UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RITA S. VAZ,

Appellant,

v.

DEPARTMENT OF HOUSING AND 

URBAN DEVELOPMENT,

Agency.

DOCKET NUMBER

DA-1221-15-0132-W-1

DATE: September 6, 2023

THIS ORDER IS NONPRECEDENTIAL1

Celine Fernandes, Arlington, Massachusetts, for the appellant.

Mary C. Merchant and Sakeena Adams, Fort Worth, Texas, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

REMAND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

dismissed her individual right of action (IRA) appeal for lack of jurisdiction. For 

the reasons discussed below, we GRANT the appellant’s petition for review, 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

REVERSE the initial decision, and REMAND the case to the Dallas Regional 

Office for further adjudication in accordance with this Remand Order. 

BACKGROUND

¶2 At all times relevant to this appeal, the appellant was employed in the 

agency’s Office of Public Housing, Houston Field Office. Vaz v. Department of 

Housing and Urban Development, MSPB Docket No. DA-1221-15-0132-W-1, 

Initial Appeal File (IAF), Tab 1 at 10, 19. On February 10, 2014, the appellant 

filed a whistleblower reprisal complaint with the Office of Special Counsel 

(OSC). IAF, Tab19. In her complaint, she alleged that she had disclosed abuses

of authority, gross mismanagement, and violations of various Federal laws, and in 

retaliation for her disclosures the agency had taken a number of personnel 

actions, including giving her a minimally satisfactory performance appraisal in 

Fiscal Year (FY) 2013 and then placing her on a performance improvement plan 

(PIP) on March 27, 2014. Id. at 6-15. She alleged that she had made the 

disclosures beginning in 2006 and “aggressively” since 2013, both “internally” to 

various management officials, and “externally” to a Board administrative judge, 2

an Equal Employment Opportunity Commission (EEOC) administrative judge, 

and agency attorneys. Id. at 6. The appellant made subsequent amendments to 

that complaint, including an alleged disclosure to the Inspector General (IG) in 

2014, with the final modification taking place on August 14, 2014. See id. at 4, 

 

2

The appellant named the administrative judge who adjudicated her previous appeal in 

Vaz v. Department of Housing and Urban Development, MSPB Docket No. DA-0752-

13-0450-I-1, Initial Decision (Nov. 19, 2013), which was dismissed as withdrawn. On 

August 4, 2014, the appellant filed a second Board appeal, in which she alleged, among 

other things, that the agency had engaged in whistleblower reprisal. The administrative 

judge dismissed that appeal for lack of jurisdiction, partly on the grounds that the 

appellant had not exhausted her remedies with OSC. Vaz v. Department of Housing and

Urban Development, MSPB Docket No. DA-3443-14-0579-I-1, Initial Decision 

(Sept. 17, 2014). Neither party filed a petition for review of that decision. The same 

administrative judge was initially assigned to the instant appeal. 
3

71-72. On October 28, 2014, OSC notified the appellant that it had closed its 

investigation and advised her of her Board appeal rights. IAF, Tab 20 at 50. 

¶3 On December 14, 2014, the appellant filed the instant Board appeal. IAF, 

Tab 1. The administrative judge to whom the case was initially assigned

informed the appellant of the requirements for establishing jurisdiction in an IRA 

appeal and ordered her to submit evidence and argument on the jurisdictional 

issue. IAF, Tab 3. In her response to that order, the appellant alleged that she 

made protected disclosures on the following occasions: (1) on June 16, 2008, to 

the Assistant Secretary; (2) on July 24, 2013, to an agency attorney; (3) on 

several dates from 2013 to 2014, to an EEOC administrative judge; and (4) in 

2014, to the IG, the Chief Human Capital Officer, and agency counsel. IAF, 

Tab 10 at 13-25.

¶4 The administrative judge advised the parties that the issue of jurisdiction 

still had not been resolved and ordered the appellant to produce a copy of her 

OSC complaint and additional correspondence with OSC.

