UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

THASHA A. BOYD,

Appellant,

v. 

DEPARTMENT OF LABOR,

and

DEPARTMENT OF HOMELAND 

SECURITY,

Agencies.

DOCKET NUMBERS

AT-3443-13-7178-B-1

AT-1221-13-3375-B-1

DATE: March 10, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Thasha A. Boyd, Kennesaw, Georgia, pro se. 

Uche N. Egemonye, Esquire, Atlanta, Georgia, for the Department 

of Labor. 

Beverly R. Brooks, Esquire, Washington, D.C., for the Department of 

Homeland Security. 

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

 1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 
2

FINAL ORDER

¶1 The appellant has filed petitions for review of two initial decisions, which 

denied her requests for corrective action in these individual right of action (IRA) 

appeals. We CONSOLIDATE the appeals because we have determined that doing 

so will expedite processing of the cases and will not adversely affect the parties’ 

interests. 5 C.F.R. § 1201.36. Generally, we grant a petition only when: the 

initial decision contains erroneous findings of material fact; the initial decision is 

based on an erroneous interpretation of statute or regulation or the erroneous 

application of the law to the facts of the case; the administrative judge’s rulings 

during either the course of the appeal or the initial decision were not consistent 

with required procedures or involved an abuse of discretion, and the resulting 

error affected the outcome of the case; or new and material evidence or legal 

argument is available that, despite the petitioner’s due diligence, was not 

available when the record closed. See title 5 of the Code of Federal Regulations,

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in 

these appeals, we conclude that the petitioner has not established any basis under

section 1201.115 for granting the petitions for review. Therefore, we DENY the 

petitions for review and AFFIRM the initial decisions, AS MODIFIED, to 

VACATE the finding that the Department of Homeland Security (DHS) proved by 

clear and convincing evidence that it would have rescinded the appellant’s

tentative job offer in the absence of her whistleblowing. 

¶2 This case was docketed as three separate IRA appeals against the Office of 

Personnel Management (OPM), Department of Labor (DOL), and DHS, the three 

parties named by the appellant. Boyd v. Office of Personnel Management, MSPB 

Docket No. AT-0731-13-7162-I-1 (Boyd I), Initial Appeal File (7162 IAF); 

Boyd v. Department of Labor, MSPB Docket No. AT-3443-13-7178-I-1 (Boyd II), 

Initial Appeal File (7178 IAF); Boyd v. Department of Homeland Security, MSPB 

Docket No. AT‐1221‐13-3375-W-1 (Boyd III), Initial Appeal File (3375 IAF). In 
3

short, the appellant alleged that each of the agencies engaged in whistleblower 

reprisal in connection with protected disclosures she made at DOL, her former 

employer, and the rescission of a tentative job offer at DHS, her prospective 

employer. E.g., 7178 IAF, Tab 1 at 4‐10. 

¶3 The administrative judge dismissed Boyd I for lack of jurisdiction, and we 

affirmed. See Boyd v. Office of Personnel Management, MSPB Docket No. 

AT-0731-13-7162-I-1, Final Order (Nov. 21, 2014). 2

 The administrative judge 

also dismissed Boyd II and Boyd III for lack of jurisdiction, 7178 IAF, Tab 10, 

Initial Decision; 3375 IAF, Tab 11, Initial Decision, but we granted the 

appellant’s petitions for review and remanded those cases to be heard on the 

merits, Boyd v. Department of Labor, MSPB Docket No. AT-3443-13-7178-I-1, 

Remand Order (Nov. 21, 2014) (7178 Remand Order); Boyd v. Department of 

Homeland Security, MSPB Docket No. AT-1221-13-3375-W-1, Remand Order 

(Nov. 24, 2014). 

¶4 On remand, the administrative judge consolidated Boyd II and Boyd III for 

purposes of developing the record. Boyd v. Department of Labor, MSPB Docket 

No. AT-3443-13-7178-B-1, Remand File (7178 RF), Tab 3; Boyd v. Department 

of Homeland Security, MSPB Docket No. AT-1221-13-3375-B-1, Remand File 

(3375 RF), Tab 4. Thereafter, he issued separate decisions, each denying the 

appellant’s requests for corrective action. 3

 7178 RF, Tab 38, Remand Initial 

Decision (7178 RID); 3375 RF, Tab 18, Remand Initial Decision (3375 RID). 

¶5 The appellant has filed similar petitions for review of the Boyd II and 

Boyd III remand initial decisions. Boyd v. Department of Labor, MSPB Docket 

No. AT-3443-13-7178-B-1, Petition for Review (7178 PFR) File, Tab 1; Boyd v. 

