UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

2010 MSPB 62 

Docket No. AT-1221-09-0670-W-1 

Delvin L. Baldwin, 

Appellant, 

v. 

Department of Veterans Affairs, 

Agency. 

April 12, 2010 

Delvin L. Baldwin, North Charleston, South Carolina, pro se. 

Edith W. Lewis, Esquire, Columbia, South Carolina, for the agency. 

BEFORE 

Susan Tsui Grundmann, Chairman 

Anne M. Wagner, Vice Chairman 

Mary M. Rose, Member 

OPINION AND ORDER

¶1 The appellant has filed a petition for review (PFR) of an initial decision 

(ID) that dismissed his individual right of action (IRA) appeal for lack of 

jurisdiction. For the reasons set forth below, we GRANT the PFR; AFFIRM the 

initial decision in part; REVERSE the initial decision in part; and REMAND this 

appeal to the Atlanta Regional Office for further adjudication consistent with this 

Opinion and Order. 
2

BACKGROUND

¶2 On October 12, 2008, the agency appointed the appellant to a careerconditional, competitive service position as a Materials Handler with the 

Veterans Affairs Consolidated Mail Outpatient Pharmacy (CMOP) in North 

Charleston, South Carolina, subject to a 1-year probationary period. Initial 

Appeal File (IAF), Tab 12, subtab 4s at 1. Effective April 21, 2009, the agency 

terminated the appellant for performance and conduct issues. Id., subtab 4f. 

¶3 The appellant filed a Board appeal seeking corrective action, alleging that 

the agency terminated him during his probationary period in reprisal for making 

the following disclosures protected by the Whistleblower Protection Act (WPA): 

(1) two co-workers repeatedly threatened to physically harm him (physical 

violence disclosure); (2) Cindy Spicer, the Production Supervisor, violated his 

First Amendment rights when he challenged her instructions (First Amendment 

disclosure); and (3) Ms. Spicer undermined instructions that the appellant 

received from Ronald Boneberg, the Director of CMOP, and Deputy Director 

Dena Wolforth regarding his receiving duties (undermining or thwarting 

instructions disclosure). IAF, Tab 1 at 9-28. He requested a hearing. Id. at 2, 

Tab 4 at 4. 

¶4 The administrative judge issued a jurisdictional show cause order that 

apprised the appellant of his burden to establish jurisdiction over his IRA appeal, 

and ordered him to present evidence and argument on the jurisdictional issue. 

IAF, Tab 5. The appellant responded, asserting two additional disclosures that he 

allegedly made to Ms. Wolforth about Ms. Spicer: that Ms. Spicer violated 5 

U.S.C. § 2302(b)(1)-(b)(12) when she made employment recommendations based 

on factors other than her personal knowledge or records of job-related abilities or 

characteristics (employment recommendations disclosure); and that her directives 

destabilized CMOP’s objectives (destabilization disclosure). IAF, Tab 6 at 7-9. 

He further alleged that he exhausted his administrative remedies before the Office 

of Special Counsel (OSC), and that his protected disclosures were a contributing 
3

factor in his termination. Id. at 4-30. The agency later submitted its file. IAF, 

Tab 12. 

¶5 Without holding the requested hearing, the administrative judge issued an 

initial decision dismissing the IRA appeal for lack of jurisdiction based on the 

following findings: (1) the appellant did not exhaust his OSC remedies with 

respect to his employment recommendations, destabilization, and undermining or 

thwarting instructions disclosures; and (2) although the appellant exhausted his 

OSC remedies regarding his First Amendment and physical violence disclosures, 

neither disclosure is protected under 5 U.S.C. § 2302(b)(8); the physical violence 

disclosure is protected under 5 U.S.C. § 2302(b)(9). See ID at 1-5. The appellant 

has filed a PFR of this decision. PFR File, Tab 1. The agency has responded in 

opposition. PFR File, Tab 3. 

ANALYSIS

The administrative judge erred in dismissing the IRA appeal for lack of 

jurisdiction. 

