UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

BENJAMIN A. NEVAREZ,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

DE-0752-18-0109-I-1

DATE: April 25, 2024

THIS ORDER IS NONPRECEDENTIAL1

R. Chris Pittard, Esquire, San Antonio, Texas, for the appellant. 

Casey W. Hinson, Esquire, Falls Church, Virginia, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

REMAND ORDER

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

sustained his removal. For the reasons discussed below, we GRANT the

appellant’s petition for review. We AFFIRM the administrative judge’s findings

that the agency met its burden to prove the charge, nexus, and penalty, and that

the appellant failed to prove his Title VII discrimination and retaliation claims.

We VACATE the administrative judge’s findings as to the appellant’s claim of

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
reprisal for activity protected under 5 U.S.C. § 2302(b)(9)(C), and REMAND the

case to the field office for further adjudication in accordance with this Remand

Order.

BACKGROUND

Prior to his removal, the appellant was employed as a GS-07 Supervisory

Security Guard at the agency’s Test and Evaluation Command at the White Sands

Missile Range (WSMR) in New Mexico. Initial Appeal File (IAF), Tab 1 at 1,

Tab 10 at 41. The appellant’s job duties included performing as the shift

supervisor for the civilian guards tasked with providing protective measures at a

nuclear reactor. IAF, Tab 10 at 44-45. As a condition of his employment, he was

required to maintain Personnel Reliability Program (PRP) enrollment. Id. at 45.

The purpose of the PRP is to ensure that each employee who performs duties in

support of the nuclear weapons program or at agency nuclear facilities “meets the

highest possible standards of reliability.” Id. at 50.

In March 2011, the appellant made disclosures to the agency’s Office of the

Inspector General (OIG) and to his supervisors that he and his subordinates

should not have been charged leave after they were instructed to go home after

completing a training exercise that month. IAF, Tab 9 at 4, 70; Nevarez v.

Department of the Army, MSPB Docket No. DE-1221-13-0166-B-1, Remand

Initial Decision (0166 RID) at 3-4, 11 (Aug. 24, 2016). On February 13, 2012,

the appellant filed a complaint with the Office of Special Counsel (OSC), in

which he alleged that he had been subject to reprisal after he made his

March 2011 disclosures. IAF, Tab 9 at 70. He alleged that, in reprisal for his

whistleblowing, the agency proposed to suspend him for 30 days, which was later

changed to a letter of proposed removal, but was ultimately mitigated to a 3 -day

suspension. Id. at 68. He also alleged that he was given a lowered performance

appraisal rating and placed on administrative leave until October 31, 2012. Id.

On November 27, 2012, OSC closed its investigation and advised the appellant of

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his right to file an individual right of action (IRA) appeal before the Board. Id.

at 68-71. 

In January 2013, the appellant filed an IRA appeal. Nevarez v. Department

of the Army, MSPB Docket No. DE-1221-13-0166-W-2, Initial Decision at 1

(May 15, 2014). The field office issued an initial decision denying the

appellant’s request for corrective action. Id. at 2, 10. The appellant filed a

petition for review of that initial decision, and the Board issued a remand order

vacating the initial decision and remanding the appeal for further adjudication.

Nevarez v. Department of the Army, MSPB Docket No. DE-1221-13-0166-W-2,

Remand Order (0166 RO) (Sept. 29, 2014). On remand, the field office found

that the agency retaliated against the appellant—by removing his ability to certify

time and attendance records for his subordinates in March 2011, lowering his

performance rating for the rating period from March 2011 to February 2012, and

proposing a 30-day suspension in August 2011—for his March 2011 disclosure.

0166 RID at 11, 14-22. 

Meanwhile, in May 2013, the Chief of Security Operations at the WSMR

temporarily disqualified the appellant from continued enrollment in the PRP, and,

3 months later, recommended permanent disqualification to the WSMR’s

Commander. IAF, Tab 10 at 34-36, 40. As justification, this recommendation

alleged, among other reasons, that the appellant had failed to follow instructions,

showed an unwillingness to complete tasks, failed to attend a meeting with the

Chief of Security Operations in March 2013, failed to attend a meeting with the

Commander in May 2013, and made unsubstantiated claims alleging supervisors

violated rules in March 2013. Id. at 35-36. The Commander permanently

disqualified the appellant from the PRP as of September 10, 2013. Id. at 32-33.

