Vice Chair
Susanne T. Marshall, Member

ORDER

After full consideration, we DENY the appellant's petition
for review of the initial decision issued on December 18, 1997,
because it does not meet the criteria for review set forth at 5 C.F.R.
§ 1201.115. After the close of the record on petition for review, see
5 C.F.R. § 1201.114(i), the appellant submitted a reply to the
agency's response to his petition for review; the Board has not
considered this reply because the appellant has not shown good cause
for his delayed filing. See id. This is the Board's final order in this
appeal. The initial decision in this appeal is now final. 5 C.F.R. §
1201.113(b).

adx C, p. 1

NOTICE TO THE APPELLANT REGARDING
FURTHER REVIEW RIGHTS

You have the right to request the United States Court of
Appeals for the Federal Circuit to review the Board's final decision
in your appeal if the court has jurisdiction. See 5 U.S.C. §
7703)(a)(1). You must submit your request to the court at the
following address:

United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439

The court must receive your request for review no later than
60 calendar days after receipt of this order by your representative, if
you have one, or receipt by you personally, whichever receipt occurs
first. See 5 U.S.C. § 7703(b)(1).
FOR THE BOARD:

(signed by:) Robert E. Taylor
Clerk of the Board

Washington, D.C.

adx C, p.2

oe

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

NEW YORK FIELD OFFICE
RAFAEL NATER (pro-se) ) DOCKET NUMBER
Appellant

) NY-1221-98-0401-W-1

)
RICHARD RILEY, SECRETARY

OF U.S. DEPARTMENT OF ) DATE: November 23, 1998
EDUCATION,

Vv.

Agency

—

ORDER

After careful consideration of the record on the issue of
jurisdiction, I have determined that the Board lacks jurisdiction over
this appeal. Because the appellant did not plead facts which, if true, ;
would establish jurisdiction, his request for a hearing is DENIED. )
See Manning v. Merit Systems Protection Board, 742 F.2d 1424,
1427-28 (Fed. Cir. 1994). Because of my determination concerning
jurisdiction, I find it unnecessary to rule on any pending motions.
An initial decision containing my findings of fact and conclusions of
law will be forthcoming. All further proceedings in this appeal are
STAYED pending the issuance of my initial decision.

FOR THE BOARD:

(signed by:) Joseph A. Hallock
Administrative Judge

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

NEW YORK FIELD OFFICE
RAFAEL NATER (pro-se) ) DOCKET NUMBER
Appellant
) NY-1221-98-0401-W-1
v.
)
RICHARD RILEY, SECRETARY
OF U.S. DEPARTMENT OF ) DATE: December 31, 1998
EDUCATION,
Agency )

Rafael Nater, Guaynabo, Puerto Rico, pro se.
Tracy Sasser, Esquire, Washington, D.C., for the agency.

BEFORE

Joseph A. Hallock
Administrative Judge

INITIAL DECISION

INTRODUCTION
The appellant filed a timely individual right of action (IRA)

appeal alleging that his performance evaluation for the year which
ended, April 30, 1997, was based on whistleblowing activities. See
Appeal File (AF) Tab 1. For the reasons set forth below the appeal
is DISMISSED for lack of jurisdiction. Because the appellant did not
plead facts which, if true, would establish jurisdiction, the hearing he
requested was not held. See Manning v. Merit Systems Protection
Board, 742 F.2d 1424, 1427-28 (Fed. Cir. 1984).

adx E, p. 1

bas

RISDICTION
The Board's jurisdiction is not plenary, but is limited to those

areas specifically granted by some law, rule or regulation.. See
Antolin v. Department of Justice, 825 F.2d 1395, 1396 (Fed. Cir.
1989), cert. denied, 498 U.S. 868 (1990). The appellant has the
burden of proof by a preponderance of the evidence’ on the issue of
jurisdiction. See 5 C.F.R. § 1201.56(a)(2). _

To establish the Board’s jurisdiction over an IRA appeal, an
appellant must show, by a preponderance of the evidence, that: (1)
He engaged in whistleblower activity by making a disclosure
protected by 5 U.S.C. § 2302(b)(8), ie., he disclosed information he
reasonably believed evidenced a violation of law, rule, or regulation,
gross mismanagement, a gross waste of funds, abuse of authority, or
a substantial and specific danger to public health or safety; (2) the
agency took or failed to take, or threatened to take or fail to take, a
"personnel action" as defined in 5 U.S.C. § 2302(a)(2) after the July
9, 1989, effective date of the Whistleblower Protection Act (WPA);
and (3) he raised the whistleblower issue before the Office of Special
Counsel and proceedings before the OSC have been exhausted. See
Geyer v. Department of Justice, 63 M.S.P.R. 13, 16-17 (1994).

I issued an Order to Show Cause which informed the
appellant of the requirements which had to met in order for the Board
to have jurisdictions over his appeal. See AF, Tab 3. The Order to
Show Cause informed the appellant that his appeal would be
dismissed unless he alleged facts which, if proven, would establish
that the Board had jurisdiction over his appeal. Jd. The Order to
Show Cause required the appellant to file a copy of all
‘correspondence which he sent to the OSC and all correspondence he
received from the OSC concerning the appealed action. Included
with the appellant's response to the Order to Show Cause is the
complaint which he filed with the OSC. See Tab 4, Report of
Prohibited activity. In the complaint, the appellant alleged that the
motives for the

' Preponderant evidence is that degree of relevant evidence that a
reasonable person, considering the record as a whole, would accept as sufficient to
find that a contested fact is more likely true than not. See 5 C.F.R. § 1201.56(c){(2).

adx E, p.2

3

agency's action were grievances and an EEO complaint which he
filed and his refusal to desist from grievances and appeals he filed
against the agency. /d. at 1-2. The appellant also alleged that because
he "noticed' many conditions which lead [him] to perceive probable
wrong doing[,]" he started asking for written orders and directives.
The appellant also stated he was sending to the OSC a copy of the
"answers" he provided in response to the 1997 evaluation. Id at 4.
This is an apparent reference to a formal grievance which the
appellant filed relative to the 1997 evaluation which is in the record.
See AF, Tab 1.