¶6 The Board has jurisdiction over an IRA appeal if the appellant has 

exhausted his administrative remedies before OSC, and makes nonfrivolous 

allegations that: (1) he engaged in whistleblowing activity by making a protected 

disclosure; and (2) the disclosure was a contributing factor in the agency's 

decision to take or fail to take a personnel action. Yunus v. Department of 

Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001); Rusin v. Department of 

the Treasury, 92 M.S.P.R. 298, ¶ 12 (2002). In cases involving multiple alleged 

protected disclosures and multiple alleged personnel actions, an appellant 

establishes the Board's jurisdiction over his IRA appeal when he makes a 

nonfrivolous allegation that at least one alleged personnel action was taken in 

reprisal for at least one alleged protected disclosure. Groseclose v. Department 

of the Navy, 111 M.S.P.R. 194, ¶ 15 (2009). If the appellant successfully 

establishes jurisdiction, the Board then conducts a hearing on the merits. Kahn v. 
4

Department of Justice, 528 F.3d 1336, 1341 (Fed. Cir. 2008); Iyer v. Department 

of the Treasury, 95 M.S.P.R. 239, ¶ 6 (2003), aff’d, 104 F. App’x 159 (Fed. Cir. 

2004). 

¶7 On review, the appellant challenges the administrative judge’s findings and 

alleges that: (1) he nonfrivolously alleged jurisdiction over his IRA appeal; 

(2) the administrative judge erroneously analyzed the appellant’s physical 

violence disclosure under 5 U.S.C. § 2302(b)(9) instead of under subsection 

(b)(8); and (3) he is entitled to a hearing. PFR File, Tab 1 at 5-7. 

1. The appellant exhausted his OSC remedies as to all his alleged disclosures.

¶8 Under 5 U.S.C. § 1214(a)(3), an employee is required to seek corrective 

action from the OSC before seeking corrective action from the Board. Briley v. 

National Archives & Records Administration, 236 F.3d 1373, 1377 (Fed. Cir. 

2001); Coufal v. Department of Justice, 98 M.S.P.R. 31, ¶ 14 (2004). The Board 

may only consider charges of whistleblowing that the appellant raised before 

OSC. Ellison v. Merit Systems Protection Board, 7 F.3d 1031, 1036 (Fed. Cir. 

1993); Coufal, 98 M.S.P.R. 31, ¶¶ 14, 18. To satisfy the exhaustion requirement, 

the appellant must inform OSC of the precise ground of his charge of 

whistleblowing, giving OSC a sufficient basis to pursue an investigation that 

might lead to corrective action. Ellison, 7 F.3d at 1036; Coufal, 98 M.S.P.R. 31, 

¶ 14. An appellant may demonstrate exhaustion of his OSC remedies through his 

initial OSC complaint, and evidence that he amended or supplemented his initial 

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

other letters from OSC referencing the appellant’s amended allegations, and the 

appellant’s written responses to OSC referencing OSC’s discussion of the 

amended allegations. See Pasley v. Department of the Treasury, 109 M.S.P.R. 

105, ¶¶ 12-15 (2008); Kinsey v. Department of the Navy, 107 M.S.P.R. 426, ¶ 15 

(2007). 

¶9 Here, the administrative judge determined that the appellant exhausted his 

OSC remedies regarding his First Amendment and physical violence disclosures. 
5

See ID at 4. Based on our review of the record, we discern no reason to disturb 

these findings, and therefore AFFIRM them. See IAF, Tab 1 at 5-7, Tab 6 at 15, 

20-25, 29. 

¶10 The administrative judge also determined that, because there was no 

mention of any of the other 3 alleged disclosures in OSC’s 2009 termination 

letter, the appellant failed to exhaust his OSC remedies with respect to these 

alleged disclosures. The administrative judge determined that as a result these 

disclosures could not be considered. ID at 2-4. On review, the appellant argues 

that OSC considered his December 8, 2008 letter, which set forth the 3 abovereferenced disclosures and, thus, the administrative judge erred in finding that he 

failed to exhaust his OSC remedies. PFR File, Tab 1 at 5, 10-12. We agree. 