3

 IAF, Tab 17 at 2. In 

response, the appellant provided a copy of her amended OSC complaint form and 

various documents she submitted to OSC in support of the complaint. IAF, 

Tab 19. Based on the appellant’s submissions, the administrative judge found 

 

3 We note that submission of an OSC complaint is not the only way to establish 

jurisdiction, as further discussed below. The administrative judge’s earlier 

jurisdictional order appropriately detailed the various ways that the appellant could 

establish exhaustion. IAF, Tab 3 at 7. However, after receipt of the appellant’s 

submissions, the administrative judge advised the parties that the issue of jurisdiction 

had not yet been resolved, and that the record indicated that the appellant had attempted 

to submit a copy of her OSC complaint in a pleading that had been rejected. IAF, 

Tab 17 at 2. Thus, the administrative judge’s order instructed the appellant to resubmit 

the OSC complaint. Id. The administrative judge also properly explained that it was 

not necessary for the appellant to provide a copy of the detailed decision letter that she 

received from OSC. See Bloom v. Department of the Army, 101 M.S.P.R. 79, ¶ 10 

(2006) (stating that, under 5 U.S.C. § 1214(a)(2)(B), OSC’s written statement 

containing its summary of relevant facts related to the appellant’s complaint is not 

admissible without the consent of the appellant).
4

that a hearing was warranted and proposed a date for the hearing. IAF,

Tabs 21-22.

¶5 Following an unsuccessful attempt at mediation, the appeal was reassigned 

to a second administrative judge. IAF, Tab 34. The new administrative judge 

ordered the appellant to identify and describe her disclosures with sufficient 

specificity such that he could evaluate whether she nonfrivolously alleged that 

she made a protected disclosure. IAF, Tab 39 at 1. The appellant responded. 

IAF, Tabs 40-41. Without holding the appellant’s requested hearing, the 

administrative judge issued an initial decision dismissing the appeal for lack of 

jurisdiction. IAF, Tab 43, Initial Decision (ID). In particular, he found that the 

appellant failed to establish that she had made protected disclosures of gross 

mismanagement or an abuse of authority, and that the Board did not have 

jurisdiction over her claims regarding equal employment opportunity (EEO) 

matters. ID at 5-6. 

¶6 On petition for review, the appellant argues that the administrative judge

ignored the ruling by the first administrative judge that a hearing was warranted. 

Petition for Review (PFR) File, Tab 1 at 3-4. The appellant further contends that 

the administrative judge failed to address disclosures (2) through (4), as well as 

her claim that the agency retaliated against her for perceived whistleblowing. Id. 

The agency has responded. PFR File, Tab 3. 

DISCUSSION OF ARGUMENTS ON REVIEW4

¶7 The appellant first challenges the administrative judge’s decision to dismiss 

her appeal for lack of jurisdiction without holding a hearing when the first 

administrative judge had previously found that a hearing was warranted. PFR 

File, Tab 1 at 3-4. The issue of jurisdiction is always before the Board, however,

 

4 We have reviewed the relevant legislation enacted during the pendency of this appeal 

and have concluded that it does not affect the outcome of the appeal.
5

and may be raised by either party or sua sponte by the Board at any time during a 

Board proceeding. Simnitt v. Department of Veterans Affairs, 113 M.S.P.R. 313, 

¶ 5 (2010). The second administrative judge provided notice to the parties of a 

specific jurisdictional issue that he believed remained unresolved, allowed them 

to make submissions addressing the issue, and then he made his jurisdictional 

determination based upon the record evidence. IAF, Tabs 39-43. Although, as 

explained below, we disagree with certain findings made by the administrative 

judge, as well as his conclusion that the Board lacks jurisdiction over the appeal, 

we find that it was within his authority to revisit the issue of jurisdiction after he 

was assigned the appeal, despite the first administrative judge’s apparent finding 

that the Board had jurisdiction over the appeal. 