On November 2, 2017, the agency proposed the appellant’s removal for failure to

meet a condition of employment due to his permanent disqualification from the

PRP in 2013. Id. at 30-31. On December 5, 2017, the deciding official removed

the appellant effective December 9, 2017. Id. at 23. 

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After holding the appellant’s requested hearing, the administrative judge

sustained the appellant’s removal. IAF, Tab 26, Initial Decision (ID) at 2.

Specifically, he found that the agency proved its charge that the appellant failed

to meet a condition of his employment due to his disqualification from the PRP.

ID at 8-11. The administrative judge denied the appellant’s affirmative defenses.

ID at 11-15. Specifically, he found that, while the three supervisors who were

characterized in the remand initial decision in the appellant’s prior appeal as

having a strong motive to retaliate against the appellant submitted materials in

support of the appellant’s PRP disqualification, the Commander did not greatly

rely on those materials when making his decision. ID at 12; 0166 RID at 16, 18,

23. Thus, he found that the appellant did not prove that his protected activity of

filing an OSC complaint was a contributing factor in his PRP disqualification. ID

at 11-13. He went on to find that the agency proved it would have removed the

appellant absent his protected activity. ID at 12-13. The administrative judge did

not address the appellant’s claim of reprisal for his March 2011 disclosure. Id.;

IAF, Tab 25 at 6. The administrative judge also found that the appellant did not

prove that his race or his 2014 and 2015 equal employment opportunity (EEO)

complaints were motivating factors in his removal. ID at 13-15. 

The appellant has timely filed a petition for review. Petition for Review

(PFR) File, Tab 1. The agency has filed a response to the petition. 2 PFR File,

Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

On review, the appellant does not challenge the administrative judge’s

determination that the agency proved the charge, that the penalty of removal was

reasonable, and that he failed to prove his affirmative defenses of discrimination

2

 The agency has titled its pleading as both a response to the petition for review and a

motion to dismiss. PFR File, Tab 3 at 4. However, the agency did not provide any

argument as to the dismissal of the petition for review. Thus, we discern that its

reference to a motion to dismiss was inadvertent. 

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based on his race and reprisal for filing prior EEO complaints. PFR File, Tab 1

at 5-8. Rather, he only contends that the administrative judge erred in rejecting

his affirmative defense of whistleblower reprisal. Id. Specifically, he alleges that

the Chief of Security Operations and the Commander, the certifying and

reviewing officials for the PRP disqualification, were aware of his “protected

activities” and failed to take action against the individuals who retaliated against

him. Id. at 5.3

We modify the initial decision to properly identify all of the protected activities

and disclosures at issue in this appeal.

In an adverse action appeal such as this, an appellant’s claim of reprisal for

making a disclosure protected under 5 U.S.C. § 2302(b)(8), or in engaging in

activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), is treated as an

affirmative defense.4 Campbell v. Department of the Army, 123 M.S.P.R. 674,

¶ 11 (2016) (analyzing a claim of whistleblower reprisal); Clay v. Department of

the Army, 123 M.S.P.R. 245, ¶ 10 (2016) (analyzing a claim of reprisal for filing

a prior Board appeal). Here, the administrative judge found that the appellant

engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C) when he filed his

OSC complaint in February 2012. ID at 7. We agree. However, the appellant’s

OSC complaint was not the only activity for which he alleged reprisal. He also

raised a claim of reprisal for making disclosures to his supervisors and the OIG in

March 2011. IAF, Tab 9 at 72, Tab 19 at 111, Tab 25 at 6. As to the appellant’s

OIG complaint, it is protected activity under 5 U.S.C. § 2302(b)(9)(C), regardless

of its content. Fisher v. Department of the Interior, 2023 MSPB 11, ¶ 8. As to

3

 The appellant also makes various arguments regarding issues in his other Board

appeals, such as arguments regarding his petition for enforcement in Nevarez v.