Department of Homeland Security, MSPB Docket No. AT-1221-13-3375-B-1, 

 2 Boyd I is not at issue here. 

3 The administrative judge issued the decisions on the written record because the 

appellant withdrew her hearing request. 7178 RF, Tab 24 at 1. 
4

Petition for Review (3375 PFR) File, Tab 1. DOL and DHS each filed a response. 

7178 PFR File, Tab 3; 3375 PFR File, Tab 3. 

The appellant failed to meet her burden of proving whistleblower reprisal. 

¶6 To prevail on the merits of an IRA appeal, an appellant must establish by a 

preponderance of the evidence that she made a protected disclosure 

under 5 U.S.C. § 2302(b)(8) that was a contributing factor in an agency’s 

personnel action. Aquino v. Department of Homeland Security, 121 M.S.P.R. 35, 

¶ 10 (2014). If the appellant is able to offer such proof, the Board must order 

corrective action unless the agency can establish by clear and convincing 

evidence that it would have taken the same personnel action in the absence of the 

disclosure. Id. 

¶7 In one of several prior appeals involving the appellant, the Board confirmed 

that the disclosures she relied on in the instant appeals were protected. See, e.g., 

7178 RF, Tab 27 at 6; Boyd v. Department of Labor, Docket Nos. AT‐1221-12-

0456-W-1 & AT-1221-12-0665-W-1, Final Order at 7 (Sept. 17, 2013).4

 

However, the administrative judge found that the appellant failed to meet her 

burden of proving the other requisite elements of whistleblower reprisal in the 

instant appeals. 7178 RID at 12-17; 3375 RID at 10‐14. 

Boyd II

¶8 In the appeal against DOL, the administrative judge found that the appellant 

failed to prove that the agency took a “personnel action” against her in connection 

with DHS’s rescinded job offer. 7178 RID at 12-17. We agree. 

 4 The protected disclosures were the appellant’s letters to the Government 

Accountability Office in May 2010 and April 2011, while employed at DOL, requesting 

investigation into the operations of the Office of Foreign Labor Certification as it 

related to a lack of production standards, frequent breaks, pay inequality, questionable 

hiring practices, misuse of Government equipment, and poor training. See Boyd, MSPB 

Docket Nos. AT‐1221-12-0456-W-1 & AT-1221-12-0665-W-1, Final Order at 3 n.4

(Sept. 17, 2013). 
5

¶9 The appellant generally alleged that two of her former supervisors at DOL 

were in positions to be able to provide negative employment references 

concerning a tentative job offer for her at DHS. 7178 IAF, Tab 5 at 4-5. She 

surmised that these DOL supervisors provided such references to prevent her 

appointment elsewhere in retaliation for her whistleblowing. Id. at 5. As we 

remanded the matter for a hearing on the merits, we noted that the allegations 

could be construed as DOL blacklisting her from future employment, which could 

constitute a personnel action. 7178 Remand Order, ¶¶ 9-10; see 5 U.S.C. 

§ 2302(a)(2)(A) (defining “personnel action” for purposes of the Whistleblower 

Protection Act); Mattil v. Department of State, 118 M.S.P.R. 662, ¶ 23 (2012) 

(recognizing that although “blacklisting” is not an enumerated personnel action 

under 5 U.S.C. § 2302(a)(2)(A), construed broadly, it could constitute a failure to 

appoint, which would be properly before the Board in an IRA appeal if an 

appellant identifies particular employment opportunities that the agency denied as 

part of the alleged “blacklisting”). 

¶10 On remand, the administrative judge found that, although the appellant 

speculated about her former DOL supervisors providing negative references in 

reprisal for her whistleblowing, the evidence demonstrated that they did not 

provide references at all, based upon agency policy and ongoing litigation.5

 

7178 RID at 12-15. The appellant’s petition for review seems to further speculate 

that DOL may have provided a negative reference to DHS in reprisal for her 

whistleblowing. 7178 PFR File, Tab 1 at 14-15. She alleges that the 

 5 The record does not establish that the ongoing litigation, which appears to be a 

defamation lawsuit, was protected activity subject to the Board’s jurisdiction over IRA 

appeals. See 7178 RF, Tab 20, Subtab 4e at 82‐85; Mudd v. Department of Veterans 

Affairs, 120 M.S.P.R. 365, ¶ 7 (2013) (recognizing that the Board’s jurisdiction over 

IRA appeals includes claims alleging that an agency took a personnel action because of 

the employee’s exercise of any appeal, complaint, or grievance right granted by any 

law, rule, or regulation with regard to remedying a violation of 5 U.S.C. § 2302(b)(8)). 
6

administrative judge erred in crediting the statements of DOL employees because 

the agency is not trustworthy. Id. at 15-16. We find no merit to her arguments. 

