UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DAVID M. HENDY,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

CH-1221-19-0217-W-1

DATE: June 12, 2024

THIS ORDER IS NONPRECEDENTIAL1

David M. Hendy, Chicago, Illinois, pro se.

Stephanie Macht, Hines, Illinois, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

REMAND ORDER

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

dismissed his 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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
REVERSE the initial decision, and REMAND the case to the regional office for

further adjudication in accordance with this Remand Order.

BACKGROUND

¶2 On February 16, 2019, the appellant filed an IRA appeal with the Board

alleging that his nonselection in or around May 2018 for a Green Environmental

Management System (GEMS) Manager position at the Edward Hines, Jr. Veterans

Affairs Hospital (Hines VA) constituted reprisal for making protected disclosures

and engaging in protected activities under 5 U.S.C. § 2302(b)(8)-(9). Initial

Appeal File (IAF), Tab 1 at 3, 5, Tab 2 at 4-6, Tab 6 at 5-13. Specifically, the

appellant alleged that, during his prior employment as an Industrial Hygienist at

the Hines VA from December 2015 through June 2016, he made, and was

perceived to have made, disclosures about safety and health hazards and

mismanagement. IAF, Tab 6 at 24, 35-36, Tab 12 at 7, 28, Tab 13 at 16, 21-22.

He further claimed that, at a meeting with the Hines VA Director in or around

October 2017, he made, and was perceived to have made, disclosures about

asbestos, mismanagement, and violations of veterans’ preference laws. IAF,

Tab 6 at 24, Tab 12 at 17, Tab 13 at 17.

¶3 In addition, the appellant asserted that his May 2018 nonselection

constituted reprisal for his engagement, and perceived engagement, in the

following alleged activities: (1) he filed an equal employment opportunity (EEO)

complaint, a whistleblower reprisal complaint with the Office of Special Counsel

(OSC),2 and two Board appeals concerning his July 2013 termination from the

Jesse Brown Veterans Affairs Medical Center (Jesse Brown VA), IAF, Tab 6

at 29, 35, Tab 13 at 18; (2) he filed a June 2016 complaint with the agency’s

Office of Inspector General (OIG) concerning safety issues at the Hines VA, IAF,

Tab 2 at 5-6, Tab 6 at 24, 31, 34, 36, Tab 12 at 6, 9, Tab 13 at 21; (3) he filed

2

 The record contains documents pertaining to four separate OSC complaints the

appellant filed. The appellant’s 2013 OSC complaint alleging that his termination was

retaliatory was designated OSC File No. MA-13-4191. PFR File, Tab 7 at 31-33.

2
complaints with the Department of Labor (DOL) under the Veterans Employment

Opportunities Act of 1998 (VEOA) and the Uniformed Services Employment and

Reemployment Rights Act of 1994 (USERRA), a November 2017 OSC

complaint,3 and three IRA, VEOA, and USERRA appeals with the Board

concerning the agency’s failure to select him for positions in 2016-2017, IAF,

Tab 2 at 5-6, Tab 5 at 6, 9, 18-20, 25, Tab 6 at 24-25, 34-35, Tab 12 at 5-7, 9, 12,

20, Tab 13 at 19-21; and (4) he filed a May 2018 VEOA complaint and an August

2018 USERRA complaint with DOL and two August 2018 VEOA and USERRA

appeals with the Board concerning his nonselection for the GEMS Manager

position, IAF, Tab 5 at 6, 21-22, 25, Tab 6 at 25, 30-31, Tab 12 at 6, 9-10, 25, 27,

Tab 13 at 19.4

¶4 Without holding the appellant’s requested hearing, the administrative judge

issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,

Tab 19, Initial Decision (ID) at 1-2, 13. Regarding the appellant’s claim of

retaliation for making protected whistleblowing disclosures under 5 U.S.C.

§ 2302(b)(8), she found that he failed to prove that he exhausted his

administrative remedies before OSC. ID at 9-11. She further found that,

although he proved exhaustion regarding his claim of retaliation for engaging in

activities protected under 5 U.S.C. § 2302(b)(9) (specifically, filing a

November 2017 OSC complaint, an August 2018 USERRA complaint with DOL,

and an August 2018 Board appeal), he failed to nonfrivolously allege that he

engaged in a protected activity that was a contributing factor in his nonselection.

ID at 9-13.

3

 The November 2017 complaint, the second OSC complaint the appellant filed, was

OSC File No. MA-18-1040. IAF, Tab 12 at 36, Tab 14 at 5.

4

 The appellant’s pleadings are not a model of clarity and, as described in the initial

decision, he has a lengthy and complicated history with the agency. IAF, Tab 19, Initial

Decision at 2-7. In light of his pro se status, however, we have liberally construed his

pleadings. See Melnick v. Department of Housing & Urban Development, 42 M.S.P.R.

93, 97-98 (1989), aff’d, 899 F.2d 1228 (Fed. Cir. 1990) (Table).

3
¶5 The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 4.5 The agency has filed a response, PFR File, Tab 6, to which the

appellant has replied, PFR File, Tab 7.

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 To establish jurisdiction in a typical IRA appeal under the Whistleblower

Protection Enhancement Act of 2012 (WPEA), 6 an appellant must prove by

preponderant evidence7 that he exhausted his administrative remedies before OSC

and make nonfrivolous allegations 8 that (1) he made a 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 factor in the agency’s decision to take or fail to take a

personnel action as defined by 5 U.S.C. § 2302(a)(2)(A). 9 Corthell v. Department

of Homeland Security, 123 M.S.P.R. 417, ¶ 8 (2016), overruled on other grounds

by Requena v. Department of Homeland Security, 2022 MSPB 39. Once an

5

 The appellant filed a perfected petition for review after the Office of the Clerk of the

Board granted his request for an extension of time to file a perfected petition for

review. PFR File, Tabs 2-4.

