UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

DAVID J. MCCAULEY, Appellant,

v

. DEPARTMENT OF VETERA NS AFFAIRS, Agency

. DOCKET NUMBER CH

- 1221

- 14

- 0721

- W

- 1

DATE: February 18, 2016



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

David J. McCauley
, Coral Springs, Florida, pro se

. Kimberly Negley
, Esquire, St. Louis, Missouri, for the agency

.

BEFORE
Susan Tsui Grundmann, Chairman Mark A. Robbins, Member

FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which denied his request for corrective action

. 2 After fully considering the filings in

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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 ha s been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).

2 A substantial por tion of the appellant’s petition for review is devoted to a discussion of his separate appeal alleging that he was not selected for a Medical Support Assistant position in violation of the Veterans Emplo yment Opportunities Act of 1998 (VEOA).2

this appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review . We dismiss the appeal in part for lack of jurisdiction and, regarding the parts of the appeal over which we have jurisdiction, we deny the

app ellant’s request for corrective action

.

BACKGROUN D ¶2 The agency hired the appellant as a GS

- 5 Clerk in the Beneficiary Travel Office (BTO) in the Jeffers on Barracks Division of the St. Louis Veterans Affairs Medical Center (VAMC) in St. Louis, Missouri . Init ial Appeal File (IAF), Tab 9.
The BTO reimburses veterans for travel costs incurred in coming to th e VAMC
for service. Id

. While the appellant was at the Jefferson Barracks, he wrote a
letter to th e head of the agency alleging tha t the agency had not replace d a BTO Clerk who had left the agency, and identifying ways that the BTO could operat e more eff iciently. IAF, Tab 4, Exhibit (Ex.) 1

. The appellant also provided

veterans coming to the BTO who were complaining about long wait times with
business

- size envelopes addressed to the head of the agency so that they could directly communicate their concer ns about the wait times. IAF, Tab 1. Shortly thereafter, the agency transferred the appellant to the BTO in the John Cochran
Division (Cochran) of the VAMC. Id

. ¶3 In December 2012, the appellant voluntarily transferred from the position at
Cochran to a Medical Support Assistant (MSA) position in Bay Pines, Florida
, to help his brother who was recovering from a serious motor cycle accident. By t he

The Board re cently issued a decision on the appellant’s petition for review of the initial decision in that case. In a nonprecedential order, the Board remanded the case to the regional office for issuance of a jurisdictional notice, and, if the administrative judge finds that the Board has jurisdiction, development of the record to determine whether, through the agency’s reconstructed selection process, the appellant obtained all of the relief he could have obtained had he prevailed on his VEOA claim before the Board

. McCauley v. Department of Veterans Affairs , MSPB Docket No. CH

- 3443

- 14

- 0099

- I

- 3 , Final Order (July 8, 2015).3

appellant ’s admission, he transferred without assurance from the VAMC that he
could later return. Id

. Some time in 2013, the appellant attempted to return to the VAMC, and was told that applying for vacant positions was the only way he could return. IAF, Tab 9. The appellant applied for two vacancies, an MSA position and a Gardener position, and he was not se lected for either one. ¶4 The appellant filed an individual right of action (IRA) appeal all eging that the agency transferred him to Cochran
, failed to noncompetitively transfer him back to the VAMC from Florida, and failed to select him for the MSA and
Gar dener positions in violation of the Whistleblower Protection Act (WPA) . He asserted that the agency’s actions constituted retaliation for the following actions: (1) sending his letter to the he ad of the agency; (2) providing veterans who were complaining about long wait times with envelopes addressed to the head of the agency so that they could directly communicate their concerns ; (3) reporting that his supervi sor closed the BTO 15 minutes early; and (4) notifying the head of the agency that he needed pol ice protectio n when he closed the BTO because a
veteran had become violent when he was refused travel reimbursement

. I A F,
Tab s 1 , 8

. ¶5 The appellan t did not request a hearing. IAF, Tab 1. Based on the written submissions of the parties, the administrative judge found the appellant showed
that he had exhausted administrative procedures before the Office of Special Counsel (OSC). IAF, Tab 28, Initial Decision (ID) at 4

- 5 . She also found t hat the appellant could not have reas onably believed that the failure of the agency to timely replace a BTO Clerk at the Jefferson B arracks was gross mismanagement. However, she found that
, because he made it known to high