To the extent the appellant alleged before the OSC that his
1997 evaluation was in reprisal for grievances and an EEO complaint
which he filed, this can not serve as a basis for the Board to exercise
jurisdiction over his IRA appeal. The essential difference between
the protections of 5 U.S.C. §§ 2308(b)(8) and 2308(b)(9) is the
difference between "reprisal based on disclosure of information and
reprisal based upon exercising a right to complain." Serrao v. Merit
Systems Protection Board, 95 F.3d 1569, 1575 (Fed. Cir. 1996)
(quoting Spruill v. Merit Systems Protection Board, 978 F.2d 679,
690 (Fed: Cir. 1992)). Disclosures made only in grievances and EEO
complaints are not protected under the WPA. See Serrao, 95 F.3d at
1574-75; Thomas v. Department of the Treasury, 77 M.S.P.R. 224,
230 (1998); Martin v. Department of the Air Force, 73 M.S.P.R. 574,
578-79 (1997). Alleged protected disclosures not raised before the
OSC are not within the Board's jurisdiction. See Brewer v.
Department of the Interior, 76 M.S.P.R. 363, 367 (1997).

Beyond the appellant's claims to the OSC that his 1997
evaluation was in reprisal for grievances and an EEO complaint
which he filed, I find nothing in the balance of his complaint to the
OSC which shows he made disclosures which evidenced a violation
of law, rule, or regulation, gross mismanagement, a gross waste of
funds, an abuse o authority, or a substantial and specific danger to
public health or safety. The alleged protected disclosures contained
in the complaint do not disclose "the type of fraud, waste, or abuse
that the WPA was intended to reach." Ellison v. Merit Systems
Protection Board, 7 F.3d 1031, 1035 (Fed. Cir. 1993). I find the
alleged "disclosures" represent no more than professional
disagreement, which do not rise to the level of ,

adx E, p. 3

4
whistleblowing disclosures. See Carolyn v. Department of the
Interior, 63 M.S.P.R. 684, 691-92, review dismissed, 43 F.3d 1485
(Fed. Cir. 1994) (Table), overruled in part on other grounds,
Thomas, 77 M.S.P.R. 224, 236 n. 9 (1998).

Accordingly, the Board lacks jurisdiction over this appeal.

DECISION
The appeal is DISMISSED.

FOR THE BOARD (signed by:) Joseph A. Hallock
Administrative Judge

NOTICE TO APPELLANT

This initial decision will become final on February 4, 1999,
unless a petition, for review is filed by that date or the Board reopens
the case on its own motion. This is an important date because it is
usually the last day on which you can file a petition for review with
the Board. However, if this initial decision is received by you more
than 5 days after the date of issuance, you may file a petition for
review within 30 days after the date you actually receive the initial
decision. The date on which the initial decision becomes final also
controls when you can file a petition for review with the Court of
Appeals for the Federal Circuit. The paragraphs that follow tell you
how and when to file with the Board or the federal court. These
instructions are important because if you wish to file a petition, you
must file it within the proper time period.

BOARD REVIEW

You may request Board review of this initial decision by filing a
petition for review. Your petition, with supporting evidence and
argument, must be filed with: :

The Clerk oi the Board

Merit Systems Protection Board
1120 Vermont Avenue, NW., Room 806
Washington, DC 20419

If you file a petition for review, the Board will obtain the record in

adx E, p. 4

5
your case from the administrative judge and you should not submit
anything to the Board that is already part of the record. Your petition
must be postmarked, faxed or hand-delivered no later than the date
this initial decision becomes final, or if this initial decision is
received by you more than 5 days after the date of issuance, 30 days
after the date you actually receive the initial decision. If you fail to
provide a statement with your petition that you have either mailed,
faxed, or hand-delivered a copy of your petition to the agency, your
petition will be rejected and returned to you.

~ JUDICIAL REVIEW
If you are dissatisfied with the Board’s final decision. you
may file a petition with:

The United States Court of Appeals
for the Federal Circuit
717 Madison Place, NW.
Washington, D.C. 20439

You may not file your petition with the court before this
decision becomes final. To be timely, your petition must be received
by the court no later than 60 calendar days after the date this initial
decision becomes final.

NOTICE TO AGENCY/INTERVENOR
The agency or intervenor may file a petition for review of
this initial decision in accordance with Board’s regulations.

adx E, p. 5

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

NEW YORK FIELD OFFICE
RAFAEL NATER (pro-se) ) DOCKET NUMBER
Appellant
) NY-1221-98-0272-W-1
v.
: )
RICHARD RILEY, SECRETARY
OF U.S. DEPARTMENT OF ) DATE: March 2, 1999
EDUCATION,
Agency )

Rafael Nater, Guaynabo, Puerto Rico, pro sé.
Anthonier White, Esquire, Washington, D.C., for the agency.

BEFORE
Joseph A. Hallock
Administrative Judge

INITIAL DECISION

INTRODUCTION
The appellant was employed as an Auditor, GS-12, with the

agency's Office of Inspector General, Northeast Area Puerto Rico
Office, in San Juan, Puerto Rico. He filed a timely individual right
of action (IRA) appeal alleging that his performance appraisals for
the years which ended April 30, 1996, (1996 appraisal) and April 30,
1997 (1997 appraisal), and a 5-day suspension effective October 28,
1996, were base on whistleblowing activities.' He also alleged that
he was discriminated against by the

' The appellant also appealed his removal effective February 26, 1998.
Because the removal was an otherwise appealable action, and the appellant had not
sought corrective action from the Special Counsel for his removal before appealing
to the Board, it was docketed separately. See Nater v. Department of Education,
MSPB Docket No. NY-0752-98-0297-I-1.

adx F, p. 1

2
agency because of his race, national origin, and Political affiliation.
See Appeal File (A-F), Tabs I and 9. For the reasons set forth below,
the appeal is DISMISSED for lack of jurisdiction. Because the
appellant did not plead facts which, if true, would establish
jurisdiction, the hearing he requested was not held. See Manning v.
Merit Systems Protection Board, 742 F.2d 1424, 1427-28 (Fed. Cir.
1984).

JURISDICTION

The Board's jurisdiction is not plenary, but is limited to those
areas specifically granted by some law, rule or regulation.. See
Antolin v. Department of Justice, 825 F.2d 1395, 1396 (Fed. Cir.
1989), cert. denied, 498 U.S. 868 (1990). The appellant has the
burden of proof by a preponderance of the evidence’ on the issue of
jurisdiction. See 5 C.F.R. § 1201.56(a)(2).