6

 Pursuant to the WPEA, effective December 27, 2012, Congress expanded the grounds

on which an appellant may file an IRA appeal with the Board. Rebstock Consolidation

v. Department of Homeland Security, 122 M.S.P.R. 661, ¶ 5 (2015). The alleged events

at issue in the instant appeal occurred after the WPEA’s effective date. The relevant

holdings of pre-WPEA case law that we have cited in this Remand Order have not been

affected by the WPEA.

7

 A preponderance of the evidence is the degree of relevant evidence that a reasonable

person, considering the record as a whole, would accept as sufficient to find that a

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

8

 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at

issue. 5 C.F.R. § 1201.4(s).

9 The National Defense Authorization Act for Fiscal Year 2018 (2018 NDAA),

Pub. L. No. 115-91, 131 Stat. 1283, was signed into law on December 12, 2017, after

some of the events alleged in this appeal occurred. Section 1097 of the 2018 NDAA

amended various provisions of Title 5 of the U.S. Code. Our decision to remand this

appeal would be the same under both pre- and post-NDAA law.

4
appellant establishes jurisdiction over an IRA appeal, he is entitled to a hearing

on the merits of his claim, which he must prove by preponderant evidence.

Rebstock Consolidation v. Department of Homeland Security, 122 M.S.P.R. 661,

¶ 9 (2015). For the following reasons, we reverse the initial decision because we

find that the appellant has established jurisdiction over this IRA appeal.

¶7 For the first time on review, the appellant has submitted additional

documentation (including letters and emails with attachments) that he claims

proves he exhausted his remedies with OSC10 and shows he made nonfrivolous

allegations of jurisdiction. 11 PFR File, Tab 2 at 15, 18, 28-33, Tab 7 at 5-6, 13,

20-22, 25-26, 31-33. We have considered such documentation because the issue

of the Board’s jurisdiction is always before the Board 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 appellant has proven by preponderant evidence that he exhausted his

administrative remedies before OSC.

¶8 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. Miller v. Federal Deposit Insurance Corporation, 122 M.S.P.R. 3,

¶ 6 (2014), aff’d, 626 F. App’x 261 (Fed. Cir. 2015). The substantive

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

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

Security, 2022 MSPB 8, ¶ 10. The Board’s jurisdiction over an IRA appeal is

limited to those issues that have been previously raised with OSC, but appellants

may give a more detailed account of their whistleblowing activities before the

Board than they did to OSC. Id. An appellant who raises a claim of reprisal for

10 The OSC complaint in which the appellant raised the claims at issue in this appeal

was OSC File No. MA-18-5251. IAF, Tab 12 at 33-34.

11 In addition, the appellant has resubmitted OSC correspondence that already is a part

of the record before the administrative judge. PFR File, Tab 2 at 27, Tab 7 at 23-24,

27-30; IAF, Tab 1 at 8-9, Tab 14 at 5-7, 9-10, Tab 18 at 45.

5
perceived whistleblowing or perceived engagement in activity protected under

5 U.S.C. § 2302(b)(9) must establish that he exhausted his remedies with OSC

regarding that claim. King v. Department of the Army, 116 M.S.P.R. 689, ¶ 9

(2011); see Corthell, 123 M.S.P.R. 417, ¶¶ 12-13. Appellants may demonstrate

exhaustion of their OSC remedies with evidence regarding their initial OSC

complaint and other communications with OSC concerning their allegations.

See Baldwin v. Department of Veterans Affairs, 113 M.S.P.R. 469, ¶ 8 (2010).

¶9 On petition for review, the appellant argues that he has proven exhaustion

regarding his claim that his nonselection for the GEMS Manager position

constituted reprisal for making protected disclosures and engaging in protected

activities under 5 U.S.C. § 2302(b)(8)-(9). PFR File, Tab 4 at 5-9, Tab 7 at 5-13.

For the following reasons, we agree.

The appellant has proven exhaustion regarding his reprisal claims

under 5 U.S.C. § 2302(b)(8).

¶10 Based on the appellant’s submission of the following evidence, we find that

he has proven exhaustion regarding his reprisal claims under 5 U.S.C. § 2302(b)

(8). He submitted a December 14, 2018 letter from OSC that summarized his

whistleblower reprisal complaint as alleging that the agency failed to select him

for the GEMS Manager position in retaliation for, among other things, his report

in 2016 of “possible problems with asbestos” in a Veterans Affairs Medical

Center. IAF, Tab 1 at 8-9.12 He further submitted a January 16, 2018 email that

he sent to OSC in response to its preliminary determination to close its inquiry

into his prior whistleblower reprisal complaint concerning his nonselections in

2016-2017. IAF, Tab 12 at 36-43. In that email, he alleged that he made, and

was perceived to have made, disclosures about safety and health hazards and

12 If the appellant chooses to submit correspondence from OSC, it may be relied upon to

prove exhaustion of remedies with OSC. See Lewis v. Department of Defense, 123

M.S.P.R. 255, ¶ 10 (2016). However, the administrative judge may not rely upon

OSC’s decision or its characterization of the appellant’s allegations to make findings on

the merits of his IRA appeal. See 5 U.S.C. § 1214(a)(2)(B); Cassidy v. Department of

Justice, 118 M.S.P.R. 74, ¶ 16 (2012).