¶11 The May 12, 2009 OSC determination letter does not enumerate these 3 

disclosures; however, it plainly states that among other things, OSC considered 

the appellant’s December 8, 2008 letter to Ms. Wolforth, reporting Ms. Spicer’s 

alleged violations of the law, gross mismanagement and/or abuse of authority. 1

 

IAF, Tab 1 at 6; see Pasley, 109 M.S.P.R. 105, ¶¶ 13-15. In the December 8, 

2008 letter, the appellant alleged in part that: (1) Ms. Spicer “went to great 

lengths to thwart” his orders from Mr. Boneberg and Ms. Wolforth; (2) Ms. 

Spicer violated 5 U.S.C. § 2302(b)(1)-(b)(12) when she “[s]olicit[ed] or 

consider[ed] employment recommendations based on factors other than personal 

knowledge or records of job-related abilities or characteristics”; and (3) Ms. 

Spicer’s directives “destabilize[d] [the] National overall objective of instituting 

Material Handlers to its CMOP locations.” IAF, Tab 6 at 14, 16, 19, Tab 12, 

subtab 4p at 1, 3, 6. Thus, the appellant raised the undermining or thwarting 

 

1

 We note that OSC characterized the appellant’s disclosures as allegations of violations 

of law, gross mismanagement and abuse of authority. IAF, Tab 1 at 6. Other than Ms. 

Spicer’s alleged violation of 5 U.S.C. § 2302(b)(1)-(b)(12), the appellant’s December 8 

letter did not characterize the nature of his allegations of wrongdoing. See IAF, Tab 12, 

subtab 4p. 
6

instructions, destabilization, and employment recommendations disclosures 

before OSC, and ultimately, OSC closed its investigation and notified the 

appellant of his right to seek corrective action with the Board. IAF, Tab 6 at 20-

21. Based on the foregoing, we find that the appellant proved he exhausted his 

OSC remedies concerning his undermining or thwarting instructions, employment 

recommendations, and destabilization disclosures. We therefore REVERSE the 

part of the initial decision finding that the appellant failed to exhaust his OSC 

remedies concerning these three disclosures. 

2. The appellant failed to nonfrivolously allege that his First Amendment, 

thwarting orders, destabilization, and employment recommendations disclosures

were protected.

¶12 Once the appellant has proven that he exhausted his OSC remedies, the next 

jurisdictional inquiry in an IRA appeal is whether he has nonfrivolously alleged 

that he made one or more protected disclosures. See Groseclose, 111 M.S.P.R. 

194, ¶ 22 (citing Grubb v. Department of the Interior, 96 M.S.P.R. 377, ¶ 11 

(2004)). Protected whistleblowing takes place where an appellant made 

disclosures that he reasonably believed 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. 5 U.S.C. 

§ 2302(b)(8); Groseclose, 111 M.S.P.R. 194, ¶ 22 (citing Grubb, 96 M.S.P.R. 

377, ¶ 11). Under the WPA, the employee is not required to identify the 

particular statutory or regulatory provision that the agency allegedly violated 

where his statements and circumstances of those statements clearly implicate an 

identifiable law, rule or regulation; he is only burdened with making a 

nonfrivolous allegation that he reasonably believed that his disclosure evidenced 

one of the circumstances described at 5 U.S.C. § 2302(b)(8). Schneider v. 

Department of Homeland Security, 98 M.S.P.R. 377, ¶ 13 (2005). The question is 

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

and readily ascertainable by the employee could reasonably conclude that the 
7

actions evidenced a violation of a law, rule, or regulation, or one of the other 

conditions set out in 5 U.S.C. § 2302(b)(8). Groseclose, 111 M.S.P.R. 194, ¶ 22 

(citing Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999)). 

a. First Amendment disclosure 

¶13 The appellant does not challenge the administrative judge’s findings that he 

failed to nonfrivolously allege that he reasonably believed Ms. Spicer’s telling 

him, “[w]atch your tone young man,” 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, and therefore the 

disclosure is not protected. See PFR File, Tab 1; ID at 4; 5 U.S.C. § 2302(b)(8); 

Groseclose, 111 M.S.P.R. 194, ¶ 22; IAF, Tab 1 at 7. We discern no reason to 

disturb these findings, and therefore AFFIRM them. 

