UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

LEONARD ENGLISH, JR.,

Appellant,

v.

SMALL BUSINESS 

ADMINISTRATION,

Agency.

DOCKET NUMBER

DE-1221-15-0090-W-1

DATE: April 8, 2015

THIS ORDER IS NONPRECEDENTIAL1

Leonard English, Jr., Aurora, Colorado, pro se.

Sherrie Abramowitz, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

REMAND ORDER

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

dismissed his appeal for lack of jurisdiction. For the reasons discussed below, we 

GRANT the appellant’s petition for review and REMAND the case to the field

office for further adjudication in accordance with this Order. 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

¶2 The appellant filed an individual right of action (IRA) appeal alleging that 

the agency issued him a letter of reprimand and negative performance evaluation 

in retaliation for his protected disclosures. Initial Appeal File (IAF), Tab 1. The 

appellant alleged that he disclosed: that a coworker had revealed to the appellant 

that the coworker had violent tendencies; and that he observed the same 

coworker’s arrival and departure times, which showed that the coworker was not 

working a complete 8-hour shift each day. Id. 

¶3 The administrative judge issued a jurisdictional order informing the 

appellant of his burden to establish jurisdiction over his IRA appeal. IAF, Tab 3. 

Based on the appellant’s responses, the administrative judge found the appellant’s 

repeating the conversation that he had with his coworker about the coworker’s 

self-reported violent tendencies had not revealed a substantial and specific danger 

to public health and safety. IAF, Tab 18, Initial Decision (ID) at 4. The 

administrative judge also found that the appellant’s observations of his 

coworker’s arrival and departure times did not constitute an allegation of time 

and attendance fraud, i.e., a violation of law, because the disclosures were too 

vague and imprecise to meet the requirement to be specific and detailed for 

purposes of making a protected disclosure. ID at 4. He also found that the 

disclosures included no allegation of gross mismanagement, waste of funds, or 

that the coworker was taking any action pursuant to the authority of his position. 

ID at 4. 

¶4 In his petition for review, the appellant disagrees with the administrative 

judge, arguing that, given the instances of workplace violence in the news, his 

disclosure that a coworker revealed that he has violent tendencies discloses 

danger. He also asserts that federal employees should work their full shifts, and 

that revealing that an employee is not doing so discloses a violation of law. 

Petition for Review (PFR) File, Tab 1. The agency has responded in opposition 

to the petition. PFR File, Tab 2. The appellant has replied to the agency’s 

response. PFR File, Tab 3.
3

¶5 Generally, to 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 the Office of Special Counsel (OSC) and make 

nonfrivolous allegations that (1) he engaged in whistleblowing activity by making 

a protected disclosure under 5 U.S.C. § 2302(b)(8), and (2) the disclosure was a 

contributing factor in the agency’s decision to take or fail to take a personnel 

action as defined by 5 U.S.C. § 2302(a). Yunus v. Department 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).

¶6 Activity protected under § 2302(b)(8) occurs when an appellant makes a 

disclosure that he reasonably believes evidences any violation of law, rule, or 

regulation, gross mismanagement, a gross waste of funds, an abuse of authority, 

or a substantial and specific danger to public health and safety. Mudd v. 

Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 5, n.3 (2013); Mason v. 

Department of Homeland Security, 116 M.S.P.R. 135, ¶ 17 (2011); see 5 U.S.C. 

§ 2302(b)(8). The proper test for determining if an employee had a reasonable 

belief that his disclosures were protected is whether a disinterested observer with 

knowledge of the essential facts known to, and readily ascertainable by, the 

employee could reasonably conclude that the actions evidenced a violation of law, 

rule, or regulation, or one of the other conditions set forth in § 2302(b)(8). 

Mason, 116 M.S.P.R. 135, ¶ 17. 

¶7 Here, the administrative judge properly found that the appellant established 

that he exhausted administrative procedures before OSC. ID at 3. At issue is 

whether a disinterested observer with knowledge of the essential facts alleged by 

the appellant could reasonably conclude that he reasonably believed that he 

disclosed a substantial and specific danger to public health and safety or any 

violation of law, rule, or regulation. 

¶8 The inquiry into whether an appellant disclosed danger that is sufficiently 

substantial and specific to warrant finding that it is protected whistleblowing “is 
4

guided by several factors, among these: (1) the likelihood of harm resulting from 

the danger; (2) when the alleged harm may occur; and (3) the nature of the harm, 

i.e., the potential consequences.” Chambers v. Department of the 

Interior, 602 F.3d 1370, 1376 (Fed. Cir. 2010) (internal citations and quotation 

marks omitted). The likely occurrence of harm cannot be dependent on a series 

of unlikely events. See Parikh v. Department of Veterans Affairs, 116 M.S.P.R. 

197, ¶ 15 (2011). 

