UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2016 MSPB 30

Docket No. CH-1221-15-0517-W-1


### Cleophas Bradley, Jr., Appellant,

v. Department of Ho meland Security, Agency. September 1, 2016

Joyce E. Kitchens, Esqui re, Atlanta, Georgia, for the appellant. Robert Gerleman, Washington, D.C., for the agency.

BEFORE
Susan Tsui Grundmann, Chairman Mark A. Robbins, Member

OPINION AND ORDER
¶1 The appellant has filed a petition for re view of the initial decision, which dismissed his individual right of action (IRA) appeal fo r lack of jurisdiction. For the reasons discussed below, we GRAN T the appellant’s petition for review, REVERSE the initial decision, and REMAND the case to the regional office for further adjudication in accordance with this Order.

BACKGROUND ¶2 The appellant is employe d at the Federal Protec tive Service (FPS or the agency) as a GS-14 Deputy Regional Director for Region 5. Initial Appeal File (IAF), Tab 4 at 16. The appellant filed a previous IRA appeal alleging that he had been retaliated against for making pr otected whistleblowi ng disclosures when2

the agency conducted a series of inves tigations and issued him a letter of counseling. Bradley v. Departmentof Homeland Security , MSPB Docket No. CH-1221-14-0831-W-2, In itial Decision (Feb. 4, 2015). The appellant’s prior IRA appeal was dism issed based on a finding th at he had not made a nonfrivolous allegation that the agency took a personnel action as defined by 5 U.S.C. § 2302 (a)(2). Id. ¶3 The appellant filed the current IRA a ppeal, identifying the same protected disclosures and retaliatory actions, and additionally alleging that he was not selected for the Region 5 Director posit ion in retaliation for whistleblowing disclosures. IAF, Tab 1. The admini strative judge issued a show cause order advising the appellant of th e jurisdictional requirements for an IRA appeal based on retaliation for prot ected disclosures under 5 U.S.C. § 2302 (b)(8). IAF, Tab 3. She directed the ap pellant to identify the protected disc losures and personnel actions that were the subject of his IRA appeal and to present evidence and argument establishing a nonfrivolous allegation of jurisdiction. Id. at 6-7. The administrative judge granted the agency ’s motion to stay discovery pending a ruling on jurisdiction. IAF, Tab 16. ¶4 After considering the part ies’ jurisdictional submis sions, the administrative judge issued a decision, w ithout holding a hearing, fi nding that the appellant failed to make a nonfrivolous allegati on of jurisdiction because he had not nonfrivolously alleged that his disclosure s were a contributi ng factor in the agency’s decision not to sele ct him for the Director positi on. IAF, Tab 19, Initial Decision (ID) at 10-13. Applying the doctrine of collateral estoppel, the administrative judge declined to address the appellant’ s allegations that he was subjected to retaliatory i nvestigations and a retaliat ory letter of counseling because those personnel actions were raised in his prior appeal. ID at 7-10. ¶5 The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The appellant also has filed numerous documents relating to his claims as a supplement to hi s petition for review . PFR File, Tab 2. The agency3

has filed an opposition argui ng that the appellant’s pe tition does not satisfy the criteria for review. PFR File, Tab 4.

ANALYSIS ¶6 The Board has jurisdiction over an IRA appeal based on whistleblower reprisal under the Whistleb lower Protection Act (WPA ) if the appellant has exhausted his administrativ e remedies before the Office of Special Counsel (OSC) and makes nonfrivolous allegations of the following: (1) he engaged in whistleblowing activity by making a protecte d disclosure; and (2) the disclosure was a contributing factor in the agency’s decision to take or fail to take a personnel action. 1 Yunus v. Department of Veterans Affairs , 242 F.3d 1367 , 1371 (Fed. Cir. 2001). A nonfrivolous allegation is an assertion that , if proven, could establish the matter at issue. Lewis v. Department of Defense , 123 M.S.P.R. 255 , ¶ 7 (2016); 5 C.F.R. § 1201.4 (s). Whether allegati ons are nonfrivolous is determined on the basis of the written record. Usharauli v. Department of Health & Human Services , 116 M.S.P.R. 383 , ¶ 19 (2011). Any doubt or ambiguity as to whether the appella nt made nonfrivolous jurisdictional allegations should be resolved in favor of finding jurisdiction. Id. The parties do not dispute, and we fi nd no reason to disturb, the administrative judge’s finding that the appellan t sought corrective acti on from OSC based on his allegation that he was being retaliated against for whis tleblowing disclosures, and he did not receive notice within 120 days that OSC would seek corrective action