b. thwarting orders, destabilization, and employment recommendations 

disclosures 

¶14 On review, the appellant argues that he reasonably believed that his 

thwarting orders, destabilization, and employment recommendations disclosures 

are protected by the WPA. PFR File, Tab 1 at 7. We disagree. With respect to 

the employment recommendations disclosure, the appellant vaguely alleged that 

upon recommendations by other personnel staff, Ms. Spicer held a meeting with 

him and other co-workers to discuss handling duties, and recited almost verbatim 

the statutory language at 5 U.S.C. § 2302(b)(2), i.e., that it is a prohibited 

personnel practice to “[s]olicit or consider employment recommendations based 

on factors other than personal knowledge or records of job-related abilities or 

characteristics.” IAF, Tab 6 at 15-16. The Board has held that allegations of 

violations of 5 U.S.C. § 2302(b)(2) and related provisions of law can sometimes 

constitute whistleblowing. See McDonnell v. Department of Agriculture, 108 

M.S.P.R. 443, ¶¶ 9-13 (2008) (subsections (b)(2), (b)(6), and (b)(10)); Luecht v. 

Department of the Navy, 87 M.S.P.R. 297, ¶ 14 ((2000) (subsections (b)(1), 

(b)(6), and (b)(11)). Here, however, while citing the language of § 2302(b)(2), 
8

the appellant has failed to adduce any facts that would constitute a nonfrivolous 

allegation of a violation of this provision. Thus, the appellant has not made a 

nonfrivolous allegation of a whistleblowing disclosure in this regard. 

¶15 With respect to the thwarting orders and destabilization disclosures, the 

appellant has failed to make a nonfrivolous allegation that he reasonably believed 

that Ms. Spicer’s alleged attempts to thwart the appellant’s orders from the 

Director and Deputy Director of CMOP, and the alleged destabilizing effect of 

Ms. Spicer’s actions and orders on the agency’s objectives, evidenced a violation 

of law, rule, or regulation, or one of the other conditions enumerated in 5 U.S.C. 

§ 2302(b)(8). See IAF, Tab 6 at 14, 19. The appellant has not identified any law, 

rule or regulation that was violated, and none is apparent. Further, these alleged 

protected disclosures fail to evidence an abuse of authority or gross 

mismanagement. See Wheeler v. Department of Veterans Affairs, 88 M.S.P.R. 

236, ¶ 13 (2001) (an abuse of authority occurs when there is an arbitrary or 

capricious exercise of power by a federal official or employee that adversely 

affects the rights of any person or that results in personal gain or advantage to 

himself or to preferred other persons); White v. Department of the Air Force, 63 

M.S.P.R. 90, 95 (1994) (gross mismanagement means a management action or 

inaction which creates a substantial risk of significant adverse impact upon the 

agency's ability to accomplish its mission). Consequently, the appellant has not 

nonfrivolously alleged that either of these disclosures is protected by the WPA. 

3. The appellant nonfrivolously alleged whistleblower reprisal with respect to his 

physical violence disclosure.

a. protected disclosure 

¶16 The appellant disclosed three separate incidents where his co-workers 

threatened to physically harm him, two involving blatant verbal threats, and one 

where his co-worker waved a box cutter at him in a threatening manner. IAF, 

Tab 6 at 22-29, Tab 12, subtabs 4b, 4l, 4m. He alleged that in reprisal for 

reporting these threats of physical violence, the agency decided to terminate him. 
9

IAF, Tab 1 at 5-6, 17-18, Tab 12, subtab 4(b) at 1-3, subtab 4(f). The 

administrative judge determined that this allegation merely represented reprisal 

“‘based upon exercising his right to complain’ rather than upon ‘reprisal based on 

disclosure of information.’ . . . Accordingly, [he found] that these allegations are 

protected under 5 U.S.C. § 2302(b)(9), not 5 U.S.C. § 2302(b)(8).” ID at 4. On 

review, the appellant argues that the administrative judge erroneously analyzed 

this disclosure under 5 U.S.C. § 2302(b)(9) instead of under subsection (b)(8), 

and that he made a protected disclosure, as these threats of physical violence 

violated law, rule and regulation. PFR File, Tab 1 at 5-6; see ID at 4-5. 

