UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

2006 MSPB 359 

Docket No. AT-1221-06-0189-W-1 

Jessie Donald Hudson, 

Appellant, 

v. 

Department of Veterans Affairs, 

Agency. 

December 15, 2006 

Jessie Donald Hudson, Stone Mountain, Georgia, pro se. 

Neil S. Deol, Esquire, Decatur, Georgia, for the agency. 

BEFORE 

Neil A. G. McPhie, Chairman 

Mary M. Rose, Vice Chairman 

Barbara J. Sapin, Member 

OPINION AND ORDER

¶1 The appellant petitions for review of the initial decision that dismissed for 

lack of jurisdiction his individual right of action (IRA) appeal and his claims 

under the Veterans Employment Opportunities Act of 1998 (VEOA) and the 

Uniformed Services Employment and Reemployment Rights Act of 1994 

(USERRA). For the reasons set forth below, we DENY the appellant’s petition 

for review, REOPEN the appeal on our own motion pursuant to 5 C.F.R. 

§ 1201.118, VACATE the initial decision, and REMAND the appeal for further 

adjudication consistent with this Opinion and Order. 
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BACKGROUND

¶2 The appellant, a GS-7 Health Technician in the audiology department at 

one of the agency’s medical centers, sought corrective action from the Office of 

Special Counsel (OSC), and OSC ultimately informed him that it would not take 

any action with regard to his whistleblower complaint. Initial Appeal File (IAF), 

Tab 1 at 11-13, 15. The appellant then timely filed an IRA appeal with the 

Board. Id. at 2-10. Specifically, the appellant asserted that the agency subjected 

him to a performance improvement plan (PIP) and a performance assessment plan 

(PAP), and gave him a counseling letter regarding sick leave usage in retaliation 

“for complaining of [his supervisor’s] son working in [the audiology] 

department.” Id. at 7, 40-41, 58-59. The appellant also asserted that he is a 

veteran and he indicated on his appeal form that he was raising claims under 

VEOA and USERRA. Id. at 2, 3, 9. 

¶3 The administrative judge (AJ) informed the appellant that his appeal would 

be dismissed unless he “allege[d] facts that, if true, would show a personnel 

action was taken, proposed, threatened, or not taken because of [his] 

whistleblowing activities.” IAF, Tab 2 at 2. The AJ ordered the appellant to 

submit evidence and argument “to prove that this action is within the Board’s 

jurisdiction.” Id. After receiving the appellant’s response, as well as additional 

submissions from both parties, IAF, Tabs 3-6, the AJ dismissed the appeal for 

lack of jurisdiction without conducting the requested hearing, id., Tab 7. The AJ 

further found that the appellant failed to raise a USERRA claim and failed to 

allege that he was denied veteran’s preference rights in violation of VEOA. Id.

at 4-5. 

¶4 The appellant timely petitions for review, which the agency opposes. 

Petition for Review File (PFRF), Tabs 1, 4. 
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ANALYSIS

¶5 The appellant’s petition for review, which consists of a one-page 

submission in which he generally disagrees with the initial decision, PFRF, 

Tab 1, does not offer a basis on which to disturb the initial decision and we 

therefore DENY it. Pursuant to 5 C.F.R. § 1201.118, however, we REOPEN the 

appeal on our own motion for further consideration. 

The appellant was not provided with the appropriate jurisdictional notice 

regarding his IRA appeal and his appeal must therefore be remanded. 

¶6 The Whistleblower Protection Act (WPA) is a remedial statute and, as 

such, should be broadly construed in favor of those whom it was intended to 

protect. Harris v. Department of Transportation, 96 M.S.P.R. 487, ¶ 9 (2004). 

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); see also Rusin v. Department of the Treasury, 

92 M.S.P.R. 298, ¶ 12 (2002). 

¶7 The AJ failed to provide the appellant with proper notice of his 

jurisdictional burden under Yunus. IAF, Tab 2 at 2. Although the agency’s 

subsequent motion to dismiss the appeal for lack of jurisdiction correctly 

articulated the nonfrivolous allegations that the appellant must make under Yunus

in order to establish Board jurisdiction over his IRA appeal, IAF, Tab 5 at 3, the 

agency’s motion to dismiss did not mention the exhaustion requirement of the 

appellant’s jurisdictional burden, id. In addition, the agency’s motion did not 

specifically address how the appellant may make a nonfrivolous allegation that 

his alleged disclosures were a contributing factor in the agency’s decision to take 