6
mismanagement to agency officials during his prior Hines VA employment as an

Industrial Hygienist. Id. The appellant declared under penalty of perjury that he

explained to OSC in his most recent OSC complaint that his nonselection for the

GEMS Manager position constituted additional reprisal for the matters described

in his January 16, 2018 email. PFR File, Tab 7 at 3, 5; IAF, Tab 12 at 3, 6; see

Chambers, 2022 MSPB 8, ¶ 11 (holding that exhaustion may be proved through a

declaration attesting to the matters raised with OSC). He further declared that he

raised before OSC the issue of meeting with the Hines VA Director to discuss

matters related to his application for his former Industrial Hygienist position in

October 2017, IAF, Tab 12 at 3, 17, and that he provided OSC with an Industrial

Hygiene event tracking table, a May 3, 2016 memorandum on lead and mold, and

a March 3, 2016 report on a mold investigation that he had prepared during his

prior Hines VA employment, PFR File, Tab 4 at 3, 6-8; IAF, Tab 12 at 44, Tab

13 at 28-30, Tab 16 at 4-42. Therefore, we find that the appellant has proven

exhaustion regarding his claim that his nonselection for the GEMS Manager

position constituted retaliation for alleged disclosures he made, and was

perceived to have made, to agency officials during his prior Hines VA

employment from 2015-2016 and to the Hines VA Director at an October 2017

meeting. 

The appellant has proven exhaustion regarding his reprisal claims

under 5 U.S.C. § 2302(b)(9).

¶11 We further find that the appellant has proven exhaustion regarding his

reprisal claims under 5 U.S.C. § 2302(b)(9) based on his submission of the

following evidence. In the appellant’s January 16, 2018 email that he sent to

OSC, he alleged that the agency perceived him as a whistleblower based on his

2013 OSC complaint, Board appeals, and EEO settlement concerning his

July 2013 termination from his prior Jesse Brown VA employment and based on

his OIG complaint concerning problems at the Hines VA. IAF, Tab 12 at 37, 41.

He further alleged in his email to OSC that he filed one USERRA and two VEOA

7
complaints with DOL concerning his nonselections in 2016-2017. Id. at 40. In

addition, the appellant submitted an October 13, 2017 letter from OIG confirming

that he met with OIG in June 2016 to discuss safety concerns at the Hines VA.

Id. at 35. Moreover, the appellant declared under penalty of perjury that OSC

considered his January 16, 2018 email and the October 13, 2017 OIG letter as

part of his most recent whistleblower reprisal complaint regarding his

nonselection for the GEMS Manager position. Id. at 3, 6.

¶12 Further, the appellant has submitted OSC letters dated November 15 and

December 14, 2018, which summarized his whistleblower reprisal complaint as

alleging that the agency failed to select him for the GEMS Manager position in

retaliation for his prior November 2017 OSC complaint, his August 2018

USERRA complaint with DOL, and his August 2018 Board appeal. PFR File,

Tab 7 at 25; IAF, Tab 1 at 8. He also has submitted a separate OSC letter

dated December 14, 2018, which acknowledged that he raised an additional

allegation of reprisal for filing an EEO complaint. PFR File, Tab 7 at 21. In

addition, the appellant has submitted September 2018 emails that he sent to OSC

in which he raised the following issues: he alleged that the selecting official for

the GEMS Manager position was “coerced by ex[ ]parte remarks” from certain

agency officials because of his IRA, USERRA, and VEOA appeals concerning his

nonselections in 2016-2017 and his USERRA and VEOA appeals concerning his

nonselection for the GEMS Manager position; and he discussed his USERRA

complaint that DOL had referred to OSC and his VEOA complaint with DOL

concerning the GEMS Manager position. 13 PFR File, Tab 2 at 29-32.

¶13 Therefore, we find that the appellant has proven exhaustion regarding his

claim that his nonselection for the GEMS Manager position constituted reprisal

for his engagement, and perceived engagement, in the following alleged

activities: (1) the 2013 OSC complaint, an EEO complaint, and two Board

13 OSC designated the USERRA complaint referred by DOL as OSC File No. RE-18-

5666. IAF, Tab 18 at 14-15.

8
appeals he filed concerning his July 2013 termination from his prior Jesse Brown

VA employment; (2) a June 2016 OIG complaint he filed concerning safety issues

at the Hines VA; (3) a November 2017 whistleblower reprisal complaint he filed

with OSC, one USERRA and two VEOA complaints he filed with DOL, and three

IRA, USERRA, and VEOA appeals he filed with the Board concerning his

nonselections in 2016-2017; (4) a May 2018 VEOA complaint and an

August 2018 USERRA complaint he filed with DOL and two August 2018 VEOA

and USERRA appeals he filed with the Board concerning his nonselection for the

GEMS Manager position; and (5) a USERRA complaint he filed with DOL that

was referred to OSC.

The appellant has made nonfrivolous allegations sufficient to establish

jurisdiction over this IRA appeal.

¶14 The next jurisdictional inquiry is whether the appellant has made

nonfrivolous allegations that he made a whistleblowing disclosure or engaged in a

protected activity that was a contributing factor in his nonselection for the

GEMS Manager position.14 Corthell, 123 M.S.P.R. 417, ¶ 8. A nonfrivolous

allegation of a protected whistleblowing disclosure is an allegation of facts that,

if proven, would show that the appellant disclosed a matter that a reasonable

person in his position would believe evidenced one of the categories of

wrongdoing specified in 5 U.S.C. § 2302(b)(8). Salerno v. Department of the

Interior, 123 M.S.P.R. 230, ¶ 6 (2016). The test to determine whether a putative

whistleblower has a reasonable belief in the disclosure is an objective one:

whether a disinterested observer with knowledge of the essential facts known to

and 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 a substantial

and specific danger to public health or safety. Id.

14 A nonselection is a personnel action. King, 116 M.S.P.R. 689, ¶ 10.

9
¶15 To satisfy the contributing factor criterion at the jurisdictional stage, an

appellant only need raise a nonfrivolous allegation that the fact, or content of, the

whistleblowing disclosure or protected activity was one factor that tended to

affect the personnel action in any way. See id., ¶ 13. Under the

knowledge/timing test, an appellant may nonfrivolously allege that the disclosure

or activity was a contributing factor in a personnel action through circumstantial

evidence, such as evidence that the official who took the personnel action knew

of the disclosure or activity and that the personnel action occurred within a period

of time such that a reasonable person could conclude that the disclosure or

activity was a contributing factor in the personnel action. See 5 U.S.C. § 1221(e)

(1); Salerno, 123 M.S.P.R. 230, ¶ 13.