¶17 We find that the administrative judge erred in finding, based upon the 

current record, that these allegations were protected under 5 U.S.C. 

§ 2302(b)(9)(A), and not under section 2302(b)(8). The appellant alleged below 

that he immediately reported threats of physical violence by 2 co-workers to 

agency management and an investigation followed in which he provided written 

statements. IAF, Tab 7 at 4-5. In its jurisdictional response, the agency asserted 

that the appellant “documented two unpleasant co-worker interactions,” but did 

not state that the appellant’s disclosures were made in the course of the 

negotiated grievance procedure. IAF, Tab 12 at Subtab 1. While the record also 

reflects that a union representative became involved in discussing workplace 

conditions in the appellant’s duty section, the union’s role did not convert the 

appellant’s alleged disclosures into a formal grievance or other complaint covered 

by section 2302(b)(9). Thus, under the above circumstances, we conclude that 

the appellant made a non-frivolous allegation that his complaints were disclosures 

of information outside the grievance procedure that he could reasonably believe 

constituted violations of the law within section 2302(b)(8). 

¶18 The appellant’s disclosure clearly implies that he feared his co-worker was 

trying to physically injure or attack him when his co-worker waved a box cutter 

at him. Because the inquiry is whether a disinterested observer with knowledge 

of the essential facts known to and readily ascertainable by the employee could 
10

reasonably conclude that the actions evidenced a violation of law, Groseclose, 

111 M.S.P.R. 194, ¶ 22, we consider concepts of criminal law from a layman’s 

perspective as well as in a legal sense. 

¶19 The lay definition of an “assault” is “a threat or attempt to inflict offensive 

physical contact or bodily harm on a person (as by lifting a fist in a threatening 

manner) that puts the person in immediate danger of or in apprehension of such 

harm or contact.” See http://www.merriam-webster.com/dictionary/assault. A 

legal dictionary similarly defines an “assault” as: 

1. Criminal & tort law. The threat or use of force on another that 

causes that person to have a reasonable apprehension of imminent 

harm or offensive contact; the act of putting another person in 

reasonable fear or apprehension of an immediate battery by means of 

an act amounting to an attempt or threat to commit a battery. 

2. Criminal law. An attempt to commit battery, requiring the 

specific intent to cause physical injury. — Also termed (in senses 1 

and 2) simple assault. 

. . . 

Black’s Law Dictionary 109 (7th deluxe ed. 1999). The definition of an 

“aggravated assault” is a “[c]riminal assault accompanied by circumstances that 

make it more severe, such as the use of a deadly weapon, the intent to commit 

another crime, or the intent to cause serious bodily harm.” Id. 

¶20 In South Carolina,2

 common law assault constitutes “‘an attempted battery’ 

or an unlawful attempt or offer to commit a violent injury upon another person, 

coupled with the present ability to complete the attempt or offer by a battery.” 

State v. Sutton, 340 S.C. 393, 532 S.E.2d 283, 285 (2000). The court observed 

that the “intentional creation of apprehension of immediate bodily harm type of 

assault has been specifically adopted as a definition of criminal assault by most 

jurisdictions.” Id. at 286. 

 

2

 The appellant alleged that his co-worker threatened him with a box cutter while he 

was working at CMOP, which is located in North Charleston, South Carolina. IAF, Tab 

6 at 22, 24. Therefore, South Carolina law should be applied in this appeal. 
11

¶21 A box cutter, by its very nature, is a knife with a sharp blade used to cut, 

and therefore may reasonably be construed as a deadly weapon depending upon 

the circumstances. Waving a box cutter at another person implies a threat of 

immediate force with a deadly weapon against that person; therefore, a 

disinterested observer could reasonably believe that the act of waving a box 

cutter at another person could be a violation of law. See IAF, Tab 6 at 22-29, Tab 

12, subtabs 4b, 4l, 4m. Based on the foregoing, we find that the appellant has 

nonfrivolously alleged that he reasonably believed he disclosed a violation of 

law, and, therefore, the disclosure is protected by the WPA. 

b. contributing factor 

¶22 In order to satisfy the contributing factor criterion, an appellant need only 

raise a nonfrivolous allegation that the fact of, or content of, the protected 

disclosure was one factor that tended to affect the personnel action in any way. 