Department of the Army, MSPB Docket No. DE-1221-13-0166-C-1. PFR File, Tab 1

at 6. These arguments are not relevant to the instant appeal, and we decline to address

them here. 

4

 When, as here, the protected activity occurred before, and the alleged personnel action

occurred after, the effective date of the Whistleblower Protection Enhancement Act of

2012 (WPEA), the Board applies the WPEA. Pridgen v. Office of Management and

Budget, 2022 MSPB 31, ¶ 51. 

5
the appellant’s disclosure to his supervisors in March 2011, the Board has

previously identified this disclosure as protected, and neither party disputed that

finding. IAF, Tab 19 at 111, Tab 25 at 6; 0166 RO, ¶ 5; 0166 RID at 11. 

For the first time on review, the appellant also appears to make additional

disclosures of wrongdoing, such as the Chief of Security Operations causing

damage to Government vehicles. PFR File, Tab 1 at 5; IAF, Tab 1 at 3, Tab 25

at 6-11. He also raises additional personnel actions, including the agency’s

failure to prevent harassment by the supervisors who retaliated against him. PFR

File, Tab 1 at 5. The Board will not consider arguments raised for the first time

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

previously available despite the party’s due diligence. Banks v. Department of

the Air Force, 4 M.S.P.R. 268, 271 (1980); 5 C.F.R. § 1201.115(d). Here, the

appellant has failed to show that his arguments regarding additional disclosures of

wrongdoing and personnel actions were based on new and material evidence not

previously available despite his due diligence; accordingly, the Board will not

consider these arguments.5 

5

 The appellant also attaches documents for the first time with his petition for review.

PFR File, Tab 1 at 9-18, 25-32. The Board will not consider evidence submitted for

first time with a petition for review absent a showing that it was unavailable before the

record closed despite the party’s due diligence. Avansino v. U.S. Postal Service,

3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115(d). Here, the documents are not new

because they are dated prior to the date of the initial decision. See Alexander v.

Department of Veterans Affairs, 90 M.S.P.R. 591, ¶ 8 (2002) (finding that, documents

that were available before the issuance of the initial decision did not constitute new

evidence). Because the appellant has not shown that the evidence he submitted for the

first time on review was unavailable before the record closed despite his due diligence,

we will not consider it. The appellant resubmits his response to the proposed removal,

which is already part of the record below, and thus is not new. Compare PFR File,

Tab 1 at 19-24, with IAF, Tab 10 at 24-29; see Meier v. Department of the Interior,

3 M.S.P.R. 247, 256 (1980) (finding that evidence that is already a part of the record is

not new). 

6
The appellant met his burden to prove that his protected activities and disclosure

were contributing factors in his disqualification from the PRP.

Next, the appellant must establish by preponderant evidence that he

engaged in protected activity that was a contributing factor in the personnel

action at issue. Elder v. Department of the Air Force, 124 M.S.P.R. 12, ¶ 39

(2016). One way of proving that an appellant’s prior protected activity was a

contributing factor is the knowledge/timing test. Alarid v. Department of the

Army, 122 M.S.P.R. 600, ¶ 13 (2015). This test allows an employee to

demonstrate that his prior protected activity was a contributing factor in the

challenged action by showing that the deciding official knew of the protected

activity and took the personnel action within a period of time such that a

reasonable person could conclude that the protected activity was a contributing

factor in the action. Id. An appellant may also satisfy the knowledge prong of

the knowledge/timing test by proving that the official taking the action had

constructive knowledge of the disclosure, even if he did not have actual

knowledge. Nasuti v. Department of State, 120 M.S.P.R. 588, ¶ 7 (2014). An

appellant may establish constructive knowledge by showing that an individual

with actual knowledge of the disclosure influenced the official accused of taking

the retaliatory action. Id. Once the knowledge/timing test has been met, an

administrative judge must find that the appellant has shown that his

whistleblowing was a contributing factor in the personnel action at issue, even if,

after a complete analysis of all of the evidence, a reasonable factfinder could not

conclude that his whistleblowing was a contributing factor in the personnel

action. Schnell v. Department of the Army, 114 M.S.P.R. 83, ¶ 21 (2010). 