¶9 The appellant stated that his concerns about his coworker arose when the 

appellant, after he overheard the coworker shouting and using profanity, engaged 

the coworker in conversation and the coworker revealed that he had violent 

tendencies and an assault record. IAF, Tab 5 at 40-41. Even considering the 

truth of the appellant’s assertion that his coworker shouted, used profanity, and 

talked about his violent tendencies and assault record, the likelihood of such 

behavior escalating to danger through workplace harm is dependent on a series of 

wholly unknown and unpredictable events. Thus, we find that the potential harm

is tantamount to being dependent on a series of unlikely events. See 

Parikh, 116 M.S.P.R. 197, ¶ 15. We therefore find that the administrative judge 

properly found that the appellant failed to make a nonfrivolous allegation of a 

substantial and specific danger to public health and safety.

¶10 The appellant also stated that the coworker revealed that “he has an assault 

record and was cleared to come to our office by someone.” IAF, Tab 5 at 40. 

The Board has held that disclosure that an assault in violation of criminal law 

occurred was a disclosure of a violation of law, rule, or regulation. Lewis v. 

Department of Commerce, 101 M.S.P.R. 6, ¶ 11 (2005). The administrative judge 

addressed only whether the appellant’s report of the coworker’s statement could 

constitute a nonfrivolous allegation of a substantial and specific danger to public 

health and safety. The label or characterization an employee gives to his

disclosure does not determine whether it constitutes whistleblowing; rather, the 

content of the disclosure and the reasonableness of his belief that it evidences 
5

wrongdoing are the determinative factors. Williams v. National Labor Relations 

Board, 59 M.S.P.R. 640, 645 (1993). Reviewing the content of the appellant’s

alleged disclosure, we find that he has not alleged that the assault that the 

coworker revealed was in violation of criminal law. Further, the appellant did not 

allege that he was personally aware of the assault, observed the result of the 

assault, or that he was the victim of the assault revealed by the coworker. Thus, 

we find that the appellant’s disclosure of his coworker’s alleged revelation of his 

assault record did not constitute a nonfrivolous allegation of a reasonable belief 

of a violation of law. See Sobczak v. Environmental Protection 

Agency, 64 M.S.P.R. 118, 122 (1994) (an appellant’s disclosure does not satisfy 

the reasonable belief requirement if he is merely reporting unsupported 

speculation).

¶11 As to the appellant’s disclosure of his coworker’s alleged time and 

attendance violations, the administrative judge found some indication of a 

violation of law, rule, or regulation, but nonetheless found that the appellant’s 

alleged disclosure was too vague to qualify as a protected disclosure. ID at 4. 

However, any doubt or ambiguity as to whether the appellant has made a 

nonfrivolous allegation should be resolved in favor of affording the appellant a 

hearing. Huffman v. Office of Personnel Management, 92 M.S.P.R. 429, ¶ 13 

(2002). Also, the Board’s case law is clear that time and attendance abuse is a 

violation of law, rule, or regulation. DiGiorgio v. Department of the 

Navy, 84 M.S.P.R. 6, ¶ 14 (1999); Frederick v. Department of Veterans 

Affairs, 63 M.S.P.R. 563, 570 (1994). Further, the appellant’s disclosure of a 

violation of law is protected even if he was attempting to impose his personal 

views of right and wrong on the workplace. Berkley v. Department of the 

Army, 71 M.S.P.R. 341, 352 (1996). 

¶12 Additionally, even if some of the appellant’s disclosures of alleged time and 

attendance violations concerned trivial matters, there is no de minimis exception 

for the violation-of-law aspect of the protected disclosure standard. Id. Congress
6

emphasized that there is no de minimis exception for the violation-of0law aspect 

of the protected disclosure standard in the Whistleblower Protection Enhancement 

Act of 2012 (WPEA), Pub. L. No. 112-99, 126 Stat. 1465, which is applicable to 

this case. Title 5 U.S.C. § 2302(b)(8) of the Whistleblower Protection Act 

(WPA) provided that it is a prohibited personnel practice to take or fail to take, or 

threaten to take or fail to take, a personnel action against any employee or 

applicant for employment because of: 

(A) any disclosure of information by an employee or applicant which 

the employee or applicant reasonably believes evidences: 

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

5 U.S.C. § 2302(b)(8) (2011) (emphasis added). The WPEA amended that WPA 

provision to provide that it is a prohibited personnel practice to take or fail to 

take, or threaten to take or fail to take, a personnel action against any employee 

or applicant for employment because of: 

(A) any disclosure of information by an employee or applicant which 

the employee or applicant reasonably believes evidences: 

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

5 U.S.C. § 2302(b)(8) (2013) (emphasis added).

¶13 Contrary to the administrative judge’s finding, we find that the appellant 

made specific allegations of time and attendance abuse. In an email to an agency 

manager, J.V., he stated that, when his coworker “came to work for [the agency], 

he came to work late, took extended lunches, and left early.” IAF, Tab 5 at 40. 