Atkinson v. Department of State, 107 M.S.P.R. 136, ¶ 15 (2007) (citing Santos v. 

Department of Energy, 102 M.S.P.R. 370, ¶ 10 (2006)) (emphasis in original). 

Under the knowledge/timing test of 5 U.S.C. § 1221(e)(1), an employee may 

demonstrate that the disclosure was a contributing factor in a personnel action 

through circumstantial evidence, such as 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. Carey v. Department 

of Veterans Affairs, 93 M.S.P.R. 676, ¶ 11 (2003); see Wadhwa v. Department of 

Veterans Affairs, 110 M.S.P.R. 615, ¶ 12 (2009), aff’d, 353 F. App’x 435 (Fed. 

Cir. 2009). While the knowledge/timing test is not the only way for an appellant 

to satisfy the contributing factor standard, it is “one of the many possible ways” 

to satisfy the standard. Carey, 93 M.S.P.R. 676, ¶ 11. 

¶23 The appellant asserted in his Affidavit and Response to Jurisdictional Order 

that Mr. Boneberg received recommendations from Ms. Wolforth and Mr. Benson 

regarding his termination. IAF, Tab 6 at 10; see IAF, Tab 12, subtab 4f at 3. 
12

However, it was Human Resources Officer Joyce Deters who issued the 

termination decision upon a recommendation from Mr. Boneberg. IAF, Tab 12, 

subtab 4f. Although the appellant has not specifically alleged that Ms. Deters 

knew of the physical violence disclosure when terminating him, he can show that 

his protected disclosure was a contributing factor by proving that Ms. Deters was 

influenced by an individual with actual knowledge of the disclosure. See

Marchese v. Department of the Navy, 65 M.S.P.R. 104, 108 (1994). 

¶24 Ms. Deters ultimately decided to terminate the appellant in part for conduct 

issues concerning his confrontational and hostile behavior towards co-workers 

and supervisors. IAF, Tab 12, subtab 1 at 2, subtab 4f. This charge allegedly 

arose from the appellant’s alleged arguments with and acts of hostility towards 

his co-workers, as documented by Mr. Benson; this includes the box cutter 

incident that the appellant directly reported to Mr. Benson. IAF, Tab 6 at 25, Tab 

12, subtabs 4b, 4j, 4l, 4m. Based on these incidents, Ms. Wolforth held a meeting 

with the appellant, Mr. Benson, and Union Representative Tom Sherer, warning 

the appellant that his inappropriate conduct “put his employment in jeopardy” and 

“could result in his termination.” IAF, Tab 6 at 25, subtab 4a. Mr. Benson and 

Mr. Sherer both documented the meeting. IAF, Tab 12, subtabs 4a, 4g. A 

reasonable person could find that Mr. Boneberg considered all of the documents 

concerning confrontations, arguments, and acts of hostility between the appellant 

and his co-workers, including Mr. Benson’s write-up and the appellant’s sworn 

statement regarding the box cutter incident, IAF, Tab 12, 4l-4m, in 

recommending the appellant’s termination, and therefore knew of the physical 

violence disclosure. Thus, the appellant has nonfrivolously alleged that Mr. 

Boneberg had knowledge of the physical violence disclosure, and that based on 

Mr. Boneberg’s recommendation to Ms. Deters to terminate the appellant, Ms. 

Deters had imputed knowledge of the physical violence disclosure. 

¶25 Alternatively, if Mr. Boneberg, the Director, based his recommendation 

upon oral reports by Ms. Wolforth, the Deputy Director, and/or Mr. Benson, the 
13

second-line supervisor who documented the incidents underlying the appellant’s 

alleged conduct issues, a reasonable person could find that they informed Mr. 

Boneberg of the box cutter incident, as it was one of the underlying incidents that 

demonstrated the appellant’s conduct issues, and led Ms. Wolforth to warn the 

appellant that it could result in his termination. Thus, the appellant has alleged 

facts to support a nonfrivolous allegation that the agency decision makers had 

imputed knowledge of the physical violence disclosure, in deciding to terminate 

his employment. Thus, the appellant has met the knowledge part of the 

knowledge/timing test. 

