UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MEGAN MAYO,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

SF-1221-20-0719-W-1

DATE: April 11, 2024

THIS ORDER IS NONPRECEDENTIAL1

Chalmers Johnson, Esquire, Port Orchard, Washington, for the appellant.

David Thayer, Esquire, and Joshua J. Roever, Esquire, Bremerton, 

Washington, 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

denied her request for corrective action in her individual right of action (IRA)

appeal. For the reasons discussed below, we GRANT the appellant’s petition for

review. We discern no basis for disturbing the findings in the initial decision as

to the identified allegations of reprisal, but we nevertheless find it necessary for

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
the administrative judge to consider an additional allegation of reprisal based on a

perceived whistleblower theory, which was not addressed in the initial decision.

We therefore VACATE the initial decision and REMAND the appeal to the

Western Regional Office for further adjudication in accordance with this Remand

Order.

BACKGROUND

The appellant was appointed to a WG-1 Helper Trainee (Marine Machinery

Mechanic) position at Puget Sound Naval Shipyard on August 6, 2018, subject to

the successful completion of a 2-year probationary period. Initial Appeal File

(IAF), Tab 7 at 33-34. On March 20, 2020, at the beginning of the COVID-19

pandemic, the appellant emailed the Base Commander of the shipyard and a union

representative, requesting that the command start paying the essential employees

hazard or environmental pay in light of the serious and substantial risks they

faced in continuing to report to work. Petition for Review (PFR) File, Tab 1

at 16. Two days later, on March 22, 2020, the appellant emailed a member of

Congress complaining about the lack of safety precautions at the shipyard to

combat the spread of COVID-19, including a lack of hand sanitizer, limited hot

running water, and the inability to social distance while working at the shipyard. 2

IAF, Tab 5 at 15-16. That same day, she posted the contents of the email to the

congressman on her social media page. Id. at 18-19. 

The following day, March 23, 2020, the appellant came to work wearing a

sweatshirt that read “Shipyard before self” on one side, which was a quote of a

statement made by the Base Commander at the 2019 Shipyard Change of

Command Ceremony. Id. at 31. On the other side, the sweatshirt stated, “1 in

5 people between 20-44 will require hospitalization” and “1 in 10 ICU patients

are between the ages of 20-44,” quoting “CDC 2020.” Id. When the appellant

2

 The appellant explained that her previous experience in nursing made her “intimately

familiar” with the “dire warnings” coming from the medical community regarding the

dangers of COVID-19. IAF, Tab 5 at 15.

2
wore the sweatshirt again the next day, her supervisor instructed her to remove it

and she complied, turning the sweatshirt inside out. Id. at 27-28; Hearing Record

(HR) (testimony of the appellant’s supervisor). That day, the appellant emailed

the Shipyard Superintendent regarding the sweatshirt, stating that “[her] hoodie

[was] making a statement about the current pandemic our country and the world

face and how the yard is handling it . . . ” and reiterating her claims regarding the

employees’ entitlement to hazard or environmental pay. IAF, Tab 5 at 27-28.

The appellant also posted a photo of her sweatshirt on her social media page,

explaining that she “made a statement” about the lack of effort by the shipyard in

the face of the pandemic, including, among other things, that she believed the

employees who continued to report should receive hazard or environmental pay.

Id. at 30-31.

The agency conducted a pre-action investigation into the appellant’s action,

i.e., wearing the sweatshirt. IAF, Tab 7 at 29-32. Subsequently, the deciding

official terminated the appellant during her probationary period, effective

March 31, 2020, for failure to demonstrate fitness and qualifications for

continued employment based on a charge of conduct unbecoming a Federal

employee. IAF, Tab 5 at 33-35, 99.

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

alleging that her termination was the result of whistleblower reprisal. IAF, Tab 9

at 5-27. After OSC closed its investigation, the appellant filed an IRA appeal

with the Board, alleging that she was terminated due to her protected disclosures,

specifically: (1) disclosing to management officials that a supervisor had shared

confidential information with her and told her not to tell anyone; (2) wearing a

sweatshirt to work displaying a quote from the Base Commander and facts about

COVID-19; (3) filing a formal complaint with the Occupational Safety and Health

Administration (OSHA) about the lack of adequate safety precautions at the

shipyard against the spread of COVID-19; (4) posting her OSHA complaint on

social media; and (5) writing a letter of complaint to her member of Congress

3
about the lack of precautions being taken at the shipyard to protect workers from

COVID-19.3 IAF, Tab 5 at 5-6. 

After finding jurisdiction over the appeal and holding a hearing on the

merits, the administrative judge issued an initial decision denying the appellant’s

request for corrective action. IAF, Tab 10 at 1-3; Tab 31, Initial Decision (ID).