¶11 The evidence demonstrates that the pertinent DOL component had a policy 

of providing employment dates but no other substantive information in response 

to reference checks for prior employees. See 7178 RF, Tab 21 at 11, 15‐16. 

Consistent with that policy, records from individuals investigating the appellant’s 

background for the DHS vacancy reflect DOL’s refusal to provide additional 

information. 7178 RF, Tab 17 at 19, Tab 21 at 13. Although the appellant 

disagrees with the findings of the administrative judge, who credited the 

aforementioned evidence, including statements of pertinent DOL officials 

concerning DOL policy and inquiries about her prior employment, her mere 

disagreement does not warrant disturbing the initial decision. See Crosby v. U.S. 

Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the 

administrative judge’s findings when she considered the evidence as a whole, 

drew appropriate inferences, and made reasoned conclusions); Broughton v. 

Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same). 

As discussed above, it was the appellant’s burden to prove her claim. See 

Aquino, 121 M.S.P.R. 35, ¶ 10. Because the appellant’s allegations were not 

supported by persuasive evidence, we agree with the administrative judge’s 

conclusion that she failed to meet that burden; she thus failed to establish that her 

protected disclosures were a contributing factor in a DOL personnel action. 

Boyd III

¶12 In the appeal against DHS, the administrative judge found that the appellant 

failed to prove that her protected disclosures at DOL were a contributing factor in 

DHS’s rescission of its tentative job offer. 6

 3375 RID at 10‐14. We agree. 

 6 The administrative judge also found that DHS proved by clear and convincing 

evidence that it would have rescinded the tentative job offer in the absence of the 

appellant’s whistleblowing. 3375 RID at 14-15. However, because the appellant failed 

to prove that her whistleblowing was a contributing factor in the rescission of the 
7

¶13 The most common way of proving that a disclosure was a contributing 

factor in a personnel action is the knowledge/timing test. Shannon v. Department 

of Veterans Affairs, 121 M.S.P.R. 221, ¶ 23 (2014). Under that test, an appellant 

can prove the contributing factor element through evidence that the official taking 

the personnel action knew of the whistleblowing disclosure and took the 

personnel action within a period of time such that a reasonable person could 

conclude that the disclosure was a contributing factor in the personnel action. Id. 

¶14 The agency’s tentative selection of the appellant for its Citizenship and 

Immigration Services (CIS) vacancy occurred in October 2012. 7178 RF, 

Tab 20, Subtab 4b. Over the following months, the agency’s Office of Security 

and Integrity (OSI) and the appellant engaged in back and forth communications, 

in an attempt to complete her background investigation. See, e.g., 7178 RF, 

Tab 20, Subtabs 4d-4q. Because that investigation was still pending as of 

March 2013, CIS contacted OSI, requesting an update on when it would be 

completed. 7178 RF, Tab 20, Subtab 4s at 3. OSI responded, indicating that it 

could not provide any estimate “due to the complexity of [the appellant’s] 

security case.” Id. at 2. Two weeks later, CIS rescinded the tentative job offer, 

citing the aforementioned delay and a need to fill the position immediately. 

7178 RF, Tab 20, Subtab 4t, Tab 30 at 50‐51. 

¶15 Although the appellant revealed her disclosures to OSI as part of her 

background investigation just months before CIS rescinded her job offer, the 

agency presented evidence that the information was not relayed to the selecting 

official or anyone else outside of OSI. Compare, e.g., 7178 RF, Tab 20,

Subtab 4e at 4 (the appellant’s responses to the background investigation, 

 

tentative job offer, the administrative judge erred in reaching that issue. See Clarke v. 

Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19 n.10 (2014) (recognizing that

the Board may not proceed to the clear and convincing evidence test unless it has first 

made a finding that the appellant established his prima facie case), aff’d, 

No. 2014-3013, 2015 WL 8538501 (Fed. Cir. Dec. 11, 2015). We therefore vacate the 

administrative judge’s clear and convincing finding. 
8

including information concerning lawsuits involving her allegations of 

whistleblower reprisal at DOL), with 7178 RF, Tab 30 at 50-51 (declaration of the 

CIS selecting official, P.O., denying any knowledge of the appellant’s 

whistleblowing and explaining that the rescission was necessary to fill the 

vacancy expeditiously), 54-55, 58-59, 61-62, 64-65 (declarations from R.M., 

K.A., C.F., and R.H., individuals with OSI, explaining that the processing of an 

applicant’s background investigation does not include revealing responses to a 

selecting official; denying any communications with the selecting official for the 

appellant’s vacancy; and denying any involvement in the decision to rescind the 

appellant’s tentative job offer). In the absence of contrary evidence, the 

administrative judge found that the selecting official had no knowledge of the 

appellant’s whistleblowing at DOL, and the appellant failed to demonstrate that 

her protected disclosures at DOL were a contributing factor in the rescission of 

the tentative job offer at DHS. 3375 RID at 10‐14. 