- level manager s that he had compl ained to the head of the agency, he established that he was perceived
as a whistleblower , and
, as such
, his letter to the head of the agency constituted a protected disclosure under 5 U.S.C. § 2 302 (b)(8). ID at 7

- 9. Additionally, she found that the appellant’s providing envelopes to assist veterans with informing the head of the agency of their frustrations with long wait times was a protected4

activity under 5 U.S.C. § 2302 (b)(9)(B) of the Whistleblower Protection
Enhan c ement Act (WPEA) , a provision that defines a protected activity as lawfully assisting any individual in the exercise of any appeal right granted by any law , rule, or r egulation. ID at 7

- 9. ¶6 The administrative judge further found that transfers and nonselections are personnel action s , and that, under the knowledge/timing test, the appellant established that his disclosures were a contributing factor to his transfer. ID

at 9

- 11. However, she found that
, because the appellant failed to show that the agency officials who denied the appellant’s tra nsfer from Florida to St. Louis and
did not select him for the MSA and Gardener positions were aware of his disclosures, h e f ailed to show that his discl o s ures were a contributing factor in those personnel actions. ID at 11

- 13. Finally, the administrative judge found that the agency established by clear and convincing evidence that it would have reassigned the appellant absent the perception of him as a whistleblower because his reassignment was voluntary . ID at 14

- 17.

ANALYSIS ¶7 B efore addressing the merits of an IRA appeal, the Board first must determine whether all its jurisdictional requirements have been met. Schmittling v. Department of the Army
, 2 1 9 F.3d 1332 , 1337 (Fed. Cir. 2000). Moreover, the issue of Board jurisdiction is always before the Board and may be raised at any time. Ney v. Department of Commerce , 115 M.S.P.R. 204 , ¶ 7 (2010). 3 Thus, notwithstanding the administrat ive judge’s reaching the merits of the appeal, we find we must make a jurisdictional determination regarding the appellant’s IRA appeal. Further , the agency filed a motion to dismiss the appeal

3 Attached to the appellant’s petition for review are a number of documents, most of which are already in the record, and those that are not w ere available before the close of the record. We have not considered these documents except as they relate to the issue of Board jurisdiction

. See Meier v. Department of the Interior
, 3 M.S.P.R. 247 , 256 (1980); Avansino v. U.S. Postal Service
, 3 M.S.P.R. 211 , 214 (1980).5

for lack of jurisdiction. IAF, Tab 7. The administrative ju dge did not rule on the

mot ion, and made no jurisdictional findings. ¶8 Generally, t o establish jurisdiction over an IRA appeal regarding activity protected under 5 U.S.C. § 2302 (b)(8), an appellant must prove that he exhausted his administrative remedies before OSC and make nonfrivolous allegations that : (1) he engaged in whistleblowing activity by making a pr otected disclosure
under 5 U.S.C. § 2302 (b)(8) ; and (2) the disclosure was a cont ributing factor in
the agency’s decision to take or fail to take a personnel action as def ined by 5 U.S.C. § 2302 (a). Yunus v. Depa rtment of Veterans Affairs , 242 F.3d 1367
, 1371 (Fed. Cir. 2001); Rusin v. Department of the Treasury
, 92 M.S.P.R. 298 , ¶ 12 (2002)

. 4 The appellant exhausted his administrative remedies regarding only some of his disclosure s

. ¶9 U nder 5 U.S.C. § 1214 (a)(3), an employee is required to “seek corrective action from [OSC] before seeking corrective action from the Board” through an IRA appeal. To satisfy this requirement, an appellant must articulate to OSC the basis for his request for corrective action “with reasonable clarity and precision.” Ellison v. Merit Systems Protection Board
, 7 F.3d 1031 , 1037 (Fed. Cir. 1993); see Ward v. Merit Systems Protection Board
, 981 F.2d 521 , 526 (Fed. Cir. 1992). Although an appellant may add further detail to his claims before the Board, see Briley v. National Archives & Records Administration
, 236 F.3d 1373 , 1378 (Fed.
Cir. 2001), he first must make a reasonably clear and precise claim with OSC,

see, e.g ., Mintzmyer v. Department of the Interior
, 84 F.3d 419 , 422 (Fed.
Cir. 1996). ¶10 As no ted, t he appellant’s alleged protected disclosures are writing a letter to the head of the agency
, providing veterans who were complaining about long wait