Specifically, the administrative judge determined that disclosures 1, 2, and 4,

including the sweatshirt disclosure, were not protected, and while the third

disclosure may be protected, the appellant failed to establish that it was a

contributing factor to her termination. ID at 11-15. Additionally, the

administrative judge found that the appellant established that the fifth disclosure,

i.e., the letter to the member of Congress, was protected because it was a

disclosure made to Congress regarding alleged violations of law, rule, regulation,

or a substantial and specific danger to public health and safety. ID at 15. After

finding that the appellant’s protected disclosure was a contributing factor in her

termination, the administrative judge found that the agency had established by

clear and convincing evidence that it would have terminated the appellant absent

the whistleblowing activity. ID at 15-22. Thus, she denied the appellant’s

request for corrective action. ID at 22.

DISCUSSION OF ARGUMENTS ON REVIEW

On review, the appellant argues that the administrative judge erred in

finding that her sweatshirt was not a protected disclosure, asserting that the

agency knew, due to her emails and social media posts, that the sweatshirt was

worn in protest of the lax COVID-19 protections and the lack of hazard and

3

 The appellant asserted that she made a sixth disclosure, i.e., a complaint about safety

to management when she worked on the Sail Team, which was not accepted by the

administrative judge. IAF, Tab 5 at 6, Tab 10 at 2. Although the administrative judge

did not explain why she rejected this disclosure, we surmise that it is because the

appellant failed to show that she exhausted the claim in front of OSC. IAF, Tab 9

at 5-27. Nevertheless, because the appellant did not raise an objection to this exclusion

below or on review, and it appears that she failed to exhaust this disclosure with OSC,

we do not address it further.

4
environmental pay. PFR File, Tab 1 at 8-12. The agency has responded in

opposition to the appellant’s petition for review. PFR File, Tab 3. 

The record supports the administrative judge’s findings, and we discern no

reason to disturb them. However, as discussed below, we find that the appellant

has established jurisdiction over her IRA appeal and we remand accordingly. See

Ney v. Department of Commerce, 115 M.S.P.R. 204, ¶ 7 (2010) (stating that the

Board’s jurisdiction is always before the Board and can be raised by the parties or

sua sponte by the Board at any time).

The Board has jurisdiction over an IRA appeal if the appellant exhausts her

administrative remedies before the Office of Special Counsel (OSC) and makes

nonfrivolous allegations4 that: (1) she 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). 5 U.S.C. §§ 1214(a)(3),

1221(e)(1); Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed.

Cir. 2001). For the first element, engaging in whistleblowing activity by making

a protected disclosure, the Board has found that an individual who is perceived as

a whistleblower is still entitled to the protections of the Whistleblower Protection

Act, even if she has not made protected disclosures. King v. Department of Army,

116 M.S.P.R. 689, ¶ 6 (2011).

The analysis of whether an appellant was actually a whistleblower is

different from the analysis of whether an appellant was perceived as a

whistleblower. In cases falling under the former category, the Board will focus

its analysis on the appellant’s perceptions and the disclosures themselves, i.e.,

whether she reasonably believed that her disclosures evidenced the type of

wrongdoing listed under 5 U.S.C. § 2302(b)(8). Id., ¶ 8. In cases falling under

4

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

issue. 5 C.F.R. § 1201.4(s); see Hessami v. Merit Systems Protection Board, 979 F.3d

1362, 1364, 1369 (Fed. Cir. 2020).

5
the latter category, the Board will focus its analysis on the agency’s perceptions,

i.e., whether the agency officials involved in the personnel actions at issue

believed that the appellant made or intended to make disclosures that evidenced

the type of wrongdoing listed under 5 U.S.C. § 2302(b)(8). Id. In those cases,

the issue of whether the appellant actually made protected disclosures is

immaterial; the issue of whether the agency perceived the appellant as a

whistleblower will essentially stand in for that portion of the Board’s analysis in

both the jurisdictional and merits stages of the appeal. Therefore, to establish

jurisdiction over an IRA appeal alleging that the agency retaliated against an

appellant based on its perception that she was a whistleblower, the appellant must

show that she exhausted her remedies before OSC, and make a nonfrivolous

allegation that the agency perceived her as a whistleblower, and that the agency's

perception was a contributing factor in its decision to take or not take the

personnel action at issue. Id., ¶ 9.

