UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MICHELLE C. HONSE,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

SF-1221-17-0617-W-1

DATE: December 15, 2023

THIS ORDER IS NONPRECEDENTIAL1

Michelle C. Honse, Anaheim, California, pro se.

Thomas L. Davis, Los Angeles, California, 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

denied her request for corrective action. 2 For the reasons discussed below, we

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

 On May 5, 2020, the appellant filed a motion to withdraw her petition for review.

Petition for Review (PFR) File, Tab 17. However, she did not respond to the Acting

Clerk’s orders to confirm that request, and on July 5, 2022, the Acting Clerk returned

the petition to the Board for consideration. PFR File, Tabs 18-20. The appellant has

since confirmed that she does not intend to withdraw her petition. PFR File, Tab 21. 
GRANT the appellant’s petition for review, AFFIRM the initial decision in part,

VACATE the initial decision in part, and REMAND the case to the Western

Regional Office for further adjudication in accordance with this Remand Order.

As to the appellant’s allegation of reprisal for engaging in activity protected

under 5 U.S.C. § 2302(b)(9)(C), we find that the appellant established jurisdiction

over this claim and remand it for adjudication on the merits. As to the appellant’s

allegation of whistleblower reprisal under 5 U.S.C. § 2302(b)(8), we agree with

the administrative judge’s jurisdictional finding and finding that the appellant

established that she made a protected disclosure; however, we remand this claim

for further consideration of the contributing factor criterion. We also vacate the

administrative judge’s finding that the agency established by clear and convincing

evidence that it would have suspended the appellant absent her protected

disclosures.

BACKGROUND

¶2 The appellant, a Health Technician with the agency’s eye clinic, filed this

individual right of action (IRA) appeal alleging that the agency retaliated against

her for making protected disclosures by suspending her for 7 days effective

June 21, 2015, and by proposing her removal on March 3, 2017. Initial Appeal

File (IAF), Tab 1, Tab 46 at 38, Tab 47 at 8. As a Health Technician in the eye

clinic, the appellant’s responsibilities included ensuring that staff could perform

the competencies for proper cleaning of reusable medical equipment, including a

probe and Prager shells used to measure axial length. IAF, Tab 47 at 68, Tab 50,

Hearing Compact Disc (HCD). The administrative judge found that the appellant

nonfrivolously alleged that she made one protected disclosure on May 6, 2015,

when she disclosed to the former chief of sterile processing that she had concerns

regarding unsafe cleaning or sterilization practices regarding reusable medical

equipment. IAF, Tabs 20, 23. The administrative judge, accordingly, held a

hearing. IAF, Tab 50.

2
¶3 Thereafter, the administrative judge issued an initial decision denying the

appellant corrective action. IAF, Tab 51, Initial Decision (ID). The

administrative judge found that the appellant exhausted her administrative

remedies with regard to her May 6, 2015 disclosure in her March 14, 2017 Office

of Special Counsel (OSC) complaint. ID at 8. Specifically, she found that the

appellant’s complaint stated that, on May 6, 2015, she disclosed to the chief of

sterile processing that she suspected that equipment used in the eye clinic had not

been properly cleaned, and contended that, in retaliation for her disclosure, the

agency suspended her and proposed her removal. 3 ID at 3. The administrative

judge noted that, in response to the Board’s jurisdictional order, the appellant

submitted a copy of a May 11, 2015 complaint she made to the agency’s Office of

Inspector General (OIG) alleging, inter alia, “disregard . . . for working

equipment used in patient care.” ID at 8 n.3. The administrative judge found,

however, that the appellant did not raise her OIG complaint in the OSC

complaint. Id. 

¶4 The administrative judge also found that the appellant established by

preponderant evidence that, because she had a reasonable belief that she had

disclosed a specific danger to public health or safety due to the risk of exposure

to disease by reuse of improperly cleaned medical equipment, her disclosure was

protected. ID at 7. However, the administrative judge found that the appellant

failed to show that her protected disclosure was a contributing factor in her 7 -day

suspension and proposed removal. ID at 8-11. She found that the appellant failed

3

 The appellant also alleged that the agency retaliated against her by suspending her for

14 days in January 2016. IAF, Tab 1. The administrative judge found that the Board

lacks jurisdiction over the 14-day suspension as an IRA appeal because the appellant

elected to grieve that suspension before filing a complaint with OSC. IAF, Tab 20. In

addition, the appellant brought a separate Board appeal concerning the agency’s

decision to remove her from Federal service; the administrative judge reversed her

removal. See Honse v. Department of Veterans Affairs, MSPB Docket No. SF-0752-17-

0400-I-1, Initial Decision (0400 ID) (Sept. 29, 2017). The initial decision became the

final decision of the Board when neither party petitioned for review. 5 C.F.R.