or fail to take a personnel action against him. Id. 
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¶8 Further, the AJ did not address the exhaustion requirement or the issue of 

contributing factor in the initial decision, and these matters were not mentioned 

elsewhere in the record below. Given that the AJ never advised the appellant of 

either his burden of satisfying the exhaustion requirement or the means by which 

he may make a nonfrivolous allegation of contributing factor, and because the 

AJ’s errors were not cured by either the initial decision or any agency pleading, 

the appellant’s appeal must be remanded to allow the parties to submit evidence 

and argument regarding both the exhaustion requirement and the contributing 

factor issue. Johnson v. Department of Health & Human Services, 87 M.S.P.R. 

204, ¶ 4 (2000); see Tatsch v. Department of the Army, 100 M.S.P.R. 460, ¶ 14 

(2005) (an employee may make a nonfrivolous allegation that a disclosure was a 

contributing factor in a personnel action by, inter alia, alleging that the official 

taking the 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). If the AJ 

determines on remand that the appellant has met the exhaustion requirement and 

has made a nonfrivolous allegation that his alleged protected disclosures were a 

contributing factor in the alleged personnel actions purportedly taken against him, 

the AJ must adjudicate the IRA appeal on the merits, given that, as discussed 

below, we find that the appellant has met the remaining jurisdictional 

requirements for an IRA appeal. 

The appellant has made a nonfrivolous allegation that he made protected 

disclosures. 

¶9 The appellant contended below that he complained to Senator Saxby 

Chambliss’s office that the son of his supervisor, Dr. Sushma Chandon, was 

working under Dr. Chandon’s direction in the audiology department. IAF, Tab 3 

at 3. In another submission, the appellant similarly claimed that he complained to 

Senator Chambliss’s office and to Representative Cynthia McKinney’s office that 

his supervisor’s son was working under her direction in the audiology department 
5

and that this constituted nepotism. IAF, Tab 6 at 2. Furthermore, in a letter from 

OSC to the appellant, OSC stated that the appellant alleged nepotism, i.e., that 

Dr. Chandon’s son received training that was not provided to the appellant. Id., 

Tab 1 at 12-13. 

¶10 The WPA provides that it is a prohibited personnel practice to take a 

personnel action against an employee for any disclosure of information which the 

employee reasonably believes evidences any of the behavior described under the 

statute. Keefer v. Department of Agriculture, 82 M.S.P.R. 687, ¶ 13 (1999). The 

test for determining whether a putative whistleblower had a reasonable belief is 

an objective one: Whether a disinterested observer with knowledge of the 

essential facts known to and readily ascertainable by the employee could 

reasonably conclude that the actions of the agency evidenced wrongdoing as 

defined by the WPA. LaChance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999); 

Tatsch, 100 M.S.P.R. 460, ¶ 10. 

¶11 In making a disclosure involving a violation of law, rule, or regulation, the 

inquiry as to whether a disclosure is protected ends upon a determination that the 

appellant disclosed a violation of law, rule, or regulation; there is no further 

inquiry into the type of “fraud, waste, or abuse” involved. Ganski v. Department 

of the Interior, 86 M.S.P.R. 32, ¶ 11 (2000). There is no exception to that rule 

for a disclosure of a trivial or de minimis violation of a law, rule, or regulation. 

Grubb v. Department of the Interior, 96 M.S.P.R. 377, ¶ 26 (2004); see 

Mogyorossy v. Department of the Air Force, 96 M.S.P.R. 652, ¶ 14 (2004). 

¶12 It is a violation of 5 U.S.C. §§ 2302(b)(7) and 3110 to appoint, employ, 

promote, advance, or advocate for appointment, employment, promotion, or 

advancement in a civilian position any person who is a relative of an employee if 

such position is in the agency in which the employee is serving as a public 

official or over which the employee exercises jurisdiction or control as such an 

official. A “public official” is defined as, among others, an employee in whom is 

vested the authority to appoint, employ, promote, or advance individuals, or to 
6

recommend individuals for appointment, employment, promotion, or 

advancement in connection with employment in an agency. 5 U.S.C. 

§ 3110(a)(2). 

¶13 A reasonable person in the appellant’s position could believe that 

Dr. Chandon was violating 5 U.S.C. §§ 2302(b)(7) and 3110 by employing her 

son and/or assisting in the advancement of her son by giving him preferential 

treatment in training, assuming that those allegations are true. Therefore, the 

appellant has made a nonfrivolous allegation that he made a protected disclosure. 