To establish the Board’s jurisdiction over an IRA appeal, an
appellant must show, by a preponderance of the evidence, that: (1)
He engaged in whistleblower activity by making a disclosure
protected by 5 U.S.C. § 2302(b)(8), ie., he disclosed information he
reasonably believed evidenced a violation of law, rule, or regulation,
gross mismanagement, a gross waste of funds, abuse of authority, or
a substantial and specific danger to public health or safety; (2) the
agency took or failed to take, or threatened to take or fail to take, a
"personnel action" as defined in 5 U.S.C. § 2302(a)(2) after the July
9, 1989, effective date of the Whistleblower Protection Act (WPA),
and (3) he raised the whistleblower issue before the Office of Special
Counsel and proceedings before the OSC have been exhausted. See
Geyer v. Department of Justice, 63 M.S.P.R. 13, 16-17 (1994).

I issued an Order to Show Cause which informed the
appellant of the requirements which had to met in order for the Board
to have jurisdictions over his appeal. See AF, Tab 4. The Order to
Show Cause informed the appellant that his appeal

2 Preponderant evidence is that degree of relevant evidence that a
reasonable person, considering the record as a whole, would accept as sufficient to
find that a contested fact is more likely true than not. See 5 C.F.R. § 1201.56(c)(2).

adx F, p. 2

3
would be dismissed unless he alleged facts which, if proven, would
establish that the Board had jurisdiction over his appeal. Jd. The
Order to Show Cause required the appellant to file copy of all
correspondence that he sent to OSC concerning the appealed
actions. Included with the appellant’s response to the order to show
Cause are two complaints which he filed with the OSC. See AF, Tab
17, attachment A and B. One complaint is dated January 20, 1997,
and concerned the 1996 appraisal and the suspension. /d., attachment
A. The other is dated May 20, 1998, and concerned the 1997
appraisal. Jd., attachment B.

The 1996 appraisal and the suspension

In his complaint to the OSC, the appellant alleged that the
motives for the agency’s actions were grievances and an EEO
complaint which he filed and his refusal to desist from grievances
and appeals he filed against the agency. See A-F, Tab 17, attachment
A. The appellant alleged that because he "noticed many conditions
which lead [him] to perceive probable wrong doing[,]" he started
asking for written orders and directives. The appellant attached to
the complaint his responses to the findings contained in a Quality
Assurance review of audits in which he participated. Jd.

To the extent the appellant alleged before the OSC that his
1997 evaluation was in reprisal for grievances and an EEO complaint
which he filed, this can not serve as a basis for the Board to exercise
jurisdiction over his IRA appeal. The essential difference between
the protections of 5 U.S.C. §§ 2308(b)(8) and 2308(b)(9) is the
difference between "reprisal based on disclosure of information and
reprisal based upon exercising a right to complain.” Serrao v. Merit
Systems Protection Board, 95 F.3d 1569, 1575 (Fed. Cir. 1996)
(quoting Spruill v. Merit Systems Protection Board, 978 F.2d 679,
690 (Fed. Cir. 1992)). Disclosures made only in grievances and EEO
complaints are not protected under the WPA. See Serrao, 95 F.3d at
1574-75; Thomas v. Department of the Treasury, 77 M.S.P.R. 224,
230 (1998); Martin v. Department of the Air Force, 73 M.S.P.R. 574,
578-79 (1997). Alleged protected disclosures not raised before the
OSC are not within the Board's jurisdiction. See Brewer v.
Department of the Interior, 76 M.S.P.R. 363, 367 ( 1997).

adx F, p. 3

4
Beyond the appellant's claims to the OSC that his 1996
evaluation and the suspension were in reprisal for grievances and an
EEO complaint which he filed, I find nothing in the balance of his
complaint to the OSC which shows he made disclosures which
evidenced a violation of law, rule, or regulation, gross
mismanagement, a gross waste of funds, an abuse o authority, or a
substantial and specific danger to public health or safety. The
alleged protected disclosures contained in the complaint do not
disclose "the type of fraud, waste, or abuse that the WPA was
intended to reach." Ellison v. Merit Systems Protection Board, 7 F. 3d
1031, 1035 (Fed. Cir. 1993). I find the alleged "disclosures",
including the appellant’s responses to the findings of the Quality
Assurance review team, represent no more than professional
disagreement, which do not rise to the level of whistleblowing
disclosures. See Carolyn v. Department of the Interior, 63 M.S.P.R.
684, 691-92, review dismissed, 43 F.3d 1485 (Fed. Cir. 1994)
(Table), overruled in part on other grounds, Thomas, 77 M.S.P.R.
224, 236 n. 9 (1998).
The 1997 appraisal

The instant appeal was filed on March 30, 1998. The
appellant's complaint to the OSC concerning the 1997 appraisal is
dated May 27, 1998. See A.F., Tab 17, attachment B. Thus, the
record is clear that at the time the appeal was filed the appellant has
not raised the whistleblower issue before the OSC and proceedings
before the OSC could not have been exhausted. The Board, therefore,
had no basis on which to exercise jurisdiction over the appeal
concerning the 1997 appraisal at the time it was filed.’

Moreover, IRA appeals under the WPA are not subject to the
provisions of 5 U.S.C. § 7701 or § 7702 thus, the Board lacks
jurisdiction to adjudicate the merits of the personnel actions at issue
in an IRA appeal and lacks the authority to decide, in conjunction
with an IRA appeal, the merits of an appellant's allegations of
prohibited discrimination. Marren v. Department of Justice, 51
M.S.P.R. 632, 638-39 (1991),

=

> The appellant's claim that the 1997 appraisal was based on
whistleblowing activities later became the subject of a separately filed appeal. |
issued an initial derision which dismissed that appeal for lack of

adx F, p. 4

| 5
aff'd, 980 F.2d 745 (Fed. Cir. 1992) (Tabie), modified in part on
other grouna’s, Robinson v. U-S. Postal Service, 63 M.S.P.R. 307,
323 a. 13 (1994). Accordingly, the Board lacks jurisdiction over this

appeal.‘
DECISION
The appeal is DISMISSED.

FOR THE BOARD (signed by:) ~—‘ Joseph A. Hallock
Administrative Judge

NOTICE TO APPELLANT

This initial decision will become final on April 6, 1999,
unless a petition, for review is filed by that date or the Board reopens
the case on its own motion. This is an important date because it is
usually the last day on which you can file a petition for review with
the Board. However, if this initial decision is received by you more
than 5 days after the date of issuance, you may file a petition for
review within 30 days after the date you actually receive the initial
decision. The date on which the initial decision becomes final also
controls when you can file a petition for review with the Court of
Appeals for the Federal Circuit. The paragraphs that follow tell you
how and when to file with the Board or the federal court. These
instructions are important because if you wish to file a petition, you
must file it within the proper time period.