§ 1201.113.

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to establish by preponderant evidence that the official taking the suspension

action was aware of her protected disclosure. Id. Additionally, she found that,

because the proposed removal occurred 22 months after the alleged disclosure, the

appellant failed to establish by preponderant evidence that the proposed removal

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. 

¶5 Even though the administrative judge found that the appellant failed to

prove by preponderant evidence that her disclosure was a contributing factor in

the 7-day suspension and proposed removal, the administrative judge alternatively

found that, even if the appellant proved the knowledge prong of the

knowledge/timing contributing factor analysis as to the suspension, the agency

showed by clear and convincing evidence that it would have suspended the

appellant absent any whistleblowing. ID at 11-16. She denied the appellant’s

request for corrective action. ID at 16.

¶6 In her petition for review, 4 the appellant alleges that the administrative

judge erred in finding that she did not raise the issue of retaliation for filing her

OIG complaint in her OSC complaint. Petition for Review (PFR), Tab 1.

4

 On January 29, 2019, after the record closed on review, the appellant requested leave

to file a copy of the Office of Special Counsel (OSC) file in this case. PFR File, Tab 4.

The Acting Clerk of the Board granted the appellant’s request and the appellant filed a

response. PFR File, Tabs 15-16. We have considered the appellant’s response in

reaching our determination that remand is appropriate under the circumstances of this

case. 

On August 6, 2020, the appellant filed a second motion to file additional evidence. PFR

File, Tab 13. In her August 6, 2020 motion, the appellant requests leave to submit an

order from the Court of Appeals for the Ninth Circuit and documentation from the

Department of Labor relating to her separate removal appeal. The appellant also

requests leave to submit copies of an email exchange between herself and agency

counsel, which the appellant alleges reflects her interest in a global settlement. The

appellant’s removal is not one of the personnel actions in the instant appeal and the

appellant has not explained how the evidence she seeks to submit is material to any of

the dispositive issues in this IRA appeal. Thus, we deny the appellant’s motion. See

5 C.F.R. § 1201.114(k) (stating that, once the record closes, no additional material will

be accepted unless it is new and material).

4
Additionally, the appellant alleges that her representative did not conduct the

hearing thoroughly.5 Id. 

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant established jurisdiction over her allegation that the agency

retaliated against her for filing a complaint with OIG, and we remand the appeal

for further adjudication on this claim.

¶7 To establish jurisdiction in an IRA appeal, an appellant generally must show

by preponderant evidence that she exhausted her administrative remedies before

OSC and make nonfrivolous allegations that (1) she made a disclosure described

under 5 U.S.C. § 2302(b)(8) or engaged in a 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). 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. For the

reasons below, we find that the appellant established jurisdiction over her

allegation that the agency retaliated against her for filing an OIG complaint, and

we remand the appeal for further adjudication on this claim. 

¶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). An appellant may

demonstrate exhaustion of her OSC remedies through her initial OSC complaint

and other written correspondence to and from OSC concerning her allegations.

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

5

 In her petition for review, the appellant also appears to allege that the agency is not in

compliance with the decision reversing her removal. Id. Such matters are outside the

scope of this appeal. Additionally, the initial decision reversing the appellant’s removal

informed her that, if she believed that the agency has not fully complied with the

Board’s reinstatement order, she may enforce the Board’s decision by filing a petition

for enforcement. 0400 ID at 18 (Sept. 29, 2017).

5
forth above, the administrative judge found that the appellant exhausted her

administrative remedies with regard to her May 6, 2015 disclosure in her

March 14, 2017 OSC complaint. ID at 8. The administrative judge found,

however, that the appellant failed to exhaust her allegation that the agency

retaliated against her for filing a complaint with the OIG. ID at 8 n.3. We

disagree.

¶9 In reaching this finding, the administrative judge noted that the appellant

did not raise her OIG complaint in her OSC complaint. However, in her

March 14, 2017 OSC complaint, which the appellant submitted both below and on

review, the appellant alleges that the retaliating official had “documented

evidence [the appellant] presented that [she] had contacted OIG.” IAF, Tab 17

at 10; PFR File, Tab 16 at 1. Under the broadly worded provision of 5 U.S.C.