4 T he administrative judge ’ s show cause order set forth the necessary jurisdictional elements of an IRA appeal under the WPA and the WPEA, including the elements required to establish that the appellant was perceived as a whistleblower. IAF, Tab 3

.6

times with envelopes addressed to the head of the agency so that they could directly communicate thei r concerns, reporting that his s upervisor closed the BTO
15 minutes early, and notifying the head of the agency that he needed police protectio n when he closed the BTO because a veteran had become vio lent when
he was refused travel reimbursement. ¶11 The app ellant submitted a copy of the complaint that he filed with OSC and a copy of OSC’s letter notifying him that he may seek corrective action from the
Board . IAF, Tab s 1, 4 at 11. 5 In his complaint, he states that, in the fall of 2012
, h e directed veterans to complain to the head of the agency regarding issues that impacted their travel pay reimbursement. IAF, Tab 4 at 15

- 16. He al so states that he had alerted the head o f the agency about his transfer and nonselections

. Id

. at 16. OSC’s letter to the appellant identifies his alleged protected activity as sending a letter to the head of the agency concerning reimbursement policies and lack of staffing of the BTO, and directing veterans to complain to the head of the agency about trav el pay reimbursemen t issues. IAF, Tab 1. ¶12 The appellant’s submission s to OSC mention neither reporting that his supervis or closed the BTO 15 min utes early, nor notifying the head of the agency that he needed police protecti on when he closed the BTO becau se a veteran had
become violent. Thus, we find that the appellant exhausted his administrative remedies before OSC only regarding writing a letter to the head of the agency and suggesting to veterans that they co mplain to the head of the agency about long
wait times in the BTO

.

5 The administrative judge mistakenly stated in the initial decision that the appellant did not submit a copy of his OSC complaint. ID at 5 n.3. T he administrative judge’s error is of no legal consequence, however, because it did not adversely affect the appellant’s substantive rights

. See Karapinka v. Department of Energy , 6 M.S.P.R. 124 , 127 (1981).7

The appellant failed to make a nonfrivolous allegation that writing his letter to the agency head was a protected activity

. ¶13 We first address whe ther the appellant made a nonfrivolous allegation that
his letter to the head of the agency is a di sclosure protected by
section 2302(b)(8). A protected disclosure is a disclosure of information that an appellant reasonably believes evidences a violation of any law, rule, or regulation, gross mismanagement, a gr oss waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. Schoenig v. Department of Justice , 120 M.S.P.R. 318 , ¶ 8 (2013) (citing 5 U.S.C. § 2302 (b)(8)). At the jurisdictional stage, the appellant only is burdened with making a nonfrivolous allegation that he reasonably believed that his disclosure
evidenced a violation of one of the circumstances described in 5 U.S.C. § 2302 (b)(8). Id

. The pro per test for determining whether an employee had a
reasonable belief that his disclosure was protected is whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude th at the actions evidenced a violation
of one of the other conditions set forth in 5 U.S.C. § 2302 (b) (8). Id

. ¶14 In his September 24, 2012 letter to the head of the agency
, the appellant

notes tha t generally the BTO is staffed with two clerks, that one of the clerks had recently resigned, and states that, as the only clerk in the office, he cannot get
time off to visit his brother in Florida who was seriously hurt in a motorcycle accident. IAF, Tab 7, Ex. 1. He also states that veterans are experiencing long
wait times in the BTO and have expressed their concerns about the lack of
staffi ng in that office. Id . He further identifies ways that he believes that the BTO could change to operate wit h one clerk. Id

. Neither the appellant’s letter to the head of the agency nor h is complaint filed with OSC identifies any category
of disclosure found in section 2302(b)(8). Id .; IAF, Tab 4. In his response to the administrative judge’s jurisdictional order, the appellant, for the first time, uses8

the phrase “gross mismanagement” by his manager at the VAMC to characterize
hi s disclosure. IAF, Tab 4 at 5. ¶15 The Board has held, however, that it will not require, as a basis fo r its jurisdiction, that an a ppellant in an IRA appeal correctly label, in a whistleblower reprisal complaint to OSC , a category of wrongdoing under 5 U.S.C. § 2302 (b)(8) that might be implicated by a particular set of factual allegations. Pulcini v. Social Security Administration
, 83 M.S.P.R. 685 , ¶ 8 (1999) , aff’d
, 250 F.3d 758 (Fed. Cir. 2 000)