¶16 For a claim of reprisal for perceived whistleblowing or engagement in other

protected activity, the relevant jurisdictional inquiry is whether the appellant has

made nonfrivolous allegations that (1) the agency perceived that he made, or

intended to make, a protected disclosure under 5 U.S.C. § 2302(b)(8) or engaged

in an activity protected under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and

(2) the agency’s perception was a contributing factor in the personnel action. See

Corthell, 123 M.S.P.R. 417, ¶ 13; King, 116 M.S.P.R. 689, ¶¶ 8-9. 

¶17 For the following reasons, we find that the appellant has made nonfrivolous

allegations sufficient to establish jurisdiction over some, but not all, of his

exhausted claims.

The appellant’s alleged disclosures under 5 U.S.C. § 2302(b)(8).

The appellant has failed to nonfrivolously allege that he made,

or was perceived to have made, a protected whistleblowing

disclosure concerning gross mismanagement during his prior

Hines VA employment.

¶18 The appellant alleged that he made the following disclosures concerning

mismanagement during his prior Hines VA employment: (1) he questioned the

Assistant to the Chief of Engineering why there was no emergency funding for

10
asbestos cleanup, IAF, Tab 13 at 22; (2) he sent to his supervisor a March 16,

2016 email in which he claimed that it was inappropriate for her to ask the Fire

Protection Manager to annotate his work hours and described his concerns about

the adequacy of the Fire Protection Manager’s confined-space rescue plan for a

steam-tunnel system, IAF, Tab 14 at 17-19; and (3) he sent to his supervisor a

May 5, 2016 email in which he requested additional resources to support the

Industrial Hygiene program, IAF, Tab 6 at 37. Because the substance of these

alleged disclosures suggests, at most, that management committed de minimis

wrongdoing or negligence, we find that the appellant has failed to make a

nonfrivolous allegation that he made, or was perceived to have made, a protected

disclosure evidencing gross mismanagement. See Swanson v. General Services

Administration, 110 M.S.P.R. 278, ¶ 11 (2008) (explaining that “gross

mismanagement” means more than de minimis wrongdoing or negligence; it

means a management action or inaction that creates a substantial risk of

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

The appellant has nonfrivolously alleged that he made

protected whistleblowing disclosures of safety and health

hazards to agency officials during his prior Hines VA

employment that were a contributing factor in his

nonselection.

¶19 Although the appellant’s pleadings are not a model of clarity, we have

identified the following disclosures of safety and health hazards that he allegedly

made during his prior Hines VA employment: (1) he provided to his managers

and the Human Resources (HR) Officer an Industrial Hygiene event tracking table

in which he identified specific rooms in the Hines VA that contained dangerous

levels of lead, mold, and asbestos, PFR File, Tab 4 at 7-8; IAF, Tab 12 at 44;

(2) he reported to his supervisor that, in Building 1, there was mold in the laundry

area and that Information Technology employees were being exposed to asbestos,

IAF, Tab 12 at 39, Tab 13 at 21; (3) he reported to his supervisor and the former

Chief of Engineering that he was concerned about mold and asbestos in day care

11
areas and the men’s bathroom in Building 2, IAF, Tab 6 at 24; (4) he sent to his

supervisor a February 9, 2016 email in which he described his concerns about the

adequacy of a hazardous waste storage shed, IAF, Tab 14 at 13; (5) he provided

to his managers and the HR Officer a March 3, 2016 report in which he explained

that HR employees were being exposed to mold and unsanitary conditions in

Building 17, PFR File, Tab 2 at 19, Tab 4 at 8; IAF, Tab 16 at 4-42; (6) he sent to

his supervisor a March 16, 2016 email in which he described his concerns about

the adequacy of a confined-space rescue plan for an outdated steam-tunnel system

that posed the risk of steam-line ruptures, IAF, Tab 6 at 35, Tab 12 at 7, Tab 13

at 23, Tab 14 at 17-18; and (7) he provided to his managers and the HR Officer a

May 3, 2016 memorandum in which he discussed the possibility of lead, asbestos,

mold, and fungus in the auditorium in Building 9, where children recently had

attended a community event, PFR File, Tab 4 at 8; IAF, Tab 2 at 33, Tab 13

at 28-30.

¶20 In determining whether a disclosure evidenced a substantial and specific

danger to public health or safety, it is relevant for the Board to consider factors

such as (1) the likelihood of harm resulting from the danger, (2) the imminence of

the potential harm, and (3) the nature of the potential harm. Parikh v.

Department of Veterans Affairs, 116 M.S.P.R. 197, ¶ 14 (2011). Considering

these factors, we find that the appellant’s alleged disclosures of safety and health

hazards, as described above, are specific and, if true, would pose a likely,

imminent, and serious danger to the health and safety of staff, patients, and

visitors at the Hines VA. Therefore, we find that the appellant nonfrivolously

alleged that he made protected disclosures that a reasonable person with his

Industrial Hygienist experience would believe evidenced a substantial and

specific danger to public health or safety. See, e.g., Wojcicki v. Department of

the Air Force, 72 M.S.P.R. 628, 634-35 (1996). We further find that the

appellant nonfrivolously alleged that a reasonable person in his position would

believe that the alleged disclosures of safety and health hazards described above

12
also evidenced a violation of a law, rule, or regulation concerning workplace

safety. See, e.g., Schoenig v. Department of Justice, 120 M.S.P.R. 318, ¶ 9

(2013).