1 The Whistleblower Protection Enhancement Ac t (WPEA) clarified, in relevant part, that a disclosure made to a supervisor or to a person who partic ipated in the activity that is the subject of the disclosure, or a disclosure made during the normal course of duties of an employee are not excluded from 5 U.S.C. § 2302 (b)(8). Day v. Department of Homeland Security , 119 M.S.P.R. 589 , ¶¶ 18-26 (2013).4

on his behalf. 2IAF, Tab 1 at 7, 22-24, Tab 4 at 10-41; see 5 U.S.C. § 1214 (a)(3)(B). The appellant nonfrivolously alleged that he made protected disclosures. ¶7 A protected disclosure is a disclosure of inform ation that the appellant reasonably believes evidences any violation of a ny law, rule, or regulation, gross mismanagement, a gross wast e of funds, an abuse of au thority, or a substantial and specific danger to pub lic health or safety. 5 U.S.C. § 2302 (b)(8). At the jurisdictional stage, the appellant only is burdened with making a nonfrivolous allegation that he reasonabl y believed that his disclosu re evidenced one of the circumstances described in 5 U.S.C. § 2302 (b)(8). Schoenig v. Department of
Justice , 120 M.S.P.R. 318 , ¶ 8 (2013). The proper te st for determining whether an employee had a reasonable belief that his disclosures we re protected is whether a disinterested obs erver with knowledge of th e essential facts known to and readily ascertainable by the employee could reasona bly conclude that the disclosure evidenced one of th e circumstances described in 5 U.S.C. § 2302 (b)(8). Schoenig , 120 M.S.P.R. 318 , ¶ 8. ¶8 The administrative judge found that , by a generous reading of the appellant’s OSC complaint, he alleged that he made a pproximately nine protected disclosures betw een March 23 and September 2, 2011. 3 ID at 8. The appellant

2The administrative judge also found that, to the extent that the appellant’s filings before the Board contained additional allege d whistleblowing disclosures that were not included in the complaint to OSC, they c ould not be considered because there was insufficient evidence showing that the ap pellant had exhausted his remedies on those allegations before OSC. ID at 6- 7. We agree with this finding.

3 The administrative judge also found that additional alleged disclosures that occurred after the personnel actions at issue could not have been a contributing factor in those personnel actions. ID at 8 n .2. We find no reason to dist urb this finding on review. See Mason v. Department of Homeland Security , 116 M.S.P.R. 135 , ¶ 27 (2011) (finding that disclosures occurring after the personnel actions at issue could not have been contributing factors in those actions).5

identified ten disclo sures in the complain t he filed with OSC. 4IAF, Tab 4
at 16

‐ 32. The appellant argues that all of the disclosures identified are protected. PFR File, Tab 1 at 4. He also argues that he cannot a ddress the “defic iencies” in the disclosure that the ad ministrative judge found was not protected because she did not state which disclosure she found not protected. Id. at 5. After careful consideration of the appell ant’s OSC complaint, we find that he nonfrivolously alleged that he made the follow ing protected disclosures:
1. An email that the appellant wrote was forwarded by his first-level supervisor to the FPS Director, Deputy Director, and Chief of Staff, in which he reported that ten contract s ecurity officers had not received updated suitability determinati ons in violation of the terms of the contract and FPS policies and procedures, IAF, Tab 4 at 17; 2. On March 30, 2011, the appell ant’s first-level supervisor disclosed to the FPS Deputy Direct or that he and the appellant had determined that 224 contract security offi cers within the Region did not have the appropriate suitability dete rminations and 172 security officers were im properly working on the regional contracts, id. at 18; 3. On May 10 and 18, 2011, the appell ant’s first-leve l supervisor disclosed to the Assistant Director of Field Operati ons that he and the appellant had determined that 224 contract security officers within the Region did not have the appropriate suitability

