UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

RAPHAEL R. ADAM,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

SF-1221-12-0695-B-1

DATE: February 5, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Danielle B. Obiorah, Esquire, McDonough, Georgia, for the appellant.

Michael L. Halperin, Esquire, Monterey, California, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the remand initial decision

in this individual right of action (IRA) appeal, which denied his request for 

corrective action. Generally, we grant petitions such as this one only when: the 

initial decision contains erroneous findings of material fact; the initial decision is 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

based on an erroneous interpretation of statute or regulation or the erroneous 

application of the law to the facts of the case; the judge’s rulings during either the 

course of the appeal or the initial decision were not consistent with required 

procedures or involved an abuse of discretion, and the resulting error affected the 

outcome of the case; or new and material evidence or legal argument is available 

that, despite the petitioner’s due diligence, was not available when the record 

closed. See Title 5 of the Code of Federal Regulations, section 1201.115 

(5 C.F.R. § 1201.115). After fully considering the filings in this appeal, and 

based on the following points and authorities, we conclude that the petitioner has 

not established any basis under section 1201.115 for granting the petition for 

review. Therefore, we DENY the petition for review. Except as MODIFIED by 

this Final Order to VACATE the administrative judge’s finding that the agency 

proved it would not have selected the appellant for a vacant instructor position by 

clear and convincing evidence and to find that the appellant did not show that his 

disclosure was a contributing factor in the agency’s decision to allow his 

temporary appointment to expire, we AFFIRM the initial decision. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 We previously found that the appellant had made a nonfrivolous allegation 

establishing Board jurisdiction over his IRA claim and remanded this appeal for a 

hearing on the merits. Remand Appeal File (RAF), Tab 1. 

¶3 The appellant was an Assistant Professor serving a temporary appointment 

at the agency’s Defense Language Institute Foreign Language Center and Presidio 

of Monterey, California. MSPB Docket No. SF-1221-12-0695-W-1, Initial 

Appeal File (IAF), Tab 7, Subtab 4O. His temporary appointment expired on 

September 30, 2011. Id., Subtab 4G. He alleged that he made two protected 

disclosures to his former dean, and, in retaliation for those disclosures, his 

temporary appointment was not extended and he was not selected for available 

vacant instructor positions. IAF, Tab 1 at 4-8. The Board found that he made a 
3

nonfrivolous allegation for only one of the two disclosures. RAF, Tab 1 at 4-5. 

Specifically, the Board found that, in August 2009, he made a protected 

disclosure to his then-dean that other instructors were misusing government

resources while on temporary duty. Id. The instructors, including the appellant, 

were all supervised by a supervisory program manager who was the subject of the 

appellant’s other alleged protected disclosure. RAF, Tab 1 at 5, Tab 14 at 17. 

We previously affirmed the administrative judge’s determination that this second 

disclosure was not protected. RAF, Tab 1 at 5.

¶4 On remand, the appellant withdrew his request for a hearing during a 

conference call and moved to have the appeal adjudicated based on the written 

record. RAF, Tab 9 at 1. The administrative judge notified the appellant of his 

burden to prove his IRA appeal. Id. at 4-10. Both parties submitted additional 

evidence and argument prior to the close of the record. RAF, Tabs 13-15. The 

administrative judge issued a decision that denied the appellant’s request for 

corrective action. RAF, Tab 16, Remand Initial Decision (RID) at 1. He found 

that the appellant exhausted his remedies with the Office of Special Counsel 

(OSC) and that his nonselection was a personnel action under 5 U.S.C. 

§ 2302(a)(2)(A). RID at 5-6. The administrative judge found that the appellant 

failed to show that his whistleblowing was a contributing factor to his 

nonselection.2

 RID at 12. The appellant has submitted a timely petition for 

review. Remand Petition for Review (RPFR) File, Tab 1. The agency has 

responded in opposition to the appellant’s petition for review. RPFR File, Tab 2.

 2 The administrative judge also found that the agency proved by clear and convincing 

evidence that it would not have selected the appellant for the vacant position. ID at 13. 