. Thus , we must examine the appellant’ s allegations to determine the appropriate whistleblower category. See id

. For the reasons discussed below, we find that the applicable (b)(8) categories are “abuse of authority” and “gross mismanagement.” ¶16 T he Board has defined abu se of authority as “an arbitrary or capricious exercise of power by a Federal official or employee that adversely affects the rights of any person or that results in personal gain or advantage to himself or to preferred other persons.” Id ., ¶ 9. The Board has stated th at there is no
de minimis standard for abuse of authority. Id

. ¶17 Gross mismanagement means a management action or inaction that creates a substantial risk of significant adverse impact upon the agency’ s abi lity to accomplish its mission. Embree v. Depart ment of the Treasury
, 70 M.S.P.R. 79 , 85 (1996). It requires “more than de minimis wrongdoing or negligence,” and
“does not include management decisions which are merely deba table,” nor does it “mean action or inaction which constitutes simple negligence or wrongdoing .”
Id

. “There must be an element of blatancy.” Id

. Thus, the appellant has a higher burden of proo f because of the standard applied to allegations of gross
mi smanagement. See i d .; see also Smith v. Department of the Army
, 80 M.S.P.R.
311 , ¶ 8 (1998). ¶18 The letter that the appellant wrote to the head of the agency is dated September 24, 2012. IAF, Tab 7, Ex. 1. In the letter, the appellant’s disclosure is that, as of the date of the letter, the agency had not hired a replacement for an9

employee who resigned earlier from his position in the BTO and that this caused long lin es of veterans seeking t ravel reimbursement . Although the appellant
does not give the exact date that this employee left the BTO, he indicates that the employee gave his 30

- days’ notice sometime after June 22, 2012

. Id . Thus, the longest time interval t hat the BTO operated with one clerk by the date of the appellant’s letter would have been from July 23 to August 24, 2012, an interval of only 2 months. We find that fa ilure to fill a position for 2 months is not in and of itself an arbitrary and capricio us exercise of authority , and the appellant has alleged no additional facts that
, if proven
, would show that the failure was arbitrary and capricious. See Pulcini
, 83 M.S.P.R. 685 , ¶ 8. Consequently, we find that the appellant ’s disclosure fails to rise to a nonfrivolous allegation of an abuse of authority. Additionally, we find that a failure to fill a vacancy for
2 month s is merely a debatable management decision , or at most inaction that
constitutes simple negligence. See Embree
, 70 M.S.P.R. at 85 . Therefore
, we likewise find that the appellant ’ s disclosure fails to rise to the level of a

n onfrivolous allegation of gross mismanagement. The appellant failed to make a nonfrivolous allegation that he was perceived as

a whistleblower

. ¶19 Because the appellant’s letter was known to his managers, including the
Associate Di rector of the VAMC, we also have considered whether the appellant made a nonfrivolous allegation that he was perceived as a whistleblower. One who is perceived as a whistleblower is entitled to the protection of the WPA, even
if he has not made protected disclosures. Juffer v. U.S. Inf ormation Agency , 80 M.S.P.R. 81 , ¶ 12 (1998). ¶20 The Board has found that a variety of fact patterns can support a finding that an individual was perceived as a whistleblower. In Mausser v. Department of the Army
, 63 M.S.P.R. 41 , 44 (1994), the appellant compiled a list of “waste, fraud, and abuse,” “safety issues,” and violations of “government re gulations” that he observed at the agency, with the intention of disclosing the list to the10

Inspector General after he completed his probationary period. Although the appellant never actually disclosed the list and was therefore not a whistleblower
when t he agency terminated him, the Board found that the agency may have perceived him as a whistleblower to the extent that the agency knew ab out the list
and his intention to disclose it. Mausser , 63 M.S.P.R. at 44