¶26 With respect to the timing test, the record shows that the appellant made the 

physical violence disclosure sometime in December 2008, IAF, Tab 12, subtab 4b 

at 2-3, subtab 4d at 12, subtab 4m at 1, and he was terminated approximately 4 

months later on April 21, 2009, id., subtab 4f. Thus, 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 

Wadhwa, 110 M.S.P.R. 615 ¶ 13 (6 months is well within the range of time 

between a disclosure and a personnel action from which an inference of causation 

arises). Consequently, we find that the appellant has nonfrivolously alleged that 

his physical violence disclosure is protected, and was a contributing factor in his 

termination. Thus, the appellant is entitled to a hearing. See Kahn, 528 F.3d at 

1341; Iyer, 95 M.S.P.R. 239, ¶ 6. 

¶27 We therefore REMAND the IRA appeal to the Atlanta Regional Office and 

instruct the administrative judge to hold a hearing to determine whether the 

appellant is entitled to corrective action based upon his reprisal claim concerning 

the physical violence disclosure. 

The administrative judge failed to provide the appellant with proper jurisdictional 

notice.

¶28 On the initial appeal form, the appellant checked the box for “[t]ermination 

during probationary or initial service period.” IAF, Tab 1 at 2. The appellant 
14

also attached a memorandum from Mr. Boneberg that responded to the appellant’s 

request for a Step 3 meeting, and stated that the appellant’s separation during his 

probationary period was excluded from the grievance procedure, and therefore 

did not deprive the appellant of his appeal rights. Id. at 8. Based on the 

foregoing, it appears that the appellant raised a probationary termination claim 

before the Board separate from his IRA appeal. 

¶29 The appellant had the burden of proof by preponderant evidence on the 

issue of jurisdiction. 5 C.F.R. § 1201.56(a)(2)(i). Where an appellant makes a 

nonfrivolous allegation of Board jurisdiction over an appeal, he is entitled to a 

hearing on the jurisdictional question. Garcia v. Department of Homeland 

Security, 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc). An appellant must 

receive explicit information on what is required to establish an appealable 

jurisdictional issue. Burgess v. Merit Systems Protection Board, 758 F.2d 641, 

643-44 (Fed. Cir. 1985). Here, the administrative judge merely apprised the 

appellant of the requirements to establish jurisdiction over his IRA appeal, and 

the initial decision did not cure the defective Burgess notice by apprising the 

appellant of what he must do to establish that he is an “employee” with Board 

appeal rights under 5 U.S.C. Chapter 75 or that he was terminated during his 

probationary period based on partisan political reasons or marital status. Stokes 

v. Federal Aviation Administration, 761 F.2d 682, 684-85 (Fed. Cir. 1985); see 

Baggan v. Department of State, 109 M.S.P.R. 572, ¶ 4 (2008); 5 C.F.R. 

§ 315.806(b); ID; IAF, Tab 5. Thus, the administrative judge did not afford the 

appellant the opportunity to meet his jurisdictional burden. See Easterling v. U.S. 

Postal Service, 110 M.S.P.R. 41, ¶ 11 (2008). 

¶30 We therefore REMAND the appellant’s probationary termination claim to 

the Atlanta Regional Office and instruct the administrative judge to apprise the 

appellant of the requirements to establish that he is an “employee” with Board 

appeal rights under 5 U.S.C. Chapter 75, or that the Board has jurisdiction over 
15

his probationary termination claim, and to afford the parties an opportunity to file 

evidence and argument on this jurisdictional issue. 

ORDER

¶31 Based on the foregoing, we AFFIRM the initial decision in part; REVERSE 

the initial decision in part; and REMAND the appeal to the Atlanta Regional 

Office for further adjudication consistent with this Opinion and Order. After 

such adjudication, the administrative judge shall issue a new ID setting forth his 

decision regarding the appellant’s reprisal claim based upon his physical violence 

disclosure and his probationary termination claim. 

FOR THE BOARD: 

______________________________ 

William D. Spencer 

Clerk of the Board 

Washington, D.C.