¶8 To establish jurisdiction over an IRA appeal, and the consequent right to a

hearing, an appellant must show by preponderant evidence that she exhausted her 

administrative remedies before OSC and make nonfrivolous allegations 5that 

(1) she made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or 

engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), 

(C), or (D); and (2) the disclosure or protected activity was a contributing fact or 

in the agency’s decision to take or fail to take, or threaten to take or fail to take, a 

personnel action as defined under 5 U.S.C. § 2302(a). Salerno v. Department of 

the Interior, 123 M.S.P.R. 230, ¶ 5 (2016); see 5 U.S.C. §§ 1214(a)(3), 

1221(e)(1). For the following reasons, we find that the appellant has established 

jurisdiction over a portion of her retaliation claims, and is therefore entitled to a 

hearing on those particular claims.

 

5

The Board’s regulations define a nonfrivolous allegation as an assertion that, if 

proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s). The U.S. Court of 

Appeals for the Federal Circuit has found that, in the context of an IRA appeal, a 

nonfrivolous allegation is an allegation of “sufficient factual matter, accepted as true, to 

state a claim that is plausible on its face.” Hessami v. Merit Systems Protection Board, 

979 F.3d 1362, 1364, 1369 (Fed. Cir. 2020).
6

The appellant exhausted her remedies with OSC regarding disclosures (1) 

through (4), but not her claim of reprisal for perceived whistleblowing.

¶9 Under 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. The Board’s jurisdiction is limited to matters raised before OSC. Coufal 

v. Department of Justice, 98 M.S.P.R. 31, ¶¶ 14, 18 (2004). The substantive 

requirements of exhaustion are met when an appellant has provided OSC with 

sufficient basis to pursue an investigation. Chambers v. Department of Homeland 

Security, 2022 MSPB 8, ¶ 10. An appellant may demonstrate exhaustion of her 

OSC remedies through her initial OSC complaint or other written correspondence 

to and from OSC concerning her allegations. Benton-Flores v. Department of 

Defense, 121 M.S.P.R. 428, ¶ 6 (2014). In the alternative, exhaustion may be 

proved through other sufficiently reliable evidence, such as an affidavit or 

declaration attesting that the appellant raised with OSC the substance of the facts 

in the MSPB appeal. The appellant must prove exhaustion with OSC by 

preponderant evidence, not just present nonfrivolous allegations of exhaustion.

5 U.S.C. § 1204(a)(3); 5 C.F.R. § 1201.57(c)(1). 

¶10 Based on our review of the appellant’s OSC complaint and subsequent 

correspondence, see IAF, Tab 19, we find that the appellant exhausted her 

remedies with OSC with respect to disclosures (1) through (4).6 To the extent the 

administrative judge limited his attention to disclosure (1) only, without 

addressing disclosures (2) through (4), we agree with the appellant that this was 

error. See Spithaler v. Office of Personnel Management, 1 M.S.P.R. 587, 589 

(1980).

¶11 However, we find that the appellant has not shown that she alleged before 

OSC that the agency retaliated against her as a perceived whistleblower. We 

 

6

The appellant’s correspondence with OSC describes other alleged disclosures to 

agency management, but the appellant has not otherwise referred to those disclosures in 

her pleadings before the Board. 
7

therefore lack jurisdiction over that claim. See El v. Department of Commerce, 

123 M.S.P.R. 76, ¶ 12 (2015) (finding that, even if the Board considered the 

appellant’s claim that he was a perceived whistleblower, he failed to establish 

jurisdiction over his claim because he failed to exhaust his administrative 

remedy), aff’d, 663 F. App’x 921 (Fed. Cir. 2016). While the administrative 

judge erred in failing to address the appellant’s claim of retaliation for perceived 

whistleblowing, which she also raised in the proceedings below, see IAF, Tab 41 

at 6, his error did not prejudice the appellant’s substantive rights. See Panter v. 

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

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

no basis for reversal of an initial decision). 

The appellant has made a nonfrivolous allegation that a portion of disclosure (2) 

was protected under 5 U.S.C. § 2302(b)(8).