. In Thompson v. Farm Credit Administration
, 51 M.S.P.R. 569 , 581 (1991), the appellant
dis agreed with the agency Chairman’s public position on the agency’ s financial condition, and he expressed his disagreement to va rious agency officials, including the Chairman himself. Although the appellant did not actually disclose his disagreement or the bases thereof to anyone outside the agency, and although
he did not intend for the expression of his disagreement to constitut e a whistleblowing disclosure, the Chairman still perceived the appellant as a whistleblower because he believed the appellant to be “a dangerous proponent of a view that could prove embarrassing

— possibly evidencing mismanagement and
abuse of discretion.” Id

. In H olloway v. Department of the Interior
, 82 M.S.P.R.
435 , ¶ 15 (1999), a local newspaper reported that the appellant had disclosed “fraud, waste and abuse” at his emp loying agency but did not discuss the particulars of the disclosures. The appellant alleged that his supervisor was aware of the newspaper article and took personnel actions against him because of
it. Id. Therefore, the Board found in that case that eve n absent a showing that the appellant made any protected disclosures, he made a nonfrivolous allegation that his supervisor perceived him as a whistleblower because the supervisor was aware of the newspape r article labeling him as such. Id

. ¶21 Although the cases discussed above arose from widely different factual circumstances, they share a common element, i.e., that agency officials appeared
to believe that the appellants engaged or intended to engage in whistleblowing activity. Thus, the anal ysis of whether an appellant was actually a whistleblower
is different from the analysis of whether an appellant was perceived as a
whistleblower. In cases falling under the former category, the Board will focu s11

its analysis on the appellant’ s perceptions and the disclosures themselves, i.e.,
whether he reasonably believed that his disclosures evidenced the type of wrongdoing listed under 5 U.S.C. § 2302 (b)(8). See, e.g. , Parikh v. Department

o

f Veterans Affairs , 116 M.S.P.R. 197 , ¶ ¶ 15

- 18, 22

- 23 (2011); Rzucidlo v. Department of the Army
, 101 M.S.P.R. 616 , ¶ ¶ 17

- 18 (2006). In cases falling under the latter category, the Board will focus its analysis on the agency ’ s perceptions, i.e., whether the agency officials involved in the personnel actions at issue believed that the appellant made or i ntended to make disclosures that evidenced the type of wrongdoing listed under 5 U.S.C. § 2302 (b)(8). See, e.g. , Mausser , 63 M.S.P.R. at 44 ; Thompson
, 51 M.S.P.R. at 581

- 82. In those cases, the issue of whether the appellant actually made protected disclosures is immaterial; the issue of whether the agency perceived the appellant as a whistleblower will essentially stand i n for that portion of the Board’ s analysis in both the jurisdic tional and merits stages of the appeal

. ¶22 Therefore, to establish jurisdiction over an IRA appeal alleging that the agency retaliated against an appellant based on its perception that he wa s a whistleblower, he must show that he exhausted his remedies befo re OSC, and
make a nonfrivolous allegation that the agency perceived him as a whi stleblower, and that the agency’ s perception was a contributing factor in its decision to take or not take the personnel action at issue. King v. Department of Army , 116 M.S.P.R. 689 , ¶ 6 (2011)

. ¶23 Here, the appellant stated in his OSC complaint that he was “called on the carpet” by the VAMC Assistant Director after he wrote the letter to the head of the agency. IAF, Tab 4 at 15. Under the circumstances where this allegedly being “called on the carpet” occurred before any alleged retaliatory action, we find that the appellant ’s OSC complaint contained an allegation that he was perceived a s a whistleblower, and thus he exhausted his adm inistrative remedies
as to this allegation.12

¶24 However, as noted above, the appellant’s letter fails to characterize the situation as falling under any of the (b)(8) categor ies . Thus, the circumstances
here a re unlike those in Mausser , 63 M.S.P.R. at 44 , where the employee headed his list with a (b)(8) category “safety .” Furt her, the appellant failed to allege that the VAMC Assistant Director identified that the appellant’s letter related to any (b)(8) catego ry. In fact, contrary to the assertion in the appellant’s OSC complaint that he was “called on the carpet,” he stated in his first response to the