Regarding the knowledge prong of the test, the administrative judge did not

make a finding as to whether the Chief of Security Operations or the Commander,

who recommended and made the decision to permanently disqualify the appellant

from the PRP, were aware of the appellant’s OSC complaint. 6 ID at 12.

6

 The administrative judge did not evaluate contributing factor as to the appellant’s OIG

complaint or March 2011 disclosure because, as discussed above, he failed to identify

7
However, he acknowledged that, at a minimum, the Commander relied on

materials and input from three supervisors that the administrative judge

previously found had some motive to retaliate against the appellant in the context

of his prior IRA appeal. ID at 12; 0166 RID at 16, 18, 23. The administrative

judge found that the “retaliatory actions of the three [prior] supervisors occurred

close enough in time that their continued retaliatory intent can be inferred.” ID

at 12. However, he then found that the Commander “did not greatly rely on

memorandums or other input from the three supervisors in permanently

disqualifying the appellant from the PRP.” Id. (emphasis added). He concluded

that the appellant did not prove that his OSC complaint was a contributing factor

in his disqualification from the PRP. ID at 13. We disagree. 

The appellant made his disclosures to supervisors in March 2011, contacted

the agency OIG the same month, and filed his OSC complaint in February 2012.

IAF, Tab 9 at 68-71; 0166 RID at 3-4, 11. The Chief of Security Operations

temporarily disqualified the appellant from the PRP in May 2013 and

recommended his permanent disqualification in August 2013. IAF, Tab 10

at 34-36, 40. The Commander permanently disqualified the appellant from the

PRP in September 2013. Id. at 33. These personnel actions began within

approximately 2 years of the appellant’s protected disclosure to his supervisors

and filing his OIG and OSC complaints. The Board has found that comparable

periods of time between a protected disclosure and a personnel action can satisfy

the knowledge/timing test. See Agoranos v. Department of Justice, 119 M.S.P.R.

498, ¶¶ 21-23 (2013) (finding that the timing prong of the knowledge/timing test

was met when the first personnel action occurred within 2 years of an appellant’s

disclosure and other personnel actions occurring later were part of a continuum

flowing from the first action). We therefore find that the appellant has satisfied

the knowledge/timing test as to the 2013 PRP disqualification. 

them as a protected activity and protected disclosure.

8
The appellant’s removal, based on his failure to meet a condition of

employment due solely to his permanent disqualification from the PRP, occurred

in 2017. IAF, Tab 10 at 23, 30-31. In his written reply to his proposed removal,

the appellant provided detailed information arguing that his removal was reprisal

for the disclosures he made in March 2011 and his OIG and OSC complaints.

Id. at 24-26. The deciding official indicated that he had received and considered

the information contained in the appellant’s written reply. Id. at 23. Thus, the

deciding official had actual knowledge of the appellant’s protected activities and

disclosure. Further, because the appellant’s removal flowed from the PRP

decision, which was influenced by individuals with a retaliatory motive against

the appellant, both the proposing and deciding officials had constructive

knowledge of the protected activities and disclosure. Nasuti, 120 M.S.P.R. 588,

¶ 7. 

The appellant has also met the timing prong of the knowledge/timing test.

His removal is the culmination of the PRP recommendation and decision, as to

which the timing prong is satisfied. Agoranos, 119 M.S.P.R. 498, ¶¶ 21-23.

As such, we find that the appellant proved by preponderant evidence that his

protected activities of filing OIG and OSC complaints and his March 2011

disclosure were contributing factors in an agency personnel action, his PRP

disqualification and subsequent removal. Thus, we vacate the administrative

judge’s finding that the appellant failed to prove that his whistleblowing activity

was a contributing factor in his disqualification from the PRP and subsequent

removal and remand the issue for further adjudication.