§ 2302(b)(9)(C), disclosing information to an agency’s OIG 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.” We

therefore find that, contrary to the administrative judge’s finding, the appellant

exhausted her administrative remedies regarding her allegation that she was

retaliated against for filing a complaint with OIG. 

¶10 We also find that the appellant nonfrivolously alleged that her OIG

complaint was a contributing factor in the personnel actions at issue. 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, which is known as the

“knowledge/timing” test. See 5 U.S.C. § 1221(e)(1); Carney v. Department of

Veterans Affairs, 121 M.S.P.R. 446, ¶ 7 (2014). Here, the appellant alleges in her

OSC complaint that a retaliating agency official had knowledge of her OIG

complaint. IAF, Tab 17 at 10. While the appellant does not specify when the

6
agency official allegedly gained such knowledge, she submitted a copy of her

OIG complaint. The OIG complaint is dated May 11, 2015—within 2 years of the

June 21, 2015 seven-day suspension and March 3, 2017 proposed removal. IAF,

Tab 5 at 11-12; 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 an

appellant’s disclosure satisfied the knowledge/timing test). Thus, we remand the

appellant’s claim that the agency retaliated against her for her OIG complaint to

the regional office for further adjudication, including a hearing on this allegation.

Further adjudication is required to determine whether the appellant’s protected

disclosure was a contributing factor in a personnel action.

¶11 As noted above, the administrative judge found that the appellant

established jurisdiction with respect to her claim of retaliation for protected

disclosures under 5 U.S.C. § 2302(b)(8). Once an appellant establishes

jurisdiction over her IRA appeal, she is entitled to a hearing on the merits of her

claim, which she must prove by preponderant evidence. Rebstock Consolidation

v. Department of Homeland Security, 122 M.S.P.R. 661, ¶ 9 (2015). Specifically,

the appellant must establish a prima facie case of whistleblower retaliation by

proving by preponderant evidence that she made a protected disclosure or

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

taken against her. 5 U.S.C. § 1221(e)(1); Lu v. Department of Homeland

Security, 122 M.S.P.R. 335, ¶ 7 (2015). If the appellant makes out a prima facie

case, the agency will be given the opportunity to prove, by clear and convincing

evidence, that it would have taken the same personnel action in the absence of the

protected disclosure. 5 U.S.C. § 1221(e)(1)-(2); Lu, 122 M.S.P.R. 335, ¶ 7. 

¶12 We discern no error in the administrative judge’s finding that the appellant

made a protected disclosure under 5 U.S.C. § 2302(b)(8).6 However, for the

6

 In 2012, Congress passed the Whistleblower Protection Enhancement Act, Pub. L.

No. 112-199, 126 Stat. 1465, (WPEA) amending the WPA to, in part, reiterate that the

Act protects “any disclosure” of conduct described in 5 U.S.C. § 2302(b)(8), including

any such disclosure made in the normal course of an employee’s duties. 5 U.S.C.

7
reasons discussed below, we find that the administrative judge did not correctly

analyze whether the appellant established that her protected disclosure was a

contributing factor in the contested personnel actions, i.e., her 7-day suspension

and proposed removal. 

¶13 One way to establish the contributing factor criterion is through the

knowledge/timing test, under which an employee may prove that the disclosure

was a contributing factor in a personnel action through preponderant 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. See Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 10

(2013). Here, the administrative was mistaken in finding that the time period of

22 months between the appellant’s disclosure and the proposed removal was too

long to satisfy the timing component of the test. See Scoggins, 123 M.S.P.R. 592,

¶ 25. Nonetheless, we discern no basis for disturbing the administrative judge’s

finding that the appellant failed to establish that the responsible agency officials

§ 2302(f)(2) (2013); S. Rep. No. 112-155, at 5. In a subsequent case, the Board found

that the WPEA amendments to 5 U.S.C. § 2302(f)(2) required a heightened evidentiary

burden for appellants who made disclosures in the normal course of their duties.