Because the date that the coworker began with the agency is a matter of record, 

we find that the appellant was specific as to some of the dates of the coworker’s 

alleged time and attendance violations. Further, although the appellant does not 

identify the time of the coworker’s arrival, how long he took for lunch, and the 

time of his departure, the appellant’s allegations, based on his personal 

observations, that his coworker was being paid for hours that he did not work, 

constitutes an assertion of time and attendance abuse. Although the appellant did 

not clearly identify a specific law, rule, or regulation, he provided sufficiently 
7

detailed statements to implicate an identifiable violation of law, rule, or 

regulation. See Chavez v. Department of Veterans Affairs, 120 M.S.P .R. 285, 

¶ 18 (2013). Under these circumstances, we find that the appellant had a 

reasonable belief that his disclosure evidenced a violation of law, rule, or 

regulation, and his disclosure of alleged time and attendance fraud therefore was 

protected. 

¶14 Because the administrative judge found that the appellant failed to 

nonfrivolously allege that he made a protected disclosure, he did not reach the 

question of whether the appellant made a nonfrivolous allegation that his alleged 

disclosure was a contributing factor in the agency’s decision to take or fail to take 

a personnel action as defined by 5 U.S.C. § 2302(a). To satisfy the contributing 

factor criterion, an appellant need only raise a nonfrivolous allegation that the 

fact or content of the protected disclosure was one factor that tended to affect the 

personnel action in any way. Mason, 116 M.S.P.R. 135, ¶ 26. One way to 

establish this criterion is the knowledge-timing test, under which an employee 

may nonfrivolously allege that the disclosure was a contributing factor in a 

personnel action through circumstantial evidence, such as evidence that the 

official taking the personnel action knew of the disclosure and that the personnel 

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

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

¶15 As noted, the appellant alleges that in retaliation for his protected 

disclosure, the agency issued him a letter of reprimand and a reduced annual 

appraisal. A letter of reprimand and a “performance appraisal” are personnel 

actions within the meaning of the WPEA. See Horton v. Department of Veterans 

Affairs, 106 M.S.P.R. 234, ¶ 18 (2007); Jones v. Department of the 

Interior, 74 M.S.P.R. 666, 673-78 (1997). 

¶16 The appellant alleged that he disclosed his coworker’s time and attendance 

violations to agency officials J.V., P.G., and B.B. in April 2014. IAF, Tab 5 at 5. 

In August 2014, J.V. issued the appellant a letter of reprimand. Id. at 7. In 
8

October 2014, P.G. signed as the reviewing official on the appellant’s 2014 

appraisal. 2

 IAF, Tab 1. Therefore, we find that the appellant nonfrivolously 

alleged that the officials who issued the letter of warning and who reviewed his 

2014 appraisal, respectively, were aware of his disclosures. Further, we find that 

the disclosures occurred within a period of time such that a reasonable person 

could conclude that the disclosure was a contributing factor. See Carey v. 

Department of Veterans Affairs, 93 M.S.P.R. 676, ¶ 13 (2003). Thus, the 

appellant has met his burden to raise a nonfrivolous allegation that the fact or 

content of the protected disclosure was one factor that tended to affect the 

issuance of the letter of warning and his 2014 performance appraisal.

3

 See 

Mason, 116 M.S.P.R. 135, ¶ 26.

¶17 Consequently, we find that the appellant established jurisdiction over his 

IRA appeal with regard to his nonfrivolous allegation that his coworker engaged 

in time and attendance fraud. An appellant who meets his jurisdictional burden is 

entitled to a hearing on the merits in an IRA appeal. See Aquino v. Department of 

Homeland Security, 121 M.S.P.R. 35, ¶ 9 (2014); Mason, 116 M.S.P.R. 135, ¶ 7. 

 2 For unexplained reasons, P.G., the reviewing official, signed the appellant’s appraisal 

on October 23, 2013, the day before the rating official signed it. 

3 The appellant’s overall rating on the 2014 appraisal was Meets Expectations. IAF, 

Tab 1. This was a reduced appraisal, as the appellant’s overall rating on the 2013 

appraisal was Outstanding. IAF, Tab 5 at 57. However, the statutory provision that a 

performance appraisal is a personnel action contains no qualifying language that would 

require the contested performance appraisal to be either less than satisfactory or 

tangibly lower than the appraisal from the prior year in order to qualify as a personnel 

action allegedly taken in reprisal for a protected disclosure. See Rumsey v. Department 

of Justice, 120 M.S.P.R. 259, ¶ 16 (2013).

 
9

ORDER

For the reasons discussed above, we REMAND this case to the field

office for further adjudication, including a hearing, in accordance with this 

Remand Order.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board