agency ’s motion to dismiss for lack of jurisdiction that the Assistant Director
“did indicate that I was not in trouble for the letter.” 6 IAF, Tab 4 at 6. Therefore,
the circumstances here are unlike those in Thompson
, 51 M.S.P.R. at 584 , where an agency official identified the employee ’s disagreement with agency action as possibly implicating a (b)(8) cat egory. Additionally, there is no outside reference to the appellant that characterized the situati ons mentioned in his letter to the head of the agency as any (b)(8) category. So, the circumstances here are unlike
the situation in Holloway
, 82 M.S.P.R. 433 , ¶ 5, where a newspaper reported that the employee disclosed a (b)(8) category. ¶25 Thus
, we find that the appellant failed to make a nonfrivolous allegation that any agency official s involved believed that the appellant made or intended to make disclosures that evidenced the type of wrongdoing listed under 5 U.S.C. § 2302 (b)(8). See, e.g. , Mausser , 63 M.S.P.R. at 44 ; Thompson
, 51 M.S.P.R.

at 581

– 82.

6 The administrative judge mistakenly refers to the appellant’s statements in his submissions as unsworn. See, e.g ., ID at 16. The appellant’s s ubmissions were e

- filed. With each document that is e

- filed, the question is asked “Do you declare, under penalty of perjury, that the facts stated in this pleading are true and correct.” IAF, Tab 3, Tab 8 at 3. Thus, all of the statements that the appe llant made asserting facts that he knew from his personal knowledge and that he e

- filed are sworn statements. We find that the administrative judge’s error does not affect the outcome of this case. In any event, we have considered the statements as sworn in making our decision.13

The appellant made a nonfrivolous allegation that the agency retaliated against him f or activity protected under the WPEA

. ¶26 S ection 101(b)(1)(A) of the WPEA amended 5 U.S.C. § 1221 (a) to provide that an employee, former employee, or applicant for employment may seek
corrective action from the Board regarding any personnel action taken, or proposed to be taken, against such employee, former employee, or applicant for employment, as a result of a prohibited perso nnel practice described in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). See Hooker v. Department of Veterans Affairs , 120 M.S.P.R. 629 , ¶ 9 (2014) (discussing the s cope of the WPEA
amendments to t itle 5). Thus, to establish jurisdiction over an IRA appeal regarding activity protected under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D), an appellant must prove that he exhausted his administrative remedies before
OSC and make nonfrivolous allegations that : (1) he engaged in activity protected by 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D) ; and (2) the protected activity

was a co ntributing factor in the agency’ s decision to take or fail to take a personnel action as defin ed by 5 U.S.C. § 2302 (a)

. ¶27 Here, as noted, the appellant exhausted his administrative remedies regarding his assertion that the agency retaliated against him for sugg esting to
veterans that the y complain to the head of the agency about long wait times in the
BTO. Further, as explained below, we find that the appellant made a nonfrivolous allegation that his distribution of envelopes addressed to the head of the agen cy was activity protected by section 2302(b)(9)(B) and that his protected activity was a contributing factor to the agency’s failure to noncompetitively
transfer him back to the VAMC from Florida, and failure to select him for the
MSA and Gardener positions

. ¶28 Section 2302(b)(9)(B) m akes it unlawful for an individual to take, fail to

ta ke, or threaten to take a personnel action because of the employee “testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in [ 5 U.S.C. § 2302 (b)(8)(A)](i) or (ii).” 5 U.S.C. § 2302 (b)(9)(B).14

Section 2302(b)(9)(B) also bars reprisal for assisting another individual in the
exercise of any appeal, complaint, or grievance right granted by law, rule, or regulation, and such a proceeding need not concern remedying a violation of whistleblower reprisal under section 2302(b)(8). See Carney v. Department of Veterans Affairs , 121 M.S.P.R. 446 , ¶ 6 n. 3 (2014)

. For example, p erforming
union

- related duties, such as filing grievances and representing other employees in the grievance process, are protected activitie s under section 2302(b)(9). See Alarid v. Department of the Army
, 122 M.S.P.R. 600 , ¶ 10 (2015). Also, under
the WPEA
, the Board has jurisdiction over claims of retaliatio n for lawfully assisting a coworker in a grievance proceeding granted by law, rule, or regulation
,

even outside of the context of union

- related duties. ¶29 Title 38 of the Code of Federal Regulations, section 17.33(g) provides for patient grievances. Specifically, it provides that : [e] ach patient has the right to present grievances with respect to perceived infringement of the rights described in this section or concerning any other matter on behalf of himself, hersel f or others, to staff members at the facility in which the patient is receiving care, other Department of Veterans Affairs officials, government officials, members of Congress or a ny other person without fear or reprisal. 38 C.F.R. § 17.33 (g). T he appellant gave the envelopes to the veterans experiencing long wait times in the BTO so that they could express their
frustration to the head o f the agency, consistent with the grievance rights provided in section 17.33(g) . Therefore, we find that he made a nonfrivolous allegation that he was assisting patients with a grievance right granted by law, rule, or regulation