Benton-Flores v. Department of Defense, 121 M.S.P.R. 428, ¶ 15 (2014). Citing the

Senate Report for the WPEA, the Board found that such disclosures provide a basis for

a section 2302(b)(8) claim only if the employee proves the agency took the personnel

action “with an improper retaliatory motive.” Id. (citing S. Rep. No. 112-155, at 5-6

(2012), reprinted in 2012 U.S.C.C.A.N. 589, 593-94). However, in December 2017,

Congress passed and the President signed the National Defense Authorization Act for

Fiscal Year 2018 (NDAA). The NDAA amended 5 U.S.C. § 2302(f)(2) to provide that

the higher burden of proof applies only to disclosures “made during the normal course

of duties of an employee, the principal job function of whom is to regularly investigate

and disclose wrongdoing.” Pub. L. No. 115-91, § 1097(c)(1)(B)(ii), 131 Stat. 1283,

1618 (2017). While the events relevant to this appeal took place before the NDAA’s

enactment, the Board has since determined that the new statutory provision applies

retroactively. Salazar v. Department of Veterans Affairs, 2022 MSPB 42, ¶ 21. As

there is nothing in the record to suggest that the appellant’s principal job function was

to regularly investigate and disclose wrongdoing, we find that her disclosures were not

subject to a higher burden of proof under 5 U.S.C. § 2302(f), even if they were made

during the normal course of her duties. See Salazar, 2022 MSPB 42, ¶ 22. 

8
had knowledge of the appellant’s disclosure. Thus, we agree with the

administrative judge that, with regard to her protected disclosure, the appellant

failed to establish the contributing factor standard under the knowledge/timing

test. 

¶14 However, the knowledge/timing test is not the only way for an appellant to

satisfy the contributing factor standard. Dorney v. Department of the Army,

117 M.S.P.R. 480, ¶ 14 (2012). If an administrative judge determines that an

appellant has failed to satisfy the knowledge/timing test, she should consider

other evidence, such as: (1) evidence pertaining to the strength or weakness of

the agency’s reasons for taking the personnel action; (2) whether the

whistleblowing was personally directed at the proposing or deciding officials; and

(3) whether these individuals had a desire or motive to retaliate against the

appellant. Id. Any weight given to the whistleblowing disclosure, either alone or

in combination with other factors, can satisfy the contributing factor standard. Id.

¶15 Upon finding that the appellant did not meet the contributing factor standard

under the knowledge/timing test, the administrative judge should have proceeded

to address the Dorney factors as discussed above. We further note that the first

Dorney factor, i.e., evidence pertaining to the strength or weakness of the

agency’s reasons for taking the personnel action, may be of particular importance

in this case given the agency’s failure to prove any of the charges underlying the

appellant’s proposed removal. See Honse v. Department of Veterans Affairs,

MSPB Docket No. SF-0752-17-0400-I-1, Initial Decision (Sept. 29, 2017; finality

date November 3, 2017). Accordingly, on remand, the administrative judge

should reassess whether, in light of the Dorney factors, the appellant established

by preponderant evidence that her protected disclosure was a contributing factor

in either or both of the contested personnel actions. While we do not anticipate

that this issue will itself require further development of the record, the

administrative judge should nonetheless consider any relevant evidence that may

arise during the additional proceedings regarding the appellant’s OIG complaint.

9
We vacate the administrative judge’s alternative finding that the agency proved

by clear and convincing evidence that it would have imposed a 7-day suspension

in the absence of the appellant’s whistleblowing.

¶16 As noted, only if the appellant establishes a prima facie case of retaliation

for whistleblowing does the burden shift to the agency to prove by clear and

convincing evidence that it would have taken the personal action absent the

appellant’s protected activity. Lu, 122 M.S.P.R. 335, ¶ 7. Here, however, having

determined that the appellant did not establish a prima facie case of retaliation,

the administrative judge considered whether the agency met its clear and

convincing evidence burden with regard to the 7-day suspension. This was error.

See Scoggins, 123 M.S.P.R. 592, ¶ 28. Accordingly, we vacate that portion of the

initial decision finding that the agency proved by clear and convincing evidence

that it would have suspended the appellant for 7 days absent her protected

disclosure. 

The appellant’s allegation of error by her attorney provides no basis to grant the

petition for review.

¶17 The appellant’s claim of inadequate representation does not constitute a

basis for reversing the initial decision. Sparks v. Department of the Interior,

62 M.S.P.R. 369, 371 (1994). Even if true that her representative did not conduct

the hearing thoroughly, the presence of inadequate counsel is not a basis for

reversal. The appellant is held responsible for the action or inaction of her

counsel. See Sofio v. Internal Revenue Service, 7 M.S.P.R. 667, 670 (1981)

(finding that the appellant is responsible for the errors of his chosen

representative).

10
ORDER

¶18 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: ______________________________

Jennifer Everling

Washington, D.C.

11