BOARD REVIEW

You may request Board review of this initial decision by filing a
petition for review. Your petition, with supporting evidence and
argument, must be filed with:

The Clerk of the Board

Merit Systems Protection Board
_ 1120 Vermont Avenue, NW., Room 806

Washington, DC 20419
If you file a petition for review, the Board will obtain the record in
your case from the administrative judge and you should not submit
anything to the Board that is already part

* jurisdiction. See Nater v. Department of Education, MSPB Docket No-
NY-1221-98-0401-W-1 (Initial Decision, December 30, 1998).

adx F, p.5

6
of the record. Your petition must be postmarked, faxed or hand-
delivered no later than the date this initial decision becomes final, or
if this initial decision is received by you more than 5 days after the
date of issuance, 30 days after the date you actually receive the
initial decision. If you fail to provide a statement with your petition
that you have either mailed, faxed, or hand-delivered a copy of your
petition to the agency, your petition will be rejected and returned to
you.

JUDICIA VIEW .
If you are dissatisfied with the Board’s final decision, you
may file a petition with:

The United States Court of Appeals
for the Federal Circuit
717 Madison Place, NW.
Washington, D.C. 20439

You may not file your petition with the court before this decision
becomes final. To be timely, your petition must be received by the
court no later than 60 calendar days after the date this initial decision
becomes final.

NOTICE TO AGEN TERVENOR

The agency or intervenor may file a petition for review of
this initial decision in accordance with Board’s regulations.

adx F, p. 6

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

NEW YORK FIELD OFFICE
RAFAEL NATER (pro-se) ) DOCKET NUMBER
Appellant

) NY-0752-98-0297-1-]
v.

RICHARD RILEY, SECRETARY
OF U.S. DEPARTMENT OF ) DATE: March 18, 1999
EDUCATION,

Agency ) -

Rafael Nater, Guaynabo, Puerto Rico, pro se.
Anthonier White, Esquire, Washington, D.C., for the agency.

BEFORE

Joseph A. Hallock
Administrative Judge

INITIAL DECISION
INTRODUCTION

The appellant filed a timely appeal of the agency's decision to
remove him from the position of Auditor, GS-12, effective February
27, 1998. The hearing he requested was held on July 9 and 10, 1998.
The Board has jurisdiction over this appeal.. See 5 U.S. C. §§ 751
l(a), 7512, and 7513. For the reasons set forth below, the agency’s
action is AFFIRMED.

ie 2
ANALYSIS AND FINDINGS.
Background

The agency proposed the appellant's removal based on numerous
‘charges of insubordination and unprofessional, disrespectful, and,
inappropriate conduct,. the specifications of which were detailed in
its November 17, 1997, proposal noticed. See Appeal File (A-F) Tab
6, Subtab 4e. On January 25, 1998, the agency's deciding, official
issued a decision removing the appellant from his position based on
three sustained charges of insubordination and one sustained charge
of inappropriate and unprofessional behavior. Jd. Subtab 4b. This
appeal followed. In his appeal, the appellant asserted the affirmative
defenses of whistleblower retaliation and national origin

discrimination. See AF, Tabs 1, 4 and 10 (audio tape).

Burdens of proof

The agency bears the burden of proving each element of its
charges by a preponderance of the evidence.' Burroughs v.
Department of the Army, 918 F.2d 170, 172 (Fed. Cir. 1990). The
agency must also prove: (1) The existence of a nexus between the
sustained charges and the efficiency of the service, 5 U.S.C. §
7513(a); and (2) the reasonableness of its penalty. See Douglas v.
Veterans Administration, 5 M.S.P.R. 280, 302 (1981). The appellant
bears the burden of proving his affirmative defenses by a
preponderance of the evidence. See 5 C.F.R. § 1201.56(a)(2){iii).

Factual background

The appellant was employed as an Auditor with the agency's
Office of Inspector General, Northeast Area, Puerto Rico Office, in:
San Juan, Puerto Rico. During all relevant times, he was under the
supervision of Guido G. Piacesi, Celia Ruiz or Maureen Duddy.
Piacesi the proposing official, was the Regional Inspector General
for Audit (RIGA) and Area Manager. Hugh M. Monaghan, the
deciding official, was the Assistant Inspector General for Operations,
Eastern Area, at the time he issued his decision to

' Preponderant ev:dence is that degree of relevant evidence that a
reasonable person, considering the record as a whole, would accept as sufficient to
find that a contested fact is more likely true than not. See 5 C.F.R. § 1201.56(c)(2).

adx G, p. 2

3
remove the appellant. The appellant worked on audits of educational
institutions which received funds from the agency for student loans
and grants. The purpose of the audits was to insure that the funds
were being used in accordance with law. See Hearing Transcript,
Vol. I(HTI) at 112. An auditor, such as the appellant, would prepare
working papers which formed the foundation for an audit's
conclusions. The conclusions would be embodied in a final report
signed by Piacesi. /d. at 113. It was customary for the working papers
to be reviewed by a senior auditor, supervisory auditor, or auditor-in-
charge, and for the auditor to respond to the review notes. Jd. at 1 14-
19. 7
The agency proved charge one - insubordination.

The agency charged the appellant with insubordination on
December 10, 1996. The specifications of this charge were that the
appellant refused to comply with Ruiz's directions to review his
International Junior College (IJC) working papers as an assurance
they met the Government Auditing Standards. Insubordination is
define as a refusal to obey some order that a superior officer is
entitled to give and have obeyed. See Hamilton v. U.S. Postal
Service, 71 M.S.P.R. 547, 555 (1996); Fleckenstein v. Department
of the Army, 63 M.S.P.R. 470, 473 (1994) (citing Webster v.
Department of the Army, 911 F.2d 679, 684 (Fed. Cir. 1990), cert.
denied, 502 U.S. 861 (1991). In order to prove insubordination, the
agency must show that the appellant's refusal to obey a proper order
was intentionai and willful disobedience. See Hamilton, 71 M.S.P.R.
at 555.

On July 12, 1996, Piacesi had sent the appellant a message which
stated, “I want you to understand that without question, you should
respond to Celia's request for information whether the response is
direct work related or administrative in nature.” See AF, Tab 6,
Subtab 4e at 9. Ruiz testified that on December 10, 1996, she asked
the appellant to review his IJC working papers to insure they were in
compliance with a Quality Assurance Review checklist and
Government Auditing Standards. She testified that the appellant
refused to do what was asked. See HTI at 177-83. She testified that
on December 13, 1996, she sent the appellant her instructions in an
inter-office, memo. See HTI at 184; AF, Tab 6, Subtab 4h. She
testified that the appellant never did what

adx G, p. 3

: 4
was directed and she had to do the work. See HTI at 186. Piacesi
testified he had to assign others to do the work. Jd. at 42-43.