¶16 On review, the appellant alleges that the administrative judge erred because 

he failed to consider whether the selecting official, P.O., had constructive 

knowledge of her whistleblowing. E.g., 3375 PFR File, Tab 1 at 9-14. As an 

initial matter, we note that the appellant did not clearly argue that the selecting 

official had constructive knowledge of her whistleblowing below. See 7178 RF,

Tab 27 at 10, 24-25; see generally Banks v. Department of the 

Air Force, 4 M.S.P.R. 268, 271 (1980) (discussing that the Board generally 

will not consider an argument raised for the first time in a petition for review 

absent a showing that it is based on new and material evidence not previously 

available despite the party’s due diligence). Moreover, although the appellant 

asserts that the administrative judge should have considered the possibility, we 

are not persuaded that constructive knowledge applies in this case. 

¶17 An appellant may show that a protected disclosure was a contributing factor 

by proving that the official taking the action had constructive knowledge of the 

protected disclosure, even if the official lacked actual knowledge. Nasuti v. 
9

Department of State, 120 M.S.P.R. 588, ¶ 7 (2014). An appellant may establish 

constructive knowledge by demonstrating that an individual with actual 

knowledge of her disclosure influenced the official accused of taking the 

retaliatory action. Id. 

¶18 As detailed above, the record reflects that the parties with actual knowledge 

of the appellant’s whistleblowing merely declined to provide an estimate on when 

her background investigation would be completed. E.g., 7178 RF, Tab 20,

Subtab 4s at 2-3, Tab 30 at 50-51, 54-55, 58-59, 61-62, 64‐65. The appellant 

has not identified any persuasive argument or evidence that the individuals with 

knowledge of her disclosures influenced the selecting official’s decision to 

rescind the tentative job offer. Cf. Aquino, 121 M.S.P.R. 35, ¶¶ 21-24 (finding 

that an appellant proved contributing factor through constructive knowledge 

where his supervisor reported concerns about the quality of his work just days 

after learning that he made disclosures, and higher-level agency officials 

exclusively relied on those concerns in removing the appellant). While the 

appellant seems to suggest that the agency’s evidence primarily consists of 

self-serving sworn declarations, it was her burden to prove that her disclosures 

were a contributing factor in the agency’s personnel action. 7

 See 

Aquino, 121 M.S.P.R. 35, ¶ 10. Accordingly, we agree with the administrative 

judge’s conclusion that the appellant failed meet her burden; she therefore failed 

to prove that her protected disclosures at DOL were a contributing factor in the 

rescission of her tentative job offer at DHS. 

 7 To the extent that the appellant also has argued that the administrative judge erred in 

crediting “self-serving” statements of DHS officials to find that the agency proved by 

clear and convincing evidence that it would have rescinded the tentative job offer in the 

absence of her whistleblowing, see 3375 PFR File, Tab 1 at 10-13, we need not address 

the argument because we are vacating the administrative judge’s clear and 

convincing analysis. 
10

The appellant has failed to establish any other basis for disturbing the 

initial decisions. 

¶19 The appellant alleges that the administrative judge erred by denying her 

motions to subpoena nonparties S.B. and R.R. below. 8

 E.g., 3375 PFR File, Tab 1 

at 5‐9. We disagree. A subpoena request “must identify specifically the books, 

papers, or testimony desired.” 5 C.F.R. § 1201.81(b). The request also must “be 

supported by a showing that the evidence sought is directly material to the issues 

involved in the appeal.” 5 C.F.R. § 1201.81(c). The appellant’s subpoena 

requests failed to meet those standards. Rather than specifically identifying 

material information that she sought, the appellant generally and repeatedly 

requested that the administrative judge order S.B. and R.R. to “respond to any 

and all requests made by appellant for documents, evidence, scheduled 

depositions and/or scheduled testimony regarding and related to the instant 

appeal.” E.g., 7178 RF, Tab 5 at 4, Tab 10 at 4, Tab 22 at 8. Accordingly, we 

find that the administrative judge did not abuse his discretion and that he properly 

denied the motions to subpoena nonparties S.B. and R.R. 7178 RF, Tab 24 at 5-7; 

7178 RID at 2-3; see generally Ryan v. Department of the 

Air Force, 117 M.S.P.R. 362, ¶ 5 (2012) (finding that the Board will not reverse 

an administrative judge’s rulings on discovery matters, the exclusion of 

witnesses, and rulings concerning proceedings absent an abuse of discretion). 