4He also stated that his witness interv iew with OSC regarding his supervisor’s complaint was a contributing factor in the ag ency’s decision not to select him for the position at issue. IAF, Tab 4 at 32. The appellant was interviewed by OSC on August 9, 2012, and provided OSC w ith documents on October 11, 2012. Id. at 25. The WPEA went into effect later, on December 27, 2012. Miller v. Federal Deposit Insurance Corporation , 122 M.S.P.R. 3 , ¶ 14 (2014), aff’d , 626 F. App’x 261 (Fed. Cir. 2015), cert. denied , 136 S. Ct. 1510 (2016). The IR A appeals rights section of the WPEA as it pertains to the prohibited personnel practices described at 5 U.S.C. § 2302 (b)(9)(B)-(C) does not a pply retroactively. Colbert v. Department of Veterans Affairs , 121 M.S.P.R. 677 , ¶ 7 (2014).6

determinations and 172 security officers were improperly working, id. at 18-19; 5
4. The appellant and his first-level supervisor disclosed to the FPS Director that the March 18, 2011 in cident in which an explosive device passed through building securi ty in Detroit was not solely the responsibility of contractor s, and Federal employees also appeared to have contri buted to the incident, id . at 19-20; 5. The appellant disclosed to an Assistant Gene ral Counsel that the Director of FPS provided false testimony to Congress, id . at 20; and 6. The appellant and his first-leve l supervisor wrote a memorandum for the FPS Director describing the details of the March 18, 2011 incident in which an explosiv e device passed through building security in Detroit, detailing their disclosures concerning the investigation of this incident, and stating the possibility of disciplinary action as a re sult of this incident, id . at 22-23. We find that the appellant nonfrivolously alleged that a reas onable person would have believed that disclosu res (1)-(4) and (6) disclosed a violation of law, rule, or regulation, gross mismanagement, and a s ubstantial and specif ic danger to public health and safety. In addition, we fi nd that the appellant nonfrivolously alleged that a reasonable pe rson would have believed that disclosure (5) disclosed a violation of law, ru le, or regulation. ¶9 For the following reasons, we find that the appellant failed to nonfrivolously allege that he made any othe r protected disclosures. The

5 The appellant describes the alleged May 18 disclosure as a reminder of the May 10 disclosure to the same individual. IAF, Tab 4 at 19. The appellant enumerated them as separate disclosures #3 an d #4 in his complaint. Id . at 18-19. For purposes of our jurisdictional analysis at this stage of th e proceeding, we find that the appellant has made a nonfrivolous allegation that the info rmation disclosed on these dates evidenced a violation of law, rule, or regulation, gr oss mismanagement, and a substantial and specific danger to public health and safety, and that the agency at least perceived the appellant as a whistleblower based on his supervisor’s disclosure of information attributable to the appellant. See, e.g. , Rumsey v. Department of Justice , 120 M.S.P.R. 259 , ¶ 7 (2013) (stating that one who is perceived as a whistleblower is entitled to the protection of the WPA, even if he has not made protected disclosures).7