¶21 For the following reasons, we find that the appellant has nonfrivolously

alleged that the disclosures of safety and health hazards described above were a

contributing factor in his nonselection. Because the appellant allegedly made

such disclosures during his prior Hines VA Employment from December 2015

through June 2016, IAF, Tab 13 at 16, and his nonselection occurred around

May 2018, IAF, Tab 1 at 3, Tab 2 at 5, he does not meet the timing component of

the knowledge/timing test, see Salerno, 123 M.S.P.R. 230, ¶ 14 (observing that a

personnel action taken within approximately 1 to 2 years of the disclosures

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

knowledge/timing test is not the only way for an appellant to satisfy the

contributing factor criterion. Dorney v. Department of the Army, 117 M.S.P.R.

480, ¶ 14 (2012). When, as here, an appellant fails to satisfy the

knowledge/timing test, the Board considers other evidence, such as evidence

pertaining to the strength or weakness of the agency’s reasons for taking the

personnel action, whether the whistleblowing was personally directed at the

proposing or deciding officials, and whether these individuals had a desire or

motive to retaliate against the appellant. See id., ¶ 15. Any weight given to a

whistleblowing disclosure, either alone or in combination with other factors, can

satisfy the contributing factor criterion. Id.

¶22 Here, the appellant alleged that the selecting official’s supervisor, who was

the Associate Director and chaired the Hines Safety Committee, had general

knowledge of his disclosures. IAF, Tab 12 at 19, Tab 13 at 16, 21, 23. The

appellant further alleged that he gave the HR Officer the Industrial Hygiene event

tracking table, the March 3, 2016 report on a mold investigation, and the May 3,

2016 memorandum on lead and mold. PFR File, Tab 2 at 19, Tab 4 at 7-8; IAF,

Tab 12 at 44, Tab 13 at 28-30, Tab 16 at 4-42. Moreover, the appellant alleged

13
that the HR Officer sent him an email on May 9, 2018, in which the HR Officer

stated that the reason the appellant was not selected for the GEMS Manager

position was because he was not on the certificate of eligibles. IAF, Tab 2 at 5,

Tab 6 at 31. The appellant further alleged that the selecting official’s supervisor

and the HR Officer instructed the selecting official to hire an applicant from the

certificate of eligibles only. IAF, Tab 6 at 23-24. The appellant argues that the

agency had the authority to amend the certificate and to consider him for the

GEMS Manager position as a qualified applicant and a disabled veteran, but the

agency wrongfully denied his request to be on the certificate that he had made

when he submitted his application. Id. at 22-25, 28-31. To support his argument,

the appellant submitted a letter from DOL determining that the agency had

violated his veterans’ preference rights regarding his nonselection. IAF, Tab 1

at 10. Because the appellant has raised a material issue about the strength or

weakness of the agency’s reasons for not selecting him, we find that he has

nonfrivolously alleged that his disclosures of safety and health hazards that were

known to the selecting official’s supervisor and the HR Officer were a

contributing factor in their actions that influenced the selecting official’s

decision. See, e.g., Dorney, 117 M.S.P.R. 480, ¶ 17.

The appellant has nonfrivolously alleged that he made

protected whistleblowing disclosures about asbestos and

veterans’ preference violations to the Hines VA Director in an

October 2017 meeting that were a contributing factor in his

nonselection.

¶23 The appellant alleged that, in an October 2017 meeting with the Hines VA

Director, he reiterated his concern that employees were being exposed to

asbestos. IAF, Tab 6 at 24, Tab 13 at 17. Assuming that the appellant raised the

same or similar disclosures concerning asbestos that he allegedly had made

during his prior Hines VA employment, as described and analyzed above, we find

that he nonfrivolously alleged that he made a protected disclosure evidencing a

substantial and specific danger to public health or safety and a violation of a law,

14
rule, or regulation concerning workplace safety. See 5 U.S.C. § 2302(f)(1)(B)

(providing that a disclosure shall not be excluded from subsection (b)(8) because

it revealed information that had been previously disclosed). We further find that

the appellant’s allegation that he also complained to the Hines VA Director at the

meeting about how the agency was violating his veterans’ preference rights and

denying him the ability to compete by failing to rehire him constitutes a

nonfrivolous allegation that he made a protected disclosure evidencing a violation

of a law, rule, or regulation concerning veterans’ preference. IAF, Tab 6 at 24,

Tab 12 at 17, Tab 13 at 17. However, we find that the appellant’s allegation that

he told the Hines VA Director that he could help the agency fix problems such as

the mismanagement of the Industrial Hygiene program is not sufficiently specific

or detailed to nonfrivolously allege that he made, or was perceived to have made,

a protected disclosure evidencing gross mismanagement. IAF, Tab 13 at 17; see

Salerno, 123 M.S.P.R. 230, ¶¶ 6-7. 

¶24 Moreover, we find that the appellant made nonfrivolous allegations

satisfying the contributing factor criterion through the knowledge/timing test.

Specifically, the appellant’s May 2018 nonselection occurred less than 1 year

after he allegedly made protected disclosures to the Hines VA Director in an

October 2017 meeting. IAF, Tab 1 at 3, Tab 2 at 5, Tab 6 at 24, Tab 12 at 17,

Tab 13 at 17. Thus, the timing component is satisfied. See Salerno,

123 M.S.P.R. 230, ¶ 14. The appellant further alleged that the Hines VA Director

advised the selecting official not to hire him for the GEMS Manager position.

IAF, Tab 2 at 4. Accordingly, we find that the appellant nonfrivolously alleged

that the selecting official had constructive knowledge of his alleged disclosures to

the Hines VA Director about asbestos and veterans’ preference violations. See

Bradley v. Department of Homeland Security, 123 M.S.P.R. 547, ¶ 15 (2016)

(observing that an appellant may establish an official’s constructive knowledge of

a protected disclosure by demonstrating that an individual with actual knowledge

of the disclosure influenced the official accused of taking the retaliatory action).