We first find that the appellant exhausted her administrative remedies

before OSC. The Board, in Chambers v. Department of Homeland Security,

2022 MSPB 8, ¶¶ 10-11, clarified the substantive requirements of exhaustion.

The requirements are met when an appellant has provided OSC with a

sufficient basis to pursue an investigation. The Board’s jurisdiction is limited

to those issues that were previously raised with OSC. However, appellants

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

Board than they did to OSC. Id. Appellants may demonstrate exhaustion

through their initial OSC complaint; evidence that they amended the original

complaint, including but not limited to OSC’s determination letter and other

letters from OSC referencing any amended allegations; and their written

responses to OSC referencing the amended allegations. Id.

In her OSC complaint, the appellant alleged that she was terminated for,

among other things, wearing a sweatshirt to work with a quotation from the

6
Shipyard Commander and COVID-19 statistics from the Center for Disease

Control. IAF, Tab 1 at 9, Tab 9 at 13. The appellant alleged in her complaint

that agency officials told her to “take [the sweatshirt] off, change or cover it,”

and that subsequently, the agency investigated her “over the shirt.” IAF, Tab 9

at 13, 15. The appellant further contended in her OSC complaint that the agency

retaliated against her because the CDC statistics displayed on her sweatshirt were

“alarming.” Id. at 15. Under the circumstances, when the appellant has alleged

in her OSC complaint agency reactions and responses to the sweatshirt incident

that occurred prior to the termination, we find that the appellant’s OSC complaint

contained an allegation that she was perceived as a whistleblower. Therefore, the

appellant exhausted her administrative remedies as to this claim.

Next, we find that the appellant made a nonfrivolous allegation that agency

officials involved believed that the appellant made or intended to make

disclosures that evidenced the type of wrongdoing listed under 5 U.S.C.

§ 2302(b)(8). As set forth above, the appellant alleged that, when the appellant

wore the sweatshirt on March 24, 2020, her supervisor instructed her to remove it.

IAF, Tab 5 at 27. On the same date, right after she wore the sweatshirt, the

appellant emailed the Shipyard Superintendent that her sweatshirt was intended to

“mak[e] a statement” regarding “how the yard is handling” the pandemic and

included a direct reference to the lack of hazard or environmental pay. Id.

at 27-28. Thereafter, the agency immediately conducted a pre-action

investigation into the sweatshirt incident. IAF, Tab 7 at 29-32. The deciding

official testified that the sweatshirt “obviously” played a role in the termination

decision. HR (testimony of deciding official). For purposes of our jurisdictional

analysis at this stage in the proceedings, we find that the appellant nonfrivolously

alleged that the agency at least perceived the appellant as a whistleblower given

the nature of the appellant’s sweatshirt disclosure and agency officials’

knowledge of the same. See Bradley v. Department of Homeland Security,

123 M.S.P.R. 547, ¶ 8 n.5 (2016) (finding that the appellant nonfrivolously

7
alleged that the agency perceived him as a whistleblower based on his

supervisor’s disclosure of information attributable to the appellant); Mausser v.

Department of the Army, 63 M.S.P.R. 41, 44 (1994) (determining that the agency

may have perceived the appellant as a whistleblower to the extent that the agency

knew of the list of “waste, fraud, and abuse,” “safety issues,” and violation of

“government regulations” and the appellant’s intention to disclose it); Thompson

v. Farm Credit Administration, 51 M.S.P.R. 569, 581-82 (1991) (determining that

the agency’s Chairman perceived the appellant to be “a dangerous proponent of a

view that could prove embarrassing—possibly evidencing mismanagement and

abuse of discretion”).

Furthermore, we find that the appellant nonfrivolously alleged that the

agency’s perception was a contributing factor in her termination, as agency

officials launched an investigation of the appellant wearing the sweatshirt, IAF,

Tab 7 at 29-32, and she was terminated a week after wearing the sweatshirt, IAF,

Tab 5 at 33-35, 99. Thus, the appellant has met the knowledge/timing test and

satisfies the contributing factor standard. See Salerno v. Department of the

Interior, 123 M.S.P.R. 230, ¶ 13 (2016) (stating that an appellant meets the

contributing factor criterion by meeting the knowledge/timing test). 

Because the appellant has established jurisdiction over this claim, we

remand this matter to the Western Regional Office for further adjudication. The

appellant is entitled to a hearing on the merits to determine if her status as a

perceived whistleblower was a contributing factor in her termination. See Rusin

v. Department of the Treasury, 92 M.S.P.R. 298, ¶ 20 (2002) (stating that, when

the test for establishing the Board’s IRA jurisdiction has been met, the appellant

is entitled to a hearing on the merits of their claim).

8
ORDER

For the reasons discussed above, we remand this case to the Western

Regional Office for further adjudication in accordance with this Remand Order. 5

 

 

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

5

 In the remand initial decision, the administrative judge may reincorporate prior

findings as appropriate, consistent with this Remand Order.

9