¶12 We next consider whether the appellant nonfrivolously alleged that her 

disclosures were protected under 5 U.S.C. § 2302(b)(8). In conducting this 

inquiry, the test is whether a disinterested observer with knowledge of the 

essential facts known to or readily ascertainable by the employee could 

reasonably conclude that the actions of the agency evidenced a violation of law, 

rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of 

authority, or substantial and specific danger to public health or safety. Lachance 

v. White, 174 F.3d 1378, 1379-81 (Fed. Cir. 1999). 

Disclosure 1

¶13 Regarding disclosure (1), which the appellant describes as her “internal” 

disclosure, the appellant alleges that in June 2008, she informed the Assistant 

Secretary verbally and by email that her then-supervisor was deliberately 

mistreating and neglecting the housing authorities in her portfolio and abusing his 

authority as a supervisor. IAF, Tab 10 at 13-17, Tab 19 at 14. The OSC 

correspondence includes several emails, which the appellant forwarded to the 

Assistant Secretary, purportedly showing that her supervisor at that time engaged 
8

in gross mismanagement by deliberately placing her on a PIP when she had 

timely completed her assignment, and abused his authority by failing to correct an 

assignment log and by not similarly penalizing other employees in the same or 

similar manner. IAF, Tab 19 at 14-20. In describing disclosure (1), the appellant 

further alleged that in 2006 and 2007, she verbally notified another agency 

manager that her supervisor failed to rescind the PIP even after admitting that the 

system used to log and close her cases was flawed. Id. at 15. 

¶14 The appellant’s disagreement with how agency officials managed

performance issues or provided her assignments does not constitute a 

nonfrivolous allegation of gross mismanagement. See Cassidy v. Department of 

Justice, 118 M.S.P.R. 74, ¶ 8 (2012) (explaining that gross mismanagement is a 

management action or inaction that creates a substantial risk of significant 

adverse impact on the agency’s ability to accomplish its mission). To the extent 

the appellant alleged gross mismanagement regarding the supervisor’s oversight 

of housing authorities, the information she described under disclosure (1) is too 

vague to qualify for protection under 5 U.S.C. § 2302(b)(8).7 

¶15 Similarly, the appellant has provided scant information regarding her 

supervisor’s alleged failure to correct an assignment log, nor has she provided 

sufficient detail regarding the performance of other employees she alleges should 

also have been penalized for deficiencies around the time she was placed on a 

PIP. As a result, we find that the appellant has failed to make a nonfrivolous 

allegation that she disclosed an abuse of authority. See Wheeler v. Department of 

Veterans Affairs, 88 M.S.P.R. 236, 241, ¶ 13 (2001) (holding that an abuse of 

authority occurs when there is an arbitrary or capricious exercise of power by a 

Federal official or employee that adversely affects the rights of any person or that 

 

7 As discussed below, we reach a different conclusion regarding similar allegations set 

forth in disclosure (2). 
9

results in personal gain or advantage to himself or to preferred other persons). 

Accordingly, we find that disclosure (1) is not protected. 

Disclosure 2

¶16 The appellant states that in a July 24, 2013 email to agency counsel, she 

disclosed abuse of supervisory authority, gross mismanagement, and gross waste 

of funds on the part of her then-supervisor. IAF, Tab 10 at 18-19, Tab 19

at 66-70. The email includes allegations that the supervisor discriminated against 

her on the basis of color and national origin, slandered her, and subjected her to 

“emotional gang rape.” IAF, Tab 19 at 67-69. The appellant also alleged that the 

supervisor was negligent in his oversight of the housing authorities in the 

appellant’s portfolio, in particular the Harris County Public Housing Authority 

(PHA). Id. at 68-69. The email includes excerpts from and links to a July 9, 

2013 news article describing the results of a recent IG audit that uncovered 

millions of dollars in fraudulent and wasteful expenditures by the Harris County 

PHA, and a July 16, 2013 letter of concern from U.S. Senator Charles Grassley

regarding the results of that audit. Id.; Jon Cassidy, IG says Texas housing 

authority is auditors’ nightmare, Washington Examiner (July 9, 2013),

https://www.washingtonexaminer.com/ig-says-texas-housing-authority-isauditors-nightmare (last accessed Sept. 6, 2023); Letter from U.S. Senator Chuck 