15
The appellant’s alleged activities under 5 U.S.C. § 2302(b)(9).

The appellant has nonfrivolously alleged that he engaged in

 protected activities under 5 U.S.C. § 2302(b)(9)(C) that were a

contributing factor in his nonselection.

¶25 Protected activity under 5 U.S.C. § 2302(b)(9)(C) is “cooperating with or

disclosing information to the Inspector General (or any other component

responsible for internal investigation or review) of an agency, or the Special

Counsel, in accordance with applicable provisions of law.” The appellant has

submitted a letter from OIG confirming that he filed, a June 2016 OIG complaint

concerning safety issues at the Hines VA. IAF, Tab 2 at 27. Further, the record

contains a letter from OSC dated October 18, 2018, confirming that, pursuant to

the appellant’s referral request, OSC reviewed his USERRA complaint that he

had filed with DOL alleging that he had been denied reinstatement and was not

selected for vacancies in 2016-17 after he had resigned from his position to seek

treatment for service-connected injuries. IAF, Tab 18 at 14-15. Therefore, we

find that the appellant has nonfrivolously alleged that he engaged in protected

activity under 5 U.S.C. § 2302(b)(9)(C) by filing the aforementioned OIG

complaint and by referring his USERRA complaint to OSC.

¶26 For the following reasons, we find that the appellant has nonfrivolously

alleged that his OIG complaint and the referral of his USERRA complaint to OSC

were a contributing factor in his nonselection. Specifically, the appellant’s May

2018 nonselection occurred less than 2 years after he allegedly filed an OIG

complaint in June 2016 IAF, Tab 1 at 3, Tab 2 at 5, 27. Thus, the timing

component of the knowledge/timing test is satisfied. See Salerno, 123 M.S.P.R.

230, ¶ 14. In addition, the appellant alleged that the HR Officer knew of the

complaint. IAF, Tab 2 at 5, Tab 5 at 9, 21, Tab 13 at 18-19, 21. The appellant

further alleged that the selecting official had constructive knowledge of the

complaint because the HR Officer, with the HR staff, influenced the selecting

official by effectively telling him not to hire the appellant. IAF, Tab 2 at 5, Tab 6

16
at 24, Tab 13 at 20-21; see Bradley, 123 M.S.P.R. 547, ¶ 15. Therefore, we find

that the appellant has satisfied the contributing factor criterion through the

knowledge/timing test for purposes of his June 2016 OIG complaint.

¶27 Although the appellant does not specify when he requested that DOL refer

his USERRA complaint to OSC, the record reflects that OSC received his file

from DOL by at least September 2018 and that it ended its review of his case in

October 2018. PFR File, Tab 2 at 29; IAF, Tab 18 at 14. The record further

reflects that DOL’s investigation of his USERRA complaint was ongoing in

November and December 2017. IAF, Tab 13 at 32, Tab 18 at 51-53. Moreover,

the appellant alleged that the selecting official and the HR Officer knew of his

USERRA complaint because they reviewed his related Freedom of Information

Act request in February 2018. PFR File, Tab 7 at 8; IAF, Tab 6 at 24, 34, Tab 12

at 7, 12. Because the appellant’s USERRA complaint accused the HR Officer of

wrongdoing regarding the appellant’s nonselections in 2016-2017, we find that

the appellant has nonfrivolously alleged that the HR Officer, who purportedly

influenced the selecting official, had a motive to retaliate based on the appellant’s

USERRA complaint. IAF, Tab 12 at 36-40, Tab 13 at 20-21, Tab 18 at 14, 51.

Thus, we find that the appellant has made nonfrivolous allegations sufficient to

establish that the referral of his USERRA complaint to OSC was a contributing

factor in his nonselection.15 See Dorney, 117 M.S.P.R. 480, ¶ 15.

The appellant has nonfrivolously alleged that he engaged in

 protected activities under 5 U.S.C. § 2302(b)(9)(A)(i) that

were a contributing factor in his nonselection.

¶28 Protected activity under 5 U.S.C. § 2302(b)(9)(A)(i) is “the exercise of any

appeal, complaint, or grievance right granted by any law, rule, or regulation—

(i) with regard to remedying a violation of [5 U.S.C. § 2302(b)(8)].” Thus, only

appeals, complaints, or grievances seeking to remedy whistleblower reprisal are

15 On remand, the administrative judge should address when the appellant requested that

DOL refer his USERRA complaint to OSC in determining whether he proves the

contributing factor criterion.

17
covered under 5 U.S.C. § 2302(b)(9)(A)(i). See Mudd v. Department of Veterans

Affairs, 120 M.S.P.R. 365, ¶¶ 6-7 (2013). Here, it is undisputed that the appellant

sought to remedy alleged whistleblower reprisal in two prior Board appeals he

filed concerning his July 2013 termination from his prior Jesse Brown VA

employment and a prior IRA appeal he filed with the Board concerning his

nonselections in 2016-2017. ID at 2-3, 5. Further, the appellant filed the 2013

OSC complaint alleging that his July 2013 termination from his prior Jesse Brown

VA employment had been retaliatory and the November 2017 OSC complaint

asserting retaliation with respect to his nonselections in 2016-2017. Therefore,

we find that the appellant has nonfrivolously alleged that he engaged in protected

activity under 5 U.S.C. § 2302(b)(9)(A)(i) by filing these prior Board appeals and

OSC complaints.