disclosure the appellant id entified as “disclosure #7” describes a meeting in which he and his supervisor disputed the claims of the FPS Director, Deputy Director, and Assistant Director of Field Op erations that they were not aware that FPS employees were implicated in the inci dent involving an e xplosive device that occurred on March 18, 2011. IAF, Tab 4 at22. The appellan t’s description of this meeting does not include an allegation of a disclosure of information. If, as the appellant alleges, the Director, Deput y Director, and Assi stant Director of Field Operations already kne w that FPS employees were involved in the incident prior to this meeting, then he has not alleged a communication or transmission of information. An alleged disagreementabout what information was known by the attendees, even if proven, could not meet the statutory definition of a “disclosure.” 5 U.S.C. § 2302 (a)(2)(D). ¶10 In the disclosure th at the appellant identified as “disclosure #9,” he alleges that the Assistant Director of Field Op erations ordered him and his first-level supervisor to shut down their inve stigation into whether FPS employees committed misconduct in conne ction with the March 18, 2011 explosive device incident. IAF, Tab 4 at 23. The appellant asserts that , in response, he told the Assistant Director of Fiel d Operations that he “was not the fall guy” and asked the Assistant Director of Field Operati ons to put his directive in writing. Id. The appellant further contends th at his first-level supervisor advised the Director that the instruction to shut down the i nvestigation was “i nappropriate.” Id. The appellant’s description of his statements does not constitute a nonfrivolous allegation of a protected disc losure. In his pleadings, th e appellant asserts that he was told to shut down the investigati on to “cover up” the fact that the FPS Director had provide d false testimony to Congre ss, and that there was “a violation of law, rule or re gulation; substantial[ ,] specific danger to public health or safety, abuse of authority, and gross waste of funds.” Id. at 23, 35. However, he did not allege that he conveyed these concerns to anyone at the time of the events in question. While th e appellant claims that his first-level supervisor told8

the Director that shutting down the investigation was “i nappropriate,” he does not contend that he personall y made such a statement. Thus, the appellant’s description of the incident he identified as disclosure #9 does not constitute a nonfrivolous allegation that he made a protected disclosure within the Board’s jurisdiction. ¶11 The disclosure the appellant identifi ed as “disclosure #10” describes a conference call that he wa s asked to attend “i n silence.” IAF, Tab 4 at 24-25. During the call, other agency managers al legedly discussed th e improper storage of classified mate rials by two FPS employees in Region 5, who had missed required annual training on this topic. Id. There was some discussion about who was responsible for ensuring that the empl oyees were trained, and the appellant allegedly wrote on a note pa d that it was a headquarter s, and not a regional, responsibility. Id. The alleged difference of opi nion concerning a policy, i.e., whether headquarters or the regional offi ce was responsible for ensuring that FPS employees were properly tr ained, is not a nonfrivolous allegation of a protected disclosure. See Webb v. Department of the Interior , 122 M.S.P.R. 248 , ¶ 8 (2015) (stating that, even under the expanded protections afforded to whistleblowers under the WPEA, general philosophical or policy disagreements are not protected unless they separately constitute a protected disclosure of one of the categories of wrongdoing listed in 5 U.S.C. § 2302 (b)(8)(A)). The appellant has made a nonfrivolous al legation that his di sclosures were a contributing factor in his nonselecti on for the Director position. ¶12 The appellant argues that the administ rative judge erred by finding that he had not made a nonfrivolous allegation that his protec ted disclosures were a contributing factor in his nonselection for the Director position. PFR File, Tab 1 at 4-6. The administra tive judge found that the ap pellant had failed to nonfrivolously allege that hi s disclosures were a contri buting factor because he had not satisfied the knowledge/ timing test. ID at 10-13; see 5 U.S.C. § 1221 (e)(1). Specifically, the administ rative judge found that, because the9

members of two panels that reviewed and scored the résumés of applicants for the Director position had no actual knowledge a bout the appellant’s disclosures, the appellant had not met his burden of showing that his disclosures were a contributing factor in the nons elections. ID at 12. Th e appellant argues that the first selection panel’s knowledge is irre levant, given that the first time the vacancy was announced he was referred to the selecting official and interviewed for the position, and the se lecting official had actual knowledge of his protected disclosures. PFR File, Tab 1 at 5. Th e appellant further argues that the second time the position was advertised, the inte rviewer and all of the selection panel members had imputed knowledge about his protected disclosures. Id. ¶13 To satisfy the contributing factor criter ion at the jurisdictional stage of an IRA appeal, the appellant onl y need raise a nonfrivolous allegation that the fact or the content of the protec ted disclosure was one factor that tended to affect the personnel action in any way. Salerno v. Departmen t of the Interior , 123 M.S.P.R. 230 , ¶ 13 (2016). One way to establish this criterion is the knowledge/timing test, under which an employ ee may nonfrivolously allege that the disclosure was a contributing factor in a personnel action through circumstanti al evidence, such as evidence that th e official who took the personnel action knew of the disclosure and that the personnel action occurred w ithin a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action. Id. ¶14 The administrative judge stated that the obvious bar to the appellant’s claims of reprisal is that he has not alleged that th e panel members had actual knowledge of his disclosures. ID at 11 . We do not agree. The language of 5 U.S.C. § 1221 (e)(1) makes clear that the knowledge/timi ng test is not the only way for an appellant to sati sfy the contributing factor st andard, and the legislative history of that statute indi cates that the knowle dge/timing test is but “one of the many possible ways” to satisfy the standard. Powers v. Department of the Navy ,10