The appeal is remanded to the administrative judge to assess whether the agency

proved that it would have disqualified the appellant from the PRP and removed

him in the absence of his protected activity and disclosures under the clear and

convincing evidence standard.

Once an appellant establishes a prima facie case of whistleblowing, the

burden shifts to the agency to prove by clear and convincing evidence that it

would have taken the same personnel action in the absence of the appellant’s

9
whistleblowing. 5 U.S.C. § 1221(e); see Jenkins v. Environmental Protection

Agency, 118 M.S.P.R. 161, ¶ 16 (2012). In determining whether an agency has

met this burden, the Board will consider the following factors: (1) the strength of

the agency’s evidence in support of its action; (2) the existence and strength of

any motive to retaliate on the part of the agency officials who were involved in

the decision; and (3) any evidence that the agency takes similar actions against

employees who are not whistleblowers but who are otherwise similarly situated.

Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999); see

Whitmore v. Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012)

(recognizing that “[e]vidence only clearly and convincingly supports a conclusion

when it does so in the aggregate considering all the pertinent evidence in the

record, and despite the evidence that fairly detracts from that conclusion”). 

Notwithstanding his determination that the appellant failed prove that his

protected activity of filing an OSC complaint in 2012 was a contributing factor in

his disqualification from the PRP, the administrative judge went on to find that

the agency showed by clear and convincing evidence that it would have taken the

same action in the absence of the appellant’s whistleblowing. ID at 13. The

administrative judge erred in determining whether the agency proved by clear and

convincing evidence that it would have taken the action despite finding that the

appellant did not prove contributing factor. See Scoggins v. Department of the

Army, 123 M.S.P.R. 592, ¶ 28 (2016) (explaining that it was error for an

administrative judge to find the appellant failed to prove his prima facie case of

whistleblower reprisal and nonetheless proceed to find that the agency proved its

affirmative defense). Accordingly, we vacate the administrative judge’s finding

that the agency proved by clear and convincing evidence that it would have

disqualified the appellant from the PRP absent his whistleblowing. 

On remand, the administrative judge should conduct a new Carr factor

analysis and render a conclusion on whether the agency met its burden of proving

by clear and convincing evidence that it would have removed the appellant in the

10
absence of his protected activities and disclosure. See Agoranos, 119 M.S.P.R.

498, ¶¶ 29-33 (ordering the administrative judge to conduct a new Carr factor

analysis on remand due to deficiency in her original analysis). Below, the

administrative judge was overly dismissive of any motive to retaliate by the

Commander and the Chief of Security Operations. ID at 12-13. 

For example, the appellant contended below that the Chief of Security

Operations and the Commander were motivated to retaliate against him because

many of the documents they reviewed and relied upon in recommending and

making the decision to permanently disqualify him from the PRP originated from

the three prior supervisors who were previously found to have a strong motive to

retaliate against him. IAF, Tab 25 at 7-9. The administrative judge failed to

adequately consider in his analysis the effect that the three prior supervisors’

retaliatory motive had upon the Chief of Security Operations and the Commander.

Rather, the administrative judge focused on the fact that the Chief and

Commander arrived after the personnel actions in the prior IRA appeal occurred

and found that the appellant’s arguments were “mere conjecture.” ID at 12-13.

The administrative judge also did not consider in his analysis the strength of the

agency’s evidence in support of its actions. Id. Thus, on remand the

administrative judge must explicitly address all three Carr factors. See, e.g.,

Mithen v. Department of Veterans Affairs, 119 M.S.P.R. 215, ¶¶ 23-24 (2013)

(remanding the case to the administrative judge for an assessment of whether the

agency proved by clear and convincing evidence that it would have taken the

action, including rendering credibility determinations); Massie v. Department of

Transportation, 118 M.S.P.R. 308, ¶¶ 7-8 (2012) (remanding the case for

consideration of the evidence as a whole under Whitmore). 

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ORDER

For the reasons discussed above, we remand this case to the field office for

further adjudication in accordance with this Remand Order. 

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

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