¶29 However, we find that the appellant has failed to nonfrivolously allege that

he engaged, or was perceived to have engaged, in protected activity under

5 U.S.C. § 2302(b)(9)(A)(i) based on the following remaining alleged activities

that he exhausted: an EEO complaint he filed concerning his July 2013

termination from his prior Jesse Brown VA employment; one USERRA and two

VEOA complaints he filed with DOL and two USERRA and VEOA appeals he

filed with the Board concerning his nonselections in 2016-2017; a May 2018

VEOA complaint and an August 2018 USERRA complaint he filed with DOL and

two August 2018 VEOA and USERRA appeals he filed with the Board

concerning his nonselection for the GEMS Manager position. 16 See supra ¶ 13.

In particular, the appellant’s submissions do not suggest that he sought to remedy

alleged whistleblower reprisal in any of these complaints or appeals; rather, his

submissions suggest that he filed them to remedy alleged EEO, USERRA, and

16 Moreover, the appellant’s May 20, 2018 VEOA complaint and August 2018 USERRA

complaint he filed with DOL and two August 2018 VEOA and USERRA appeals he

filed with the Board could not have been a contributing factor in his nonselection

because he allegedly filed them after he was not selected on or around May 9, 2018.

IAF, Tab 1 at 3, Tab 2 at 5, 11.

18
VEOA violations. PFR File, Tab 2 at 29-31; IAF, Tab 2 at 9-11, Tab 6 at 29,

Tab 7 at 27, Tab 12 at 40; see ID at 2-6. Even if the appellant’s alleged EEO and

DOL complaints and USERRA and VEOA appeals constitute protected activity

under 5 U.S.C. § 2302(b)(9)(A)(ii), they cannot form the basis of an IRA appeal.

See 5 U.S.C. § 1221(e); Mudd, 120 M.S.P.R. 365, ¶ 7.

¶30 For the following reasons, we find that the appellant has nonfrivolously

alleged that his two prior Board appeals concerning his July 2013 termination

from his prior Jesse Brown VA employment and his prior IRA appeal concerning

his nonselections in 2016-2017 were a contributing factor in his nonselection for

the GEMS Manager position. Regarding the appellant’s prior IRA appeal

concerning his nonselections in 2016-2017, we find that the appellant has met the

timing component of the knowledge/timing test because his May 2018

nonselection allegedly occurred approximately 5 months after he filed that appeal

in December 2017. ID at 5; IAF, Tab 1 at 3, Tab 2 at 5; see Salerno,

123 M.S.P.R. 230, ¶ 14. We further find that the appellant’s assertions that the

selecting official’s supervisor and the HR Officer had knowledge of his prior

IRA appeal, PFR File, Tab 2 at 31, and that they effectively told the selecting

official not to hire the appellant, IAF, Tab 2 at 5, Tab 6 at 24, Tab 13 at 20-21,

constitute nonfrivolous allegations that the selecting official had constructive

knowledge of his prior IRA appeal. See Bradley, 123 M.S.P.R. 547, ¶ 15.

Therefore, we find that the appellant has satisfied the contributing factor criterion

through the knowledge/timing test for purposes of his prior IRA appeal.

¶31 Regarding the appellant’s two prior Board appeals concerning his July 2013

termination from his prior Jesse Brown VA employment, the appellant alleged

that the HR Officer had knowledge of these appeals because the HR Officer asked

him questions related to the matter. IAF, Tab 6 at 29, Tab 12 at 37; see ID at 2-3.

Further, the appellant has alleged that the selecting official knew about these

appeals because the selecting official thought he had contested his termination.

PFR File, Tab 7 at 7; IAF, Tab 7 at 19, Tab 13 at 22. As explained above, the

19
appellant has raised a material issue about the strength or weakness of the

HR Officer’s stated reason for the appellant’s nonselection, i.e., he was not on the

certificate of eligibles. IAF, Tab 2 at 5, 9, Tab 6 at 31. Thus, we find that the

appellant has nonfrivolously alleged that his prior Board appeals concerning his

July 2013 termination were a contributing factor in his nonselection. See, e.g.,

Dorney, 117 M.S.P.R. 480, ¶ 17.

¶32 In addition, the appellant alleged that the HR Officer knew about the

appellant’s OSC complaint concerning his July 2013 termination from his prior

Jesse Brown VA employment. PFR File, Tab 7 at 31-33; IAF, Tab 12 at 37. As

explained above, the appellant has raised a material issue about the strength or

weakness of the HR Officer’s stated reason for the appellant’s nonselection, i.e.,

he was not on the certificate of eligibles. IAF, Tab 2 at 5, 9, Tab 6 at 31. Thus,

we find that the appellant has nonfrivolously alleged that his prior OSC complaint

concerning his July 2013 termination was a contributing factor in his

nonselection. See, e.g., Dorney, 117 M.S.P.R. 480, ¶ 17.

¶33 As to the appellant’s November 2017 OSC complaint, the complaint was

filed approximately 7 months before the May 2018 nonselection, and therefore

the timing component of the knowledge/timing test is satisfied. See Salerno,

123 M.S.P.R. 230, ¶ 14. And, as noted above, the appellant alleged that the HR

Officer had knowledge of the complaint and influenced the selecting official by

effectively telling him not to hire the appellant. IAF, Tab 2 at 5, Tab 6 at 24, Tab

13 at 20-21; see Bradley, 123 M.S.P.R. 547, ¶ 15. Accordingly, we find that the

appellant has made a nonfrivolous allegation that the November 2017 OSC

complaint was a contributing factor in the agency’s decision not to select him for

the GEMS Manager position.