Because we find that the appellant did not prove that his whistleblowing was a 

contributing factor to his nonselection, the appellant did not prove his prima facie claim 

of reprisal and the administrative judge erred in reaching the issue as to whether the 

agency proved by clear and convincing evidence that it would have taken the personnel 

action. See Clarke v. Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19 n.10 

(2014). Therefore, we VACATE the administrative judge’s clear and convincing 

finding.
4

¶5 To secure corrective action from the Board in an IRA appeal, an appellant 

must first seek corrective action from OSC. Aquino v. Department of Homeland 

Security, 121 M.S.P.R. 35, ¶ 9 (2014). If an appellant has exhausted his 

administrative remedies before OSC, he can establish Board jurisdiction over an 

IRA appeal by nonfrivolously alleging that he made a protected disclosure and 

that the disclosure was a contributing factor in the agency’s decision to take a 

personnel action. Id. Once the appellant successfully proves jurisdiction, he 

must establish a prima facie case of whistleblower reprisal by proving, by 

preponderant evidence, that he made a protected disclosure that was a 

contributing factor in a personnel action taken against him. Hugenberg v. 

Department of Commerce, 120 M.S.P.R. 381, ¶ 9 (2013). The parties have not 

contested the administrative judge’s findings that the appellant exhausted his 

administrative remedies with OSC, that his nonselection was a covered personnel 

action, and that he made a protected disclosure. Therefore, we see no reason to 

disturb these well-reasoned findings on review. See 5 C.F.R. § 1201.115 (the 

Board normally will consider only issues raised in a timely petition for review or 

cross petition for review).

¶6 The administrative judge found that the appellant failed to show that the 

officials who made the decision not to select him for a vacant instructor position

knew of his whistleblowing activity. RID at 12. He further found the appellant 

did not demonstrate that other individuals who were aware of his whistleblowing 

activity influenced the individuals on the selection panel. RID at 12. The 

appellant argues in his petition for review that the administrative judge made 

improper credibility determinations in giving greater weight to the agency’s 

affidavits over the appellant’s affidavit. RPFR File, Tab 1 at 6-8. We disagree. 3

 3 When an administrative judge’s findings are not based on the observation of 

witnesses’ demeanor, the Board is free to reweigh the evidence and substitute its own 

judgment on credibility issues. Haebe v. Department of Justice, 288 F.3d 1288, 1302 

(Fed. Cir. 2002). On examining the evidence, we agree with the administrative judge’s 

findings.
5

¶7 An employee who establishes that he made a protected disclosure has the 

additional burden of showing that the disclosure was a contributing factor in the 

personnel action. Schneider v. Department of Homeland Security, 98 M.S.P.R. 

377, ¶ 16 (2005). An employee may meet this burden through circumstantial 

evidence, such as the acting officials’ knowledge of the disclosure and the timing 

of the personnel action. Id. Thus, an appellant’s submission of evidence that the 

officials 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 actions, 

i.e., evidence sufficient to meet the knowledge/timing test, satisfies the 

contributing factor standard. Id. While the knowledge/timing test is not the only 

way for an appellant to satisfy the contributing factor standard, it is one possible 

way to satisfy the standard and is the method utilized by the appellant. Baldwin 

v. Department of Veterans Affairs, 113 M.S.P.R. 469, ¶ 22 (2010); RAF, Tab 14 

at 10-12. 

¶8 Here, the appellant was correct that the proximity of his disclosure to the 

personnel action demonstrated the timing element of the knowledge/timing test. 

RAF, Tab 14 at 11-12. The appellant alleged that his nonselection occurred 

22 months after making his protected disclosure. Id. at 11. The Board has 

previously held that a personnel action taken within 1 to 2 years of a disclosure 

meets the timing element of the knowledge/timing test. Ontivero v. Department 

of Homeland Security, 117 M.S.P.R. 600, ¶ 23 (2012).

¶9 However, the appellant fails to prove the knowledge element of the test. 

The appellant alleged both actual and constructive knowledge by the selecting 

officials involved in his nonselection. RAF, Tab 14 at 10-11. The appellant 

alleged that the selection panel became aware of his whistleblowing activities 

when the panel members reviewed his official personnel file (OPF). Id. at 11, 18. 

As the administrative judge noted in his decision, the appellant provided no 

evidence to support this argument and did not identify what documents, if any, 
6

may have been included in his OPF that would have indicated his whistleblowing 

activity. RID at 10. The appellant’s argument was contradicted by the sworn 

statement of one of the selection