See Becker v. Department of Veterans Affairs, 76 M.S.P.R. 292, 296-97 (1997) 

(the appellant made a nonfrivolous allegation that he made protected disclosures 

under the WPA where he made disclosures of nepotism to the agency’s Inspector 

General and General Counsel, and to OSC). 

The PIP and PAP are prohibited personnel actions pursuant to 5 U.S.C. 

§ 2302(b)(8). 

¶14 The appellant was placed on a 90-day PIP on June 22, 2005. IAF, Tab 4, 

Subtab 4C. On June 30, 2005, the agency informed the appellant that the PIP was 

no longer in effect. IAF, Tab 4, Subtab 4D. On July 14, 2005, the agency placed 

the appellant on a PAP. Id., Subtab 4E. 

¶15 A PIP is considered a personnel action for purposes of an IRA appeal. 

See, e.g., Harris, 96 M.S.P.R. 487, ¶ 7. Even though the agency rescinded the 

PIP, there is no evidence regarding whether any references to the PIP remain in 

the appellant’s personnel file. As relief, the appellant asked that negative 

materials, which would include information regarding the PIP and PAP, be 

removed from his personnel records. IAF, Tab 1 at 7. The Board has held that, if 

it were to find that an appellant was placed on a PIP in retaliation for 

whistleblowing, the appellant’s successful completion of the PIP would not 

render an IRA appeal moot because the Board could order references to the PIP 

expunged from the appellant’s personnel file. Newcastle v. Department of the 

Treasury, 94 M.S.P.R. 242, ¶ 11 (2003). The Board has also found that an IRA 
7

appeal was not rendered moot when the agency terminated the equivalent of a PIP 

where further relief, such as monetary damages for harm to the appellant’s career, 

could be ordered if the Board found the PIP-like action to have been in retaliation 

for whistleblowing. Harris, 96 M.S.P.R. 487, ¶¶ 7-13. Thus, in the present case, 

the PIP was a personnel action within the meaning of the WPA and this appeal 

was not rendered moot when the agency terminated the PIP. 

¶16 We find that the PAP is also a personnel action. The Board has held that 

agency memoranda that merely informed an appellant of his performance 

deficiencies and instructed him as to what corrective actions were required, but 

did not threaten to take any disciplinary action against him, did not provide a 

basis for determining that the appellant had made a nonfrivolous allegation that 

the memoranda constituted personnel actions. Reeves v. Department of the Army, 

101 M.S.P.R. 337, ¶ 11 n.* (2005). However, the Board has also held that a PIP, 

even if it does not expressly threaten a personnel action, by definition, involves a 

threatened personnel action. Czarkowski v. Department of the Navy, 87 M.S.P.R. 

107, ¶ 18 (2000). Moreover, even though the agency did not call this action a 

PIP, that does not mean that it is not a personnel action under the WPA. It is the 

nature of the action, not the agency’s characterization of it, that determines Board 

jurisdiction. Id., ¶ 20. For example, where an agency memorandum 

characterized as a “Temporary Realignment of Work” could be interpreted as 

suggesting that the appellant’s performance in a critical element was 

unacceptable, and provided her an opportunity to improve (including an offer of 

assistance to help her improve), the Board found that the appellant made a 

nonfrivolous allegation that the agency’s action was really a PIP and, therefore, a 

threatened personnel action. Id., ¶¶ 20-21; see also Harris, 96 M.S.P.R. 487, ¶ 7 

(the Board held that an Opportunity to Demonstrate Acceptable Performance was 

equivalent to a PIP and was therefore a personnel action). 

¶17 Here, the PAP does not expressly threaten a personnel action. 

Nevertheless, the PAP could be read to suggest that the appellant’s performance 
8

in a critical element was unacceptable, it provides the appellant with 30 days to 

show improvement, and it offers assistance in the form of weekly meetings with 

his supervisor, Dr. Chandon. IAF, Tab 4, Subtab 4E. The PAP and the rescinded 

PIP both contain several of the same “expectations” for the appellant to fulfill. 