Grassley, Committee on the Judiciary (July 16, 2013), https://blog.chron.com/texa

spolitics/files/2013/07/Grassley-to-HUD-7-16-2013.pdf (last accessed Sept. 6, 

2023) (Grassley Letter).8 In that letter, Senator Grassley quoted with disapproval 

the supervisor’s previous assurances that the practices in the Houston field office

were “some of the best throughout the region,” and his subsequent statement that 

 

8 Although the appellant does not appear to have submitted the Washington Examiner 

article or Grassley Letter in any of her submissions to the Board, we have accessed the 

links she provided and confirmed that the excerpts she included in her submission are 

accurate. We take official notice of the article and the letter. 5 C.F.R. § 1201.64.
10

“we didn’t expect anything was actually going on here of concern.” Grassley 

Letter at 1.

¶17 The appellant’s disclosures concerning alleged discrimination, harassment, 

and the creation of a hostile work environment in violation of antidiscrimination 

statutes do not constitute protected whistleblowing under 5 U.S.C. § 2302(b)(8) 

or protected activity under section 2302(b)(9)(A)(i). See Edwards v. Department 

of Labor, 2022 MSPB 9, ¶¶ 10-17, 21-25 (explaining that disclosures pertaining 

to matters covered by 5 U.S.C. § 2302(b)(1)(A), even if made outside of the 

grievance or EEO process, do not constitute protected whistleblowing activity 

under section 2302(b)(8) or section 2302(b)(9)(A)(i)), aff’d, No. 2022-1967, 

2023 WL 4398002 (Fed. Cir. July 7, 2023). Furthermore, while we have 

considered that harassment by a supervisor may constitute an abuse of authority, 

see Ayers v. Department of the Army, 123 M.S.P.R. 11, ¶ 14 (2015), we find that 

the appellant’s vague allegations of harassment do not rise to this level.9 

 

9

To the extent the appellant is alleging that the agency retaliated against her for 

protected disclosures made in her two prior Board appeals, we find that the Board lacks 

jurisdiction to address those allegations in this appeal. The appellant’s 2013 appeal 

concerned a 7-day furlough issued by the agency, but the appellant did not allege in that 

appeal that the action was taken in retaliation for her whistleblowing. Vaz v. 

Department of Housing and Urban Development, MSPB Docket No. DA-0752-13-0450-

I-1, Initial Appeal File, Tab 28 (Summary of Telephonic Prehearing Conference). Thus, 

a claim of retaliation for filing that prior appeal falls under 5 U.S.C. 

§ 2302(b)(9)(A)(ii), since it was “other than with regard to remedying a violation” of 

section 2302(b)(8), and it is therefore outside the Board’s jurisdiction in this case. See 

Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 7 (2013) (stating that the 

Whistleblower Protection Enhancement Act of 2012 extends IRA jurisdiction to claims 

arising under 5 U.S.C. § 2302(b)(9)(A)(i), but not section 2302(b)(9)(A)(ii)). The 

appellant did allege whistleblowing retaliation in her second appeal, but that appeal was 

filed on August 4, 2014, which was after the two personnel actions at issue in this case

had already been taken and after the PIP had been extended. Vaz v. Department of 

Housing and Urban Development, MSPB Docket No. DA-3443-14-0579-I-1.

Accordingly, the personnel actions could not have been taken in retaliation for her 

attempt to remedy whistleblower retaliation in that appeal. See Orr v. Department of 

the Treasury, 83 M.S.P.R. 117, 124 (1999) (holding that when the personnel action 

occurred before the protected disclosures the disclosures could not have been a 
11

¶18 We find, however, that the appellant nonfrivolously alleged that she 

disclosed gross mismanagement by her supervisor regarding the office’s oversight

of the Harris County PHA. Accordingly, we find that this portion of 

disclosure (2) is protected under 5 U.S.C. § 2302(b)(8). 