69 M.S.P.R. 150 , 156 (1995) (citing S. Rep. No. 622, 103d Cong., 2d Sess. 8 (1994)). ¶15 An appellant can show that a protecte d disclosure was a contributing factor in a personnel action by proving that the official taking the action had constructive knowledge of th e protected disclosure. Aquino v. Department of Homeland Security , 121 M.S.P.R. 35 , ¶ 19 (2014). An appell ant may establish an official’s constructive knowle dge of a protected disclosu re by demonstrating that an individual with actual knowledge of th e disclosure influe nced the official accused of taking the retaliatory action. Id. Lack of knowledge by a single official is not dispositive. Dorney v. Department of the Army , 117 M.S.P.R. 480 , ¶ 12 (2012). Rather, we must determin e whether the agency took a wrongful personnel action against the appellant and whether that action should be corrected. Id. ¶16 The appellant alleges that senior agen cy officials with knowledge about his protected disclosures conspi red with others not to se lect him for the Director position. IAF, Tab 1 at 40-41. At this stage, the appe llant can meet his burden of proof without specifically identifying which mana gement officials were responsible for the reprisal. See Cahill v. Merit Sy stems Protection Board , 821 F.3d 1370 , 1373-75 (Fed. Cir. 2016). The burden to establish jurisdiction is the appellant’s, but, when the personnel action at issue is a nonselection, the evidence concerning who was involved in th e selection process, what they knew about the appellant’s protec ted disclosures, and who ma y have influenced their decision is exclusively within the agency’s possession. See Parker v. Department of Housing & Urban Development , 106 M.S.P.R. 329 , ¶ 9 (2007) (finding discovery appropriate to obt ain materials in the agency’s possession that were potentially relevant to an employment practices claim rega rding a nonselection for a position). The appell ant claims that he was in terviewed for the position by the selecting officials, whil e the agency asserts that th e decision not to select the appellant was made by a panel. Compare IAF, Tab 1 at 39, with IAF, Tab 1011

at 28-29. This factual di spute cannot be resolved in favor of the agency in determining whether the appellant ha s made a nonfrivolous allegation of jurisdiction. Ingram v. Departm ent of the Army , 114 M.S.P.R. 43 , ¶ 10 (2010) (stating that, in assessing whether the appellant has made nonfrivolous allegations, the administrative judge ma y consider the agency’s documentary evidence; however, to the extent the agency’s evid ence constitutes mere factual contradiction of the appe llant’s allegations, the ad ministrative judge may not weigh evidence and resolve conflicting assert ions and the agency’s evidence may not be dispositiv e). The appellant fu rther alleges that he was interviewed for the position by the Deputy Director and Director, two manage rs who were the subject of several of his di sclosures, and was told after the interview that the Director “felt as if [he] di d not have a proper vision to be in the position.” IAF, Tab 4 at 30; PFR File , Tab 1 at 5. ¶17 Given the nature of the personnel action at issue, and reading the appellant’s allegations in context with the entire r ecord, we find that he has nonfrivolously alleged that his whistleb lowing disclosures we re a contributing factor in the agency’s decision not to select him for the Di rector position. ORDER ¶18 For the reasons discussed above, we rema nd this case to th e regional office for further adjudication. On remand, the administrativ e judge shall permit the parties to complete discovery prior to conducting a hearing on the merits.

FOR THE BOARD:

________________ ______________ Jennifer Everling Acting Clerk of the Board Washington, D.C.