¶20 The appellant also alleges that the administrative judge’s processing of the 

appeals included a number of factual errors. E.g., 3375 PFR File, Tab 1 at 14‐15. 

For example, she alleges that a portion of a prehearing conference summary 

discussing a motion to compel referred to DHS, when it should have referred to 

 8 The appellant identified S.B. as the Federal contractor responsible for conducting her 

background investigation concerning DHS’s tentative job offer. 7178 RF, Tab 10 at 4. 

She identified R.R. as the former DOL employee responsible for issuing the DOL 

policy concerning responses to job referrals and background investigations that 

permitted only the release of beginning and end dates of employees without referral to a 

separate DOL component. 7178 RF, Tab 5 at 4-5, 11‐12. 
11

DOL. Id. at 14. Another example is the appellant’s allegation that the 

background discussions in the initial decisions refer to DOL imposing a 10‐day 

suspension when, in fact, she resigned from her position before the agency had 

the opportunity to impose the suspension. E.g., 3375 PFR File, Tab 1 at 14.

However, the appellant has failed to demonstrate how these alleged errors were 

harmful to her substantive rights. See Panter v. Department of the 

Air Force, 22 M.S.P.R. 281, 282 (1984) (explaining that an adjudicatory error 

that is not prejudicial to a party’s substantive rights provides no basis for reversal 

of an initial decision). 

¶21 Finally, the appellant seems to assert that the administrative judge was 

biased against her. E.g., 3375 PFR File, Tab 1 at 8, 15. For example, she 

suggests that the administrative judge denied her motions in an effort to aid the 

agencies’ litigation of these cases and delayed the processing of her appeals 

without reason. Id. She also refers to the fact that we previously remanded the 

appeals, suggesting that those remands are proof that the administrative judge 

has not carefully considered her claims. Id. at 15. We find no merit to these 

allegations. See Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386 

(1980) (holding that, in making a claim of bias or prejudice against an 

administrative judge, a party must overcome the presumption of honesty and 

integrity that accompanies administrative adjudicators); see also Bieber v. 

Department of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (discussing 

that an administrative judge’s conduct during the course of a Board proceeding 

warrants a new adjudication only if the administrative judge’s comments or 

actions evidence “a deep-seated favoritism or antagonism that would make fair 

judgment impossible”) (quoting Liteky v. United States, 510 U.S. 540, 

555 (1994)). 
12

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decisions, as supplemented by this Final Order, constitute the 

Board’s final decisions in these matters. 5 C.F.R. § 1201.113. You have the 

right to request review of this final decision by the U.S. Court of Appeals for the 

Federal Circuit. 

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. 

Dec. 27, 2012). If you choose to file, be very careful to file on time. The court 

has held that normally it does not have the authority to waive this statutory 

deadline and that filings that do not comply with the deadline must be dismissed. 

See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). 

If you want to request review of the Board’s decision concerning your 

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8), 

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge 

the Board’s disposition of any other claims of prohibited personnel practices, you 

may request review of this final decision by the U.S. Court of Appeals for the 

Federal Circuit or any court of appeals of competent jurisdiction. The Court of 

Appeals must receive your petition for review within 60 days after the date of this 

order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose 

to file, be very careful to file on time. You may choose to request review of the 

Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other 

court of appeals of competent jurisdiction, but not both. Once you choose to seek 

review in one court of appeals, you may be precluded from seeking review in any 

other court. 

If you need further information about your right to appeal this decision to 

court, you should refer to the Federal law that gives you this right. It is found in 

title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27, 

2012). You may read this law as well as other sections of the U.S. Code, at our 
13

website, http://www.mspb.gov/appeals/uscode.htm. Additional information about 

the U.S. Court of Appeals for the Federal Circuit is available at the court’s 

website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide 

for Pro Se Petitioners and Appellants,” which is contained within the 

court’s Rules of Practice, and Forms 5, 6, and 11. Additional information about 

other courts of appeals can be found at their respective websites, which can be 

accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website 

at http://www.mspb.gov/probono for information regarding pro bono 

representation for Merit Systems Protection Board appellants before the Federal

Circuit. The Merit Systems Protection Board neither endorses the services 

provided by any attorney nor warrants that any attorney will accept representation 

in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board