The appeHant testified that on December 10, 1996, he told Ruiz
that if she wanted him to do more work on IJC, he needed a certain
amount of information in writing before he would do more work.
See Hearing Transcript, Vol. II (HTII) at 317. He attached other
conditions to complying with Ruiz’s directions. Jd. He responded to
Ruiz's December 13, 1996, memo in a memorandum dated December
17, 1996. See AF, Tab 7, Subtab F. In his memorandum, the
appellant stated it was not "appropriate" for him to comply with
Ruiz's request because he had already responded to her review
contents, his two prior performance evaluations were under review,
he was the subject of a complaint by the auditee which might result
in a "legal issue," and he was “retired” from that audit. The appellant
closed the memorandum by setting forth conditions to be met by the
agency before he would comply with Ruiz's instructions. He stated
that compliance with his conditions had to be in writing and verbal
instructions would not be "proper." The appellant contends that these
circumstances show he did not willfully refuse to obey a proper
order. I disagree.

The appellant sought to impose conditions which the agency had
to meet before he would do what he was asked by Ruiz. An employee
does not have the unfettered right to disregard an order merely
because there is substantial reason to believe that the order is not
proper; he must first comply with the order and then register his
complaint or grievance, except in certain limited circumstances
where obedience would place the employee in a clearly dangerous
situation, or when complying with the order would cause him
irreparable harm. Cooke v. U.S. Postal Service, 67 M.S.P.R. 401,
407-08 (1995), aff'd, 73 F.3d 380 (Fed. Cir. 1995) (Table). The
record does not show that the appellant's compliance with Ruiz's
order would have placed him in a clearly dangerous situation or
caused him irreparable harm.

Piacesi testified that, after receiving the aypellant's
memorandum, he spoke with the appellant and reminded him that he
had to comply with Ruiz's directions. HTI at 40. He explained to the
appellant the need for the work he was being asked to perform. He
testified that there was always a risk of litigation attendant upon an
audit, but the, work

adx G, p.4

5
the appellant was directed to perform was in furtherance of putting
the agency in a position to be able to defend against that risk. Jd. at
81. Under the circumstances, I find that the appellant's conduct
constituted intentional and willful disobedience. Accordingly, I find
the agency met its burden of proof on this charge.

The agency proved charge two - insubordination.

The agency charged the appellant with insubordination on March
19, 1997. The specification of this charge was that the appellant
refused to comply with Duddy’s direction to respond to her review
notes on his IJC working papers. Piacesi testified that he temporarily
assigned Duddy to supervise the Puerto Rico office in February
1997. He testified that he informed the staff of the office, including
the appellant, of this during a conference call before she reported to
Puerto Rico. Duddy's permanent position was in Boston. /d. at 44-
45. Duddy testified that on March 19, 1997, she gave the appellant
her review notes of his working papers and asked him to respond.
Later in the day, when it was apparent the appellant had not done
anything to comply with her request, she took the notes back. She
testified that, when she took the notes back, she specifically informed
the appellant that she viewed his inaction as a refusal to do the work
she asked him to perform. Jd. at 224-30. Duddy's version of events
was corroborated by Ruiz. Jd. at 186-88.

The appellant testified that he told Duddy that her review notes
were ill intentioned, not done for legitimate reasons, were just done
to harass him, ant to serve as a pretext for his removal. See HTII at
322. He testified he told Duddy that before he complied with her
request he wanted an opportunity to discuss the matter with hi¢;her
level official. Jd at 401. The appellant denied he intentiorally
refused to respond to Duddy’s review notes. I disagree. I find the
appellant's response to Duddy's direction was to raise conditions
precedent which the agency had to meet before he would comply
with the direction he was given. I find he could not require that his
conditions be met before he complied. I find that by imposing
conditions precedent on his compliance, he effectively refused to
comply with Duddy’s direction. The record does not show that the
appellant's compliance with Duddy's direction would have placed
him in a clearly dangerous situation or caused him irreparable harm.
See Cooke, 67 M.S.P.R. at 407-08.

adx G, p. 5

I find the appellant's refusal to comply with Duddy’s direction was
not excusable and constituted intentional and willful disobedience.
Accordingly, I find the agency met its burden of proving this charge.

The agency charged the appellant with insubordination on July
31, 1997. The specification of this charge was that in a meeting with
Piacesi on July 31, 1997, the appellant refused Piacesi's direction that
he and Ruiz work together as an audit team. Piacesi testified that
when he met with the appellant on July 31, 1997, Porfirio Rios Rojas
(Rios), an employee in the Puerto Rico office who once supervised
the appellant, had taken another job leaving only the appellant and
Ruiz in the office. It, therefore, became important to Piacesi to have
the appellant work under the direction of Ruiz as part of an audit
team in order to accomplish the work of the office. Piacesi testified
that one of his purposes in meeting with the appellant "was to talk to
him about whatever it was that we could do to get him to cooperate
with us and -- and work as a team member{,] I'd be willing to do.”
HT] at 50. He testified that the appellant refused to do this.

The appellant testified that Piacesi ordered him to work with
Ruiz without asking questions, without requiring written instruction,
and without documenting his disagreements with her. He testified he
told Piacesi that in a team approach he and Ruiz should be reviewing
each other's working papers instead of just Ruiz reviewing his
working papers. He testified that Piacesi told him he would have to
work under Ruiz's supervision and to do what she asked "without
doing (sic) any questions." HT 1'.11 at 329. He testified that he
would not work under such conditions because that would simply be
allowing the office to "frame" him.

I find, considering the record as a whole, that what the appellant
characterized as Piacesi telling him he would have to work under
Ruiz's supervision without asking any questions, was actually Piacesi
telling him he would have to accept direction from Ruiz without
questioning her authority, insisting that her directions be in writing,
or seeking to impose conditions precedent to complying with her
directions as he had done in the

adx G, p. 6

7
past. I find the appellant refused to do this. I find his refusal was
willful and intentional. Accordingly, I the agency proved this charge.
The agency proved charge four - inappropriate and unprofessional
behavior.