¶34 Accordingly, because we find that the appellant has exhausted his

administrative remedies before OSC and has nonfrivolously alleged that he made

protected whistleblowing disclosures and engaged in protected activities that

were a contributing factor in his nonselection for the GEMS Manager position , we

20
remand this IRA appeal for the appellant’s requested hearing and a decision on

the merits of his claim. 17 Specifically, on remand, the administrative judge shall

adjudicate the appellant’s claim that his nonselection constituted reprisal for the

following: (1) disclosures of safety and health hazards that he made to agency

officials during his prior Hines VA employment in 2015-2016; (2) disclosures

about asbestos and veterans’ preference violations that he made to the Hines VA

Director in an October 2017 meeting; (3) a prior OSC complaint and two Board

appeals he filed concerning his July 2013 termination from his prior Jesse Brown

VA employment; (4) a June 2016 OIG complaint he filed concerning safety issues

at the Hines VA; (5) a November 2017 OSC complaint and a prior IRA appeal he

filed concerning his nonselections in 2016-2017; and (6) a USERRA complaint he

filed with DOL that was referred to OSC for review. 18

17 On remand, the administrative judge should consider whether the appellant’s

disclosures under 5 U.S.C. § 2302(b)(8) were made during the normal course of his

duties. Section 101 of the WPEA provided, in part, that a disclosure “made during the

normal course of duties of an employee,” and otherwise covered by 5 U.S.C. § 2302(b)

(8), is protected if the agency “took, failed to take, or threatened to take or fail to take a

personnel action with respect to that employee in reprisal for the disclosure.” This

provision was initially codified at 5 U.S.C. § 2302(f)(2). On October 26, 2017,

Congress enacted the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017, Pub.

L. No. 115-73, 131 Stat. 1235, which recodified the provision at 5 U.S.C. § 2302(e)(2).

Section 1097 of the 2018 NDAA amended and recodified the provision at 5 U.S.C. §

2302(f)(2). The Board has held that section 2302(f)(2) imposed an “extra proof

requirement” for these types of disclosures such that an appellant to whom the provision

applies must prove by preponderant evidence that the agency took a personnel action

because of the disclosure and did so with an improper, retaliatory motive. See Salazar v.

Department of Veterans Affairs, 2022 MSPB 42, ¶ 13. Moreover, this section of the

statute expressly applies only to an employee whose principal job function is to

regularly investigate and disclose wrongdoing. Id., ¶ 15. The administrative judge

should consider what effect, if any, section 2302(f)(2) has on this appeal.

18 If the appellant cannot prove on remand that he made a particular protected disclosure

or engaged in a particular protected activity, the administrative judge should consider

the appellant’s alternative exhausted claim that his nonselection constituted retaliation

based on the agency’s perception that he made a protected disclosure or engaged in a

protected activity. See King, 116 M.S.P.R. 689, ¶ 6 (explaining that an individual who

is perceived as a whistleblower still is entitled to the protections of the Whistleblower

Protection Act, even if he has not made protected disclosures).

21
The appellant’s remaining evidence and argument on review do not warrant a

different outcome.

¶35 On review, the appellant asserts that the agency violated his constitutional

due process rights, committed harmful error and other prohibited personnel

practices, discriminated against him, and committed violations of his veterans’

preference rights. PFR File, Tab 2 at 15-17, 19-23, Tab 7 at 6-7. The Board does

not have jurisdiction over these claims in the context of an IRA appeal. See, e.g.,

Benton-Flores v. Department of Defense, 121 M.S.P.R. 428, ¶ 6 n.1 (2014);

Smets v. Department of the Navy, 117 M.S.P.R. 164, ¶ 14 (2011), aff’d,

498 F. App’x 1 (Fed. Cir. 2012); McCarthy v. International Boundary and Water

Commission, 116 M.S.P.R. 594, ¶ 27 (2011), aff’d, 497 F. App’x 4 (Fed. Cir.

2012). On remand, the administrative judge should consider such assertions only

to the extent they are relevant or material to the appellant’s reprisal claims. See

Marren v. Department of Justice, 51 M.S.P.R. 632, 638-39 (1991), aff’d, 980 F.2d

745 (Fed. Cir. 1992) (Table), and modified on other grounds by Robinson

v. U.S. Postal Service, 63 M.S.P.R. 307, 323 n.13 (1994).

¶36 In addition, we decline to address the appellant’s allegations pertaining to

his other Board appeals or matters that are otherwise outside the scope of this

IRA appeal.19 PFR File, Tab 7 at 9, 34-40.

¶37 Finally, to the extent the appellant argues that the administrative judge was

biased because she unfairly closed the case, PFR File, Tab 7 at 16, we find that

19 We find that the administrative judge correctly denied the appellant’s stay request

because, although the appellant has satisfied the nonfrivolous allegation standard at this

jurisdictional stage, he has not yet provided evidence or argument showing a substantial

likelihood that he will prevail on the merits. Hendy v. Department of Veterans Affairs,

MSPB Docket No. CH-1221-19-0217-S-1, Stay File (S-1 File), Tab 3; PFR File, Tab 4

at 9; see Mogyorossy v. Department of the Air Force, 96 M.S.P.R. 652, ¶ 25 (2004)

(finding that the administrative judge correctly denied the appellant’s stay request). We

address the appellant’s argument on this issue because the administrative judge denied

his request for an interlocutory appeal of the stay decision. S-1 File, Tab 16; see

Mogyorossy 96 M.S.P.R. 652, ¶ 24 (addressing the appellant’s arguments regarding his

entitlement to a stay in an IRA appeal when the administrative judge denied his request

for a stay and his request for an interlocutory appeal of that decision). 

22
this is an insufficient basis to rebut the presumption of honesty and integrity that

accompanies an administrative judge, see Bieber v. Department of the Army,

287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States,

510 U.S. 540, 555 (1994) for the proposition that an administrative judge’s

conduct during the course of a Board proceeding warrants a new adjudication

only if her comments or actions evidence “a deep-seated favoritism or antagonism

that would make fair judgment impossible.”). In sum, we have considered the

appellant’s remaining evidence and argument on review but find that they do not

warrant a different outcome in this appeal.

ORDER

¶38 For the reasons discussed above, we remand this case to the regional office

for further adjudication in accordance with this Remand Order. 

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

23