. ¶30 The WPEA was signed into law on November 27, 2012, and it ha d an
effective date of December 27, 2012. King v. Department of the
Air Force , 119 M.S.P.R. 663 , ¶ 3 (2013) . The appellant’s allege d protected disclosure and alleged protected activity occurred prior to the effective date of the WPEA. Further, his transfer to Cochran occurred on December 6, 2012, prior to15

the effective date of the WPEA, and the Board does not have jurisdiction to
det ermine whether the transfer constituted retaliation for activity protected under the WPEA. However, the agency’s failure to noncompetitively transfer the appellant back to the VAMC from Florida , and failure to select him for the MSA
and Gardener positions occurred in 2013, after the effective date of t he WPEA
and the Board has jurisdiction to determine whether these actions constituted
retaliatio n for activity protected by the WPEA. ¶31 Each of the agency actions taken regarding the appellant after th e effec tive
date of the WPEA are personnel actions within the meaning of the WPEA.
See 5 U.S.C. § 2302 (a)(2)(A). Additionally, t he appellant made a nonfrivolous allegation that his protected activity was a contributing factor in the personnel
actions. One way to establish this criterion is the knowledge/timing test, under which an employee may nonfrivol ously allege that the protected activity was a contributing factor in a personnel action through circumstantial evidence, such as evidence that the official who took the personn el action knew of the protected activity , and that the personnel action occurred within a period of time such that a reasonable person coul d conclude that the disclosure was a contributing factor in the personnel action. See Mason v. Department of Homeland Security , 116 M.S.P.R. 135 , ¶ 26 (2011). In his respo nse to the administrative judge’s Order on Jurisdiction, the appellant stated that he believed that the official responsible for each of these personnel actions took the action in reprisal for the appellant’s protected activity. IAF, Tab 4 at 4. The appe llant’s protected activity occurred in September 2012, and the agency took the personnel actions at issue here within a year of the protected activity. The Board has held that personnel actions that were alleged to have begun within 1 year of the disclosures satisfy the “timing” component of the knowledge/timing test. See Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365 , ¶ 10 (2013)

.16

The appellant failed to prove by preponderant evidence that his protected activity was a contributing factor to the agency’s failure to noncompetitively transfer him back from Florida and to his nonselections for the MSA and Gardener positions

. ¶32 Although w e find that the appellant has made a nonfrivolous allegation of retaliation for protected activity establishing jurisdiction over his IRA appeal
under the WPEA
, he has failed to esta blish a prima facie case

. Only if the appellant makes out a prima facie case of r eprisal for protected activity must the agency be given an opportunity to prove, by clear and convincing evidence, the affirmative defense that it would have taken the same p ersonnel action in the
abs ence of the protected activity. See 5 U.S.C. § 1221 (e)(2); Schnell v. Department of the Army
, 114 M.S.P.R. 83 , ¶ 18 (2010). To establish a prima
facie case under the WP E A, the appellant must prove, by preponderant evidence,
that he engaged in protected activity and tha t the activity was a contributing factor in a personnel action against him. See 5 U.S.C. § 1221 (e)(1); Chambers v. Department of the Interior
, 116 M.S.P.R. 17 , ¶ 12 (2011)

. ¶33 The agency does not dispute that the appellant distributed envelopes addressed to the head of the agency to veterans, directing them to complain to the head of the agency about travel pay reimbursement issues. Therefore, we find that the appellant established by preponderant evidence that he engaged in protected activity. However, the appellant failed to prove by preponderant evidence that his protected activity was a contributing factor in the personnel actions taken against him. T he agency submitted affidavits from the of ficials that the appellant alleges retaliated against him by disallowing his transfer back to the
VAMC from Florida and who did not select him for the MSA and Gardener positions. IAF, Tab 9 at 5