The agency charged the appellant with inappropriate and
unprofessional behavior on October 21, 1997. The specification of
this charge was that in a telephone conversation with Duddy on
October 21, 1997, the appellant became irate, yelled at her, and
claimed that her questioning of his work was all part of a conspiracy
against him. Duddy testified that she called the appellant from
Boston to discuss concerns she had about a confirmation letter sent
by the appellant to students at Interamerican University. She testified
that the appellant "started yelling and screaming at [her] that no one
has questioned his work in the last seven years, and this is all part of
the conspiracy against him." HT I at 233. She testified it was hard
for her to get a word in edge-wise because the appellant was yelling
so much. She testified that right after her call to the appellant, she
received a call from Ruiz who had heard the appellant yelling and
screaming and was concerned to know if Duddy was all right. /d. at
234-36. Duddy's version of events was corroborated by Ruiz. Jd. at
188-92.

The appeliant testified that Duddy was "not calm" and spoke to
him in a “high tone," but she was "not exactly yelling[.]" He testified
that Duddy got on his nerves and he told her she was colluding to get
rid of him, harassing him, and provoking him. He testified that at a
certain point he "got even more mad" at Duddy. See HTII at 336-38.
An agency is entitled to expect its employees to conform to certain
accepted standards of civil behavior and decorum. See Redfearn vy.
Department of Labor, 58 M.S.P.R. 307, 316 (1993). I find that the
appellant yelled at Duddy to the extent that she had difficulty
speaking with him. I further find that he yelled so loudly that Ruiz,
who could hear him even behind her closed door, became so
concerned that she called Duddy to ask if she was all right. I find the
appellant thereby engaged in inappropriate and unprofessional
behavior. Accordingly, I find the agency proved this charge.

The appellant's claim of whistleblower retaliation.

There are three steps in a complete analysis of an employee's
whistleblower defense to an adverse personnel action. First, is the
employee's disclosure a protected

adx G, p.7

8
whistleblowing" activity under 5 U.S.C. § 2302(b)(8)? Second, was
the disclosure a contributing factor in the personnel action? Jd. §
1221(e)(1). Third, can the agency prove by clear and convincing
evidence that it would have taken the same personnel action in the
absence of the disclosure? Jd. § 1221(e)(2). No particular sequence
of analysis is mandated. See Clark v. Department of the Army, 997
F.2d 1466, 1470 (Fed. Cir. 1993), cert. denied, 114 S.Ct. 920 (1994).

The appellant proved he engaged in whistleblowing.

The appellant testified that he engaged in protected
whistleblowing as detailed in his appeal. See HTII at 353-36. In his
appeal, the appellant alleged he raised issues of tardiness, abusive
use of breaks and lunch time, abusive use of the official telephone
for personal purposes, and use of material and office equipment for
other than official government purposes. Also, he reported use of a
Government credit card for personal use and use of a Government
identification card for non-government purposes. Further, he reported
lack of compliance with many professional audit requirements. Rios
was the main subject of the appellant's alleged protected disclosures.
See AF, Tab 19 at 10. He reported these matters first to Rios and
then to the assistant supervisor in New York, Thomas Whiting. He
reported these matters over a period of four years after his arrival in
Puerto Rico in March 1990. See AF, Tab | at p. 11; HTII at 344. He
testified that his protected disclosures were embodied in a written
report he made in June 1994. Jd. at 361. On cross-examination, he
testified that the report made in June 1994 was actually a grievance
which he filed. Jd. at 401.

The appellant had to demonstrate by preponderant evidence that
he disclosed information he reasonably believed evidenced a
violation of law, rule, or regulation. The test for whether a putative
whistleblower has a reasonable belief in the disclosure is an
objective one. See Haley v. Department of the Treasury, 977 F.2d
553, 557 (Fed. Cir. 1992), cert. denied, 508 U.S. 950 (1993). The
appellant need not prove an actual violation of law, rule, or
regulation. Rather, he must show the matter reported was one that a
reasonable person in his position would believe evidenced a violation
of law, rule, or regulation. See Carolyn v. Department of the Interior,
63 M.S.P.R. 684, 690, review

adx G, p. 8

9
dismissed, 43 F.3d 1485 (Fed. Cir. 1994) (Table), overruled in part

on other grounds, Thomas vy. Department of the Treasury, 77
M.S.P.R. 224, 236 n. 9 (1998).

I find the appellant did not set forth his allegations of lack of
compliance with auditing standards with sufficient specificity. See
Padilla v. Department of the Air Force, 55 MS.P.R. 540, 543-44
(1992). To the extent the appellant relies on disclosures contained in
grievances or EEO complaints which he filed, I find these are not
protected under the Whistleblower Protection Act (WPA).
Disclosures made only in grievances and EEO complaints are not
protected under the WPA. See Serrao v. Merit Systems Protection
Board, 95 F.3d 1569, 1574-75 (Fed. Cir. 1996); Thomas, 77
M.S.P.R. at 230; Martin v. Department of the Air Force, 73 M.S.P.R.
574, 578-79 (1997). I find that many of the appellant's alleged
"disclosures" represent no more than professional disagreement,
which-do not rise to the level of whistleblowing disclosures. See
Carolyn, 63 M.S.P.R. at 691-92. |] find, nonetheless, that the
appellant's disclosures concerning abuse of official time, misuse of
government equipment, misuse of a credit card, and misuse of an
identification card are protected disclosures. Accordingly, I find the
appellant proved he engaged in whistleblowing.

The appellant did not prove his whistleblowing was a contributing

factor in his removal. !

The appellant has the burden of proving that his whistleblowing
was a contributing factor in his removal. The appellant may meet this
burden through circumstantial evidence, such as evidence that the
Official taking the personnel action knew of the disclosure, and the
personnel action occurred within a period of time such that a
reasonable person could conclude that the disclosure was a
contributing factor in the personnel action. See Horton v. Department
of the Navy, 66 F.3d 279, 283-84 (Fed. Cir. 1995), cert. denied, 116
S.Ct. 1271 (1996). Thus, an appellant satisfy the contributing factor
standard by satisfying this knowledge/timing test. Jd. I find the
record does not contain preponderant evidence to show that Piacesi
and Monaghan knew of the appellant's disclosures. Furthermore, the
disclosures were made from March 1990 to June 1994, many years
before Piacesi proposed the appellant's removal. Thus, I find the
appellant failed to prove his disclosures were a contributing factor in|
under the knowledge/timing test. The knowledge/timing test is not

adx G, p.9

: 10
the only way for an appellant to satisfy the contributing factor
standard. It is but one of may ways. Other evidence, such as that
pertaining to the strength or weakness of the agency's reasons for
taking the personnel action, whether the whistleblowing was
personally directed at the proposing or deciding officials, and
whether these individuals had a desire or motive to retaliate against
the appellant must be considered. See Powers v. Department of the
Navy, 69 M.S.P.R. 150, 156 (1995).