Compare id. with IAF, Tab 4, Subtab 4C. Furthermore, the PAP states that, “[a]t 

the end of this 30-day time period, [Dr. Chandon] will reassess [the appellant’s] 

performance and make a determination as to [his] current status.” Id., 

Subtab 4E at 2. Thus, there was an implied threatened personnel action if the 

appellant did not meet the performance expectations of the PAP and the PAP 

therefore constituted a personnel action within the meaning of the WPA.*

 

The appellant’s VEOA and USERRA claims must also be remanded. 

¶18 It appears that the appellant intended to raise claims under both VEOA and 

USERRA. IAF, Tab 1 at 3, 9; Tab 6 at 3. Thus, it was error for the AJ to dismiss 

these claims without first apprising the appellant of his rights and burdens under 

VEOA and USERRA. See Brasch v. Department of Transportation, 101 M.S.P.R. 

145, ¶ 14 (2006) (USERRA claim); Easter v. Department of the Army, 

99 M.S.P.R. 288, ¶¶ 6-9 (2005) (VEOA claim); see also Burgess v. Merit Systems 

Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). 

¶19 In order to establish Board jurisdiction over an appeal brought under 

VEOA, an appellant must: (1) Show that he exhausted his remedy with the 

 

*

 With regard to the counseling letter, IAF, Tab 4, Subtab 4B, the AJ determined that it 

concerned the appellant’s past sick leave usage, was not disciplinary in nature, and 

merely indicated that the appellant might need to submit medical documentation for 

future usage of sick leave, IAF, Tab 7 at 3-4. The counseling letter did not threaten 

disciplinary action or propose to restrict the appellant’s leave usage; rather, it merely 

set forth the agency’s existing rules regarding leave usage. Cf. Mitchell v. Department 

of the Treasury, 68 M.S.P.R. 504, 511 (1995) (agency proposal to restrict appellant’s 

leave demonstrated that she was subject to or threatened with a personnel action). 

Under the circumstances, we agree with the AJ that the counseling letter did not 

constitute a personnel action under the WPA. See Johnson, 87 M.S.P.R. 204, ¶ 11 

(a memorandum of oral counseling is not a formal disciplinary action under 5 U.S.C. 

§ 2302(a)(2)(A), and, thus, it does not constitute a personnel action). 
9

Department of Labor, and (2) make nonfrivolous allegations that (i) he is a 

preference eligible within the meaning of VEOA, (ii) the actions at issue took 

place on or after the October 30, 1998 enactment date of VEOA, and (iii) the 

agency violated his rights under a statute or regulation relating to veterans’ 

preference. Easter, 99 M.S.P.R. 288, ¶ 7. 

¶20 In order to establish Board jurisdiction over a USERRA appeal, the 

appellant must: (1) Show that he performed duty in a uniformed service of the 

United States; (2) nonfrivolously allege that he lost a benefit of employment; and 

(3) nonfrivolously allege that the benefit was lost due to the performance of duty 

in the uniformed service. Hammond v. Department of Veterans Affairs, 

98 M.S.P.R. 359, ¶ 7 (2005); Williams v. Department of the Air Force, 

97 M.S.P.R. 252, ¶ 10 (2004). 

¶21 Given that the appellant did not receive proper jurisdictional notice 

regarding his VEOA and USERRA claims, it is necessary to remand these claims 

to afford the appellant the opportunity to establish that the Board has jurisdiction 

to consider them. See Burgess, 758 F.2d at 643-44. 

ORDER

¶22 Accordingly, we REMAND the appellant’s IRA appeal in order to allow 

the parties to submit evidence and argument regarding whether the appellant 

exhausted his administrative remedies before OSC. Also, the AJ must provide 

the appellant with specific notice regarding how to establish a nonfrivolous 

allegation that his alleged protected disclosures were a contributing factor to the 

PIP and the PAP. If the AJ finds that the appellant has exhausted his 

administrative remedies and has made a nonfrivolous allegation of contributing 

factor, the AJ should then adjudicate the appellant’s IRA appeal on the merits, 

including conducting a hearing if requested. In addition, we REMAND the 

appellant’s VEOA and USERRA claims in order for the AJ to provide the 

appellant with specific notice of his rights and burdens under VEOA and 
10

USERRA, and to provide both parties an opportunity to present evidence and 

argument regarding the Board’s jurisdiction over both claims. The AJ shall then 

issue a new initial decision consistent with this Opinion and Order. 

FOR THE BOARD: 

______________________________ 

Bentley M. Roberts, Jr. 

Clerk of the Board 

Washington, D.C.