- 13. Each official stated that he had no knowledge of the ap pellant’s protected activity when he took the personnel action involving the appellant. The appellant did not rebut these affidavits, and thus
, we find that he
failed to establish by preponderant evidence the knowledge prong of the knowledge/timing test r egarding the agency’s failure to transfer/reassign him17

back to the VAMC from Florida, and the agency’s failure to select him for the
MSA and Gardener positions

. ¶34 The official involved in the agency’ s decision not to transfer the appellant
from Florida ave rred that he first heard of the appellant when he called in 2013 requesting a reassignment/transfer to the VAMC from the Florida VAMC. Id

. at 6. The official stated further that
, at that time, he had not heard about any of the appellant’ s protected activ it y. Id . He stated that he informed the appellant
that the VAMC did not have an active reassignment /transfer program, and encouraged the appellant to apply for vacancies at the VAMC. Id . He stated that the decision not to transfer/reassign the appellant back to the VAMC had nothing to do with his protected activity. Id

. Rather, the official stated that it had been a longstanding practice of the VAMC not to transfer/ reassign employees back to the
VAMC a nd it had declined to do so in other cases as well. Id

. ¶35 The official who did not select the appellant for the MSA position stated in
an affidav it that he had no knowledge of the a ppellant’s protected activity when
he made the selection for the MSA posit ion. Id

. at 10. Similarly, the official who
did not select the appellant for the Gardener position stated in an affidavit that he received no information about the appellant other th an his application and

r ésumé, which did not include anything about the appellant’s protected activity.
Id

. at 13

. ¶36 Based on our review of the evidence, we conclude that, although the appellant exhausted his remed ies with OSC regarding his disclosure in a letter to the head of the agency that the BTO failed to fill a clerk vacancy , he failed to make a nonfrivolous allegation that his disclosure was protected under the WPA. We also conclude that the appellant failed to make a nonfrivolous allegation that he was perceived as a whistleblower , even though the fact that h e wrote the letter
to the head of the a gency was known to his manager

. Accordingly, we dismiss the appeal for lack of jurisdiction regarding these claims.18

¶37 We also conclude that the appellant exhausted his remedies with OSC regarding his activity of dist ributing envelopes to patients so that they could complain about long wait times in the BTO, and he made a nonfrivolous allegation that he had a reasonable belief that this activity is protected activity
under the WPEA. 7 However, for the reasons set forth above, we find that the appellant failed to make a prima facie case that the agency refused his request to noncompetitively transfer him back to the VAMC from Florida , and did not select
him for the MSA and Gardener positions, in retaliation for his activ ity protected
under 5 U.S.C. § 2302 (b)(9)(B). Accordingly, we deny the appellant’s request for
corrective action under the WPEA as to these personnel actions

.

NOTICE TO THE APPELL ANT REGARDING YOUR FURTHER REVIEW RIGHTS You have the right to request review of this final decision by the U.S.
C ourt 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 or der. 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 waiv e this statutory deadline and that filings that do not c omply with the deadline must be dismissed. See Pinat v. Office of Personnel Management
, 931 F.2d 1544 (Fed. Cir. 1991)

.

7 In a footnote in the initial decision, the a dministrative judge ruled on the appellant’s motion to compel the agency to produce copies of documents that he signed asking to be moved to Cochran. ID at 4 n.1; see IAF, Tab 14 . S he found, based on the agency’s responses, that the agency had no documents responsive to the appellant’s request. Because we do not need to reach the issue of whether the appellant’s move to Cochran was voluntary, we need not determine whether the admini strative judge’s discovery ruling was an abuse of discretion. See Vaughn v. Department of the Treasury
, 119 M.S.P.R. 605 , ¶ 15 (2013) (finding that a n administrative judge has broad discretion in ruling on discovery matters and, absent an abuse of discretion, the Board will no t find reversible error in such rulings )

.19

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 co urt 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. § 7 703 (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. Onc e you choose to seek review in one court of appeals, you may be precluded f rom 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 r ight. 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 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, w ww.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 b e 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. Co urt 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 Federal20

Circuit . The Merit Systems Protection Board neither endorses the services provided by any attorney nor warrants that any attorney will a ccept representation in a given case.

FOR THE BOARD:

Washington, D.C. ______________________________ William D. Spe ncer Clerk of the Board