Disclosure 3

¶19 Regarding disclosure (3), the appellant asserts that on several occasions 

between September 2013 and March 2014, she notified an EEOC administrative 

judge of retaliatory harassment and violations of the ADA and other 

antidiscrimination laws. IAF, Tab 10 at 20-24, Tab 11, Tab 19 at 6. As noted 

above, such disclosures are not protected under section 2302(b)(8). 

Disclosure 4

¶20 The appellant alleges that in a June 13, 2014 email to multiple agency 

officials, including the IG, the Chief Financial Officer, and agency counsel, she 

disclosed an abuse of authority, gross mismanagement, and violations of law and 

regulation including “multiple infractions of EEO laws, federal regulations, the 

negotiated Union contract, [and] HUD’s core values.” IAF, Tab 10 at 24-25, 

Tab 19 at 71. This email, titled “Multiple Violations of EEO laws, Federal laws,” 

includes a copy of the appellant’s rebuttal to the results of a management inquiry 

into her allegations of ongoing harassment by management. IAF, Tab 19 

at 72-140. The attachment describes the appellant’s concerns with the EEO 

process and includes documentation about her placement on a PIP, discussions 

about a reasonable accommodation, and alleged harassment by her former 

supervisor, including, among things, the appellant’s allegation that her supervisor 

“pinched” his nipples around her. Id. The appellant also cites a February 5, 2014 

email addressed to her second-line supervisor, who had proposed placing the 

 

contributing factor in the action), aff’d per curiam, 232 F.3d 912 (Fed. Cir. 2000) 

(Table).
12

appellant on a PIP in a January 29, 2014 email, and the appellant’s email was 

copied to the IG. IAF, Tab 10 at 24, Tab 19 at 71-72. In the February 5, 2014

email, the appellant contests the proposal to place her on a PIP based on the 

performance appraisal issued by her former supervisor, who had since left the 

agency. Id. Both emails are included in full in the appellant’s submissions to 

OSC.10 IAF, Tab 19 at 71-140.

¶21 As previously noted, the appellant’s disclosures of alleged EEO violations 

are not protected under 5 U.S.C. § 2302(b)(8). Although the appellant alleges 

that she also disclosed violations of other laws, rules, or regulations, she has not 

identified any specific provisions. Nor do her allegations clearly implicate an 

identifiable law, rule, or regulation separate from her EEO claims. See Baldwin 

v. Department of Veterans Affairs, 113 M.S.P.R. 469, ¶ 12 (2010) (stating that the

Whistleblower Protection Act does not require an employee to identify the 

particular statutory or regulatory provision that the agency allegedly violated 

when her statements and the circumstances of those statements clearly implicate 

an identifiable law, rule, or regulation). Furthermore, for the same reasons 

discussed above under disclosure (1), supra ¶ 15, we find that the appellant failed 

to make a nonfrivolous allegation that her February 5 and June 13, 2014 emails

disclosed gross mismanagement or an abuse of authority by her former 

supervisor. Accordingly, we find that disclosure (4) is not protected under 

5 U.S.C. § 2302(b)(8).

 

10 In her response to the Board’s first jurisdictional order, the appellant also describes 

two verbal communications with the IG in September 2014. IAF, Tab 10 at 25. 

However, the appellant did not refer to those communications in her OSC complaint or 

subsequent correspondence with OSC. 
13

The appellant nonfrivolously alleged that her disclosure of gross mismanagement 

regarding the Harris County PHA was a contributing factor in her supervisor’s 

issuance of an unfavorable performance appraisal. 

¶22 The appellant alleges that her July 24, 2013 disclosure regarding her 

supervisor’s alleged gross mismanagement of the Harris County PHA was a 

contributing factor in the issuance of a minimally satisfactory performance 

appraisal, which constitutes a personnel action under 5 U.S.C. 