Here, the evidence shows that the agency had a strong need to
take its action, namely, the appellant's acts of serious misconduct. It
also shows that the appellant's whistleblowing was not personally
directed at either Piacesi or Monaghan, the proposing and deciding
officials. Nor was there any evidence introduced to show that either
individual had a desire or motive to retaliate against the appellant.
On the contrary, I find it shows that Piacesi made a concerted effort
to get the appellant to work in cooperative, constructive ways which
would have contributed to a successful operation of the Puerto Rico
office and the accomplishment of its mission, even offering to hire
a consultant to help the appellant and Ruiz work as an audit team.
See HTI at 50. Accordingly, I find the appellant failed to meet his
burden of proving that his disclosures were a contributing factor in
the agency's decision to remove him.

The agency proved by clear and convincing evidence that it would
have removed the appellant absent his disclosures.

Even if an appellant shows that a protected disclosure was a
contributing factor in the action against him, the Board will not order
corrective action if the agency shows by clear and convincing
evidence that it would have taken the same action absent the
disclosures. See McDaid v. Department of Housing & Urban
Development, 46 M.S.P.R. 416, 421 (1990). To determine whether
an agency has met its burden to prove by clear and convincing
evidence that it would have taken the same action absent the
appellant's protected activity, the Board considers the strength of the
evidence in support of the personnel action, the existence and
strength of any motive to retaliate on the part of the agency officials
who were involved in the decision, and any evidence that the agency
takes similar actions against employees who are not whistleblowers
but who are

adx G, p. 10

1]
otherwise similarly situated. Caddell v. Department of Justice, 66
M.S.P.R. 347, 351 (1995), affd, 96 F.3d 1367 (Fed. Cir. 1996).

Here, the record shows that the agency had a non-retaliatory
reason for disciplining the appellant, his proven misconduct. I find
the agency introduced convincing evidence in support of its charges.
The appellant's disclosures were not directed at either Piacesi or
Monaghan. No evidence was introduced concerning similar actions
taken against employees who were not whistleblowers, but I find that
removal was well within the tolerable limits of reasonableness under
the circumstances of this case. Accordingly, I find thatthe agency
proved by clear and convincing evidence that it would have removed
the appellant even absent the appellant's protected disclosures. See
Scott v. Department of Justice, 69 M.S.P.R. 21 1, 241 (1995), aff'd,
99 F.3d 1160 (Fed. Cir. 1996) (Table).

The appellant did not prove his claim of national origin
discrimination.

I issued an order in which I set forth the applicable legal
standards concerning the appellant's defense of discrimination and
what would be necessary for the appellant to meet his burden of
proof. See AF, Tab 4. The appellant did not introduce any evidence
to support his defense. He is a member of a protected group (Puerto
Rican), but he introduced no evidence to show, with respect to his
removal, that he was treated more disparately compared to an
individual who was not a member of his protected group. He did not
identify a specific employment practice which he challenged as
responsible for statistical disparities and show that the application of
the particular practice created the disparate impact. Nor did he
introduce direct evidence of discrimination.

Thus, I find he failed to establish a prima facie case of
discrimination. Even if the appellant had established a prima facie
case of discrimination, he did not overcome the agency's articulated,
nondiscriminatory reasons for its action, his proven misconduct. The
appellant did not show that the agency's stated reasons for removing
him were merely a pretext for discrimination. Accordingly, I find the
appellant did not prove his claim of discrimination.

12

The agency established a nexus between appellant's misconduct and
the efficiency of the service.

The agency must demonstrate that the appellant's removal was
"for such cause as will promote the efficiency of the service,” i.e.,
that there is a "nexus" between the sustained charges and the
efficiency of the service. See 5 U.S.C. § 7513(a). I find that the
agency established the requisite nexus. See Webster, 911 F.2d at
686; Redfearn, 58 M.S.P.R. at 316.

The penalty of removal was reasonable under the circumstances of
this case.

The Board will review an agency-imposed penalty only to
determine if the agency conscientiously considered all the relevant
factors and exercised management discretion within tolerable limits
of reasonableness. See Canevari v. Department of the Treasury, 50
M.S.P.R. 311, 317 (1991); Douglas, 5 M.S.P.R. at 306. Only if the
Board finds that the agency failed to weigh the relevant factors, or
that the agency's judgment clearly exceeded the limits of
reasonableness, is it appropriate for the Board then to specify how
the agency decision should be corrected to bring the penalty within
the parameters of reasonableness. Jd. I find that the agency's deciding
official carefully weighed and balanced all relevant factors in
reaching his decision to remove the appellant. I further find that,
under the circumstances of this case, the agency's decision to remove
the appellant did not exceed the tolerable limits of reasonableness.
See Douglas, 5 M.S.P.R. at 306.

In reaching its decision to remove the appellant, the agency
relied on two prior disciplinary actions: a reprimand dated February
10, 1995, for insubordination and a 5-day suspension effective
October 28, 1996, for disrespectful conduct. The suspension was
based on an outburst by the appellant on April 19, 1996, in a meeting -
with Bernard Tadley, Acting RIGA, and Ruiz in which he leapt from
his chair, threw a note-pad and pen against a wall, yelled "damn it"
in Spanish, and rushed back to his work area. The record shows that
the suspension was in writing, is a matter of record, and the appellant
grieved it. I do not find that the action was clearly erroneous. I find
the agency could consider the suspension in deciding to remove the
appellant. See Bolling v. Department of the Air Force, 9 M.S.P.R.
335, 340 (1981) (where appellant was informed of prior

adx G, p. 12

13
action in writing, the action is a matter of record, and the appellant
was given the opportunity to dispute the charges to a higher lever,
then only limited review of the record of the prior action is warranted
and it will be discounted only if found to be clearly erroneous.)