§ 2302(a)(2)(A)(viii). One way an appellant may satisfy the contributing factor 

element at the jurisdictional stage is by making nonfrivolous allegations that the 

official taking the personnel action knew of the protected activity and that the 

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

could conclude that the activity was a contributing factor in the personnel action. 

See 5 U.S.C. § 1221(e)(1); Carney v. Department of Veterans Affairs, 

121 M.S.P.R. 446, ¶ 7 (2014). 

¶23 Here, the appellant alleged before OSC that the agency attorney to whom 

she made the disclosure immediately shared the email with unspecified agency 

officials, and that her supervisor retaliated for that disclosure by giving her a 

minimally satisfactory performance appraisal for FY 2013. IAF, Tab 19 at 67. 

While the appellant did not specify the names of the agency officials with whom 

the agency attorney shared the July 24, 2013 email, her allegations would imply

that the supervisor either received a copy of the email himself or else learned of it 

by other means. The appellant further asserts that the supervisor, who has since 

left the agency, issued the appraisal in November 2013, approximately 4 months 

after the disclosure. Id. These events are close enough in time to support a 

conclusion that the disclosure was a contributing factor in the personnel action. 

See Scoggins v. Department of the Army, 123 M.S.P.R. 592, ¶ 25 (2016) 

(observing that a personnel action that takes place within 2 years of a disclosure 

satisfies the knowledge component of the knowledge/timing test). Accordingly,

we find that the appellant is entitled to a hearing regarding her claim that the 
14

agency issued her an unfavorable performance evaluation in retaliation for her 

protected disclosure. 

Although disclosure (4) is not protected under section 2302(b)(8), the appellant’s 

communications with the IG constitute protected activity under

section 2302(b)(9)(C). 

¶24 While we have found that the appellant did not make a nonfrivolous 

allegation that disclosure (4) was protected under 5 U.S.C. § 2302(b)(8), the 

record reflects that the February emails at issue were sent to the IG. Under the 

broadly worded provision of 5 U.S.C. § 2302(b)(9)(C), disclosing information to 

an agency’s IG or to OSC is protected regardless of the content of the appellant’s 

complaints, as long as such disclosures are made “in accordance with applicable 

provisions of law.” Hence, we find that the appellant has made at least a 

nonfrivolous allegation that she engaged in protected activity for purposes of an 

IRA appeal. 

The appellant nonfrivolously alleged that her protected activity was a 

contributing factor in her placement on a PIP. 

¶25 We also find that the appellant nonfrivolously alleged that her 

communications with the IG were a contributing factor in a personnel action. 

Specifically, the appellant alleged before OSC that the agency retaliated against 

her for those communications by placing her on a PIP. IAF, Tab 19 at 9 (OSC 

complaint form). In this regard, the record includes a screenshot of a March 27, 

2014 email from the Acting Director of the Houston Field Office, notifying the 

appellant of her placement on a PIP. IAF, Tab 40 at 118-19. The screenshot 

shows that the PIP was attached to the email, but the PIP document does not 

appear to have been submitted to the Board by either party. Id. at 118. The 

appellant further asserts that on July 28, 2014, her second-line supervisor—who 

had first referenced the possibility of placing her on a PIP and who was also the 

recipient of the February 5, 2014 email discussed above—notified her that the PIP 

was being extended. See IAF, Tab 10 at 9. The agency submitted a copy of the 
15

July 28, 2014 memorandum extending the PIP for an additional 60 days. IAF, 

Tab 8 at 55-64. Based on all of the above, we find that the appellant has made a 

nonfrivolous allegation that the agency placed her on a PIP on March 27, 2014 . 

Moreover, it is well settled that a PIP is considered a personnel action for 

purposes of an IRA appeal. See, e.g., Hudson v. Department of Veterans Affairs, 

104 M.S.P.R. 283, ¶ 15 (2006). 

¶26 While it is unclear which official made the final decision to impose a PIP, 

the record indicates that the managers who received the February 5 and June 13 

emails, which were also addressed to the IG, were involved either in 

implementing the PIP or considering the appellant’s response after the possibility 

of placing the appellant on a PIP had been raised. IAF, Tab 19 at 71-73, Tab 40 

at 118-19. Moreover, the March 27 and July 28, 2014 notifications regarding the 

PIP and its extension were both issued within a few weeks or months after the 

emails in question. Under these circumstances, we find that the appellant has a 

made a nonfrivolous allegation that she engaged in protected activity under 

5 U.S.C. § 2302(b)(9)(C) that was a contributing factor in the agency’s decision 

to place her on a PIP.11 The appellant has therefore established jurisdiction and is 

entitled to a hearing on that claim.

 

11 The appellant is also alleging that the agency repeatedly threatened to place her on a 

PIP, including in a January 29, 2014 email and during a conference call held on the 

same date. IAF, Tab 1 at 4-5, 15-17, 50-52. To the extent she is claiming that 

communications regarding placing her on a PIP constituted threatened personnel 

actions, from our review of the record we find that she has failed to make a 

nonfrivolous allegation that any agency statements in this regard rose to the level of 

threats to take personnel actions, as defined in 5 U.S.C. § 2302(a)(2). Further, while 

the appellant questions whether the March 27, 2014 PIP was ever implemented, it 

appears that she may actually be arguing that the agency violated various procedures 

when it notified her of the PIP, and that this casts doubt on the validity of the action. 

IAF, Tab 10 at 8-10; IAF, Tab 40 at 117-19. On remand, the administrative judge 

should determine if there is a dispute regarding whether the PIP ever went into effect, 

and if so, he should accept evidence and argument on the issue and make findings as 

necessary.
16

The appellant has nonfrivolously alleged that her July 24, 2013 disclosure was a 

contributing factor in her placement on the March 27, 2014 PIP.

¶27 As discussed above, we have found that the appellant made a nonfrivolous 

allegation that the supervisor who gave her the minimally satisfactory

performance appraisal for FY 2013 either received a copy of the appellant’s 

July 24, 2013 email (disclosure 2) or otherwise learned of the email. The 

appellant admits that the supervisor who gave her that appraisal was no longer a 

Federal employee as of January 6, 2014; however, she asserts that her second-line 

supervisor and the Acting Director of the Houston Field Office used the appraisal 

to put her on the PIP. IAF, Tab 19 at 9. Record evidence supports her 

contention, as the Acting Director sent the March 27, 2014 email notifying the 

appellant that she was being placed on a PIP, he attached a copy of her final 

FY 13 performance rating along with the PIP, and he stated that the PIP was 

“required as a result of your marginally successful rating.” IAF, Tab 40 at 118.

¶28 Even assuming the individuals who placed the appellant on the PIP were 

unaware of the appellant’s July 24, 2013 disclosure, because we have found that 

the appellant made a nonfrivolous allegation that this disclosure was a 

contributing factor in the FY 13 performance appraisal and the appraisal led 

directly to the appellant being placed on a PIP approximately 8 months later, we 

find that the appellant has made a nonfrivolous allegation that the disclosure was 

a contributing factor in the PIP. See Marano v. Department of Justice, 2 F.3d 

1137, 1143 (Fed. Cir.1993) (finding that the contributing factor standard is met if 

an employee can demonstrate “that the fact of, or the content of, the protected 

disclosure was one of the factors that tended to affect in any way the personnel 

action”).

Conclusion

¶29 We find that the appellant has made nonfrivolous allegations that the part of 

the July 24, 2013 email regarding her supervisor’s alleged gross mismanagement 

concerning the Harris County PHA was a protected disclosure and was a 
17

contributing factor in the FY 13 performance appraisal and the March 27, 2014 

PIP, and she has further nonfrivolously alleged that the February 5 and June 13, 

2014 emails to the OIG were protected activity and were a contributing factor in 

the PIP.

ORDER

¶30 For the reasons discussed above, we remand this case to the Dallas Regional 

Office for further adjudication in accordance with this Remand Order.

 

 

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board