The appellant contends that the Suspension was in reprisal for
whistlebloing. | disagree. The Suspension was proposed by Tadley
and issued by Geraldine Jasper, neither of whom had anything to do
with the appellant's alleged whistleblowing which was directed at
Rios. Nor did the appellant establish any connection between his
alleged whistleblowing and his outburst. I find that the suspension
does not evidence retaliatory animus by the agency.’ Cf Cosgrove
v. Department of the Navy, 59 M.S.P.R. 618, 625 (1993) (in an
individual right of action appeal, where an employee has met his
burden of proof showing retaliation for whistleblowing was a ;
contributing factor to the action at issue, it is not error for the
administrative judge to closely examine the appellant's past record
for further evidence of possible retaliatory animus by the agency).

In his decision notice, Monaghan cited a number of incidents of
misconduct which came before the misconduct on which the decision
to remove was based. The agency characterized these incidents, as
being in the nature of non-disciplinary counselings which put the
appellant on notice of what the agency considered to be unacceptable
conduct. I find the agency was entitled to consider these matters in
reaching its decision to remove the appellant. See Thomas vy.
Department of Defense, 66 M.S.P.R. 546, 553, aff'd, 64 F.3d 677
(Fed. Cir. 1995) (Table). At the outset of the hearing, the agency
stipulated that it erred in considering the reprimand since it was time-
barred. See HTI at 13-17. I find, without considering the reprimand,
that the penalty of removal was within the bounds of reasonableness
for the proven misconduct.

= DECISION

The agency's action is AFFIRMED.

? The 5-day suspension was the subject of an individual right of action
appeal which was dismissed for lack of jurisdiction. See Nater vy. Department of
Education, MSPB Docket No. NY-1221-98-0272-W-1 (Initial Decision, March 2,
1999).

adx G, p. 13

14

FOR THE BOARD (signed by:) Joseph A. Hallock
Administrative Judge

NOTICE TO APPELLANT

This initial decision will become final on April 22, 1999, unless
a petition, for review is filed by that date or the Board reopens the
case on its own motion. This is an important date because it is
usually the last day on which you can file a petition for review with
the Board. However, if this initial decision is received by you more
than 5 days after the date of issuance, you may file a petition for
review within 30 days after the date you actually receive the initial
decision. The date on which the initial decision becomes final also
controls when you can file a petition for review with the Court of
Appeals for the Federal Circuit. The paragraphs that follow teil you
how and when to file with the Board or the federal court. These
instructions are important because if you wish to file a petition, you
must file it within the proper time period.

BOARD REVIEW
You may request Board review of this initial decision by filing a
petition for review. Your petition, with supporting evidence and
argument, must be filed with:

The Clerk of the Board
Merit Systems Protection Board
1120 Vermont Avenue, NW., Room 806

Washington, DC 20419
If you file a petition for review, the Board will obtain the record in
your case from the administrative judge and you should not submit
anything to the Board that is already part of the record. Your petition
must be postmarked, faxed or hand-delivered no later than the date
this initial decision becomes final, or if this initial decision is
received by you more than 5 days after the date of issuance, 30 days
after the date you actually receive the initial decision. If you fail to
provide a statement with your petition that you have

adx G, p. 14

sae
either mailed, faxed, or hand-delivered a copy of your petition to the
agency, your petition will be rejected and returned to you.
EQUAL OPPORTUNITY COMMISSION REVIEW
If you disagree with the Board’s final decision on discrimination,
you may obtain further administrative review by filing a petition with
the EEOC no later than 30 calendar days after the date this decision
becomes final. The address of the EEOC is:
Office of federal operations
Equal Employment Opportunity Commission
P.O. Box 19848
Washington D.C. 20036

JUDICIAL REVIEW
If you do not want to file a petition with the EEOC, you may ask
for judicial review of both discrimination and nondiscrimination
issues by filing a civil action. If you are asserting a claim under the
Civil Rights Act or under the Rehabilitation Act, you must file your
appeal with the appropriate United States district court as provided
in 42 U.S.C. § 2000e-5. If you file a civil action with the court, you
must name the head of the agency as the defendant. See 42 U.S.C. §
2000e-16(c). To be timely, your civil action under the Civil Rights
Act, 42 U.S.C. 2000e-16(c) must be filed no later than 30 days from
the date this initial decision becomes final. If you are asserting a
claim under the Age Discrimination in Employment Act, your claim
must be filed with the appropriate United States district court as
provided in 29 U.S.C. § 633a(c). You may have up to 6 years to file
such a civil action. See 28 U.S.C. § 2401 (a).
If you choose not to contest the Boatd’s decision on
discrimination, you may ask for judicial review of the
nondiscrimination issues by filing a petition with:

The United States Court of Appeals
for the Federal Circuit

717 Madison Place, NW.

Washington, D.C. 20439
You may not file your petition with the court before this decision
becomes final. To be timely, your petition must be received by the
court no later than 60 calendar days after the date this initial decision
becomes final.

adx G, p. 15

16

_ NOTICE TO AGENCY/INTERVENOR
The agency or intervenor may file a petition for review of this
initial decision in accordance with Board’s regulations.

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not
citable as precedent. It is a public record. This disposition will
appear in tables published periodically.

United States Court of Appeals for the Federal Circuit
99-3083, -3143, -3213

RAFAEL NATER,
Petitioner,

v.
DEPARTMENT OF EDUCATION,
Respondent.

Decided: May 9, 2000

Before MICHEL, LOURIE and SCHALL, Circuit Judges.
PER CURIAM.

Rafael Nater (“Nater”) appeals three initial decisions of
the Merit System Protection Board ("Board"), rendered final either
by the Board's denial of his petition for review or by Nater failure
to petition for review. Nater also appeals the Board's refusal to
consider his untimely submission in connection with his petition
for review of the Board's first initial decision. We affirm.

BACKGROUND

I. Appeal No. 99-3083

Nater worked for the Department of Education ("the

agency") as an auditor in the Office of Inspector General in San
Juan, Puerto Rico. In 1990,_

Nater notified Thomas Whiting, his second-level supervisor, that
his immediate supervisor, Porfirio Rios, had allegedly misused a
government credit card. In 1994, Nater filed an internal grievance
alleging irregularities in his office's auditing methods.

In 1995, Nater submitted a reprisal claim to the Office of
Special Counsel ("OSC"), alleging that the agency had retaliated
against him for his 1990 and 1994 disclosures by awarding him
only a "fully successful" rating rather than a superior rating in
1994 and by failing to select him for a promotion in 1995. OSC
investigated Nater’s allegations, but closed its inquiry on February
21, 1996 without taking any action.

On May 13, 1996, Nater filed his first individual right of
action ("IRA") appeal with the Board, see Docket No. NY-1221-
96-03

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1371%3A1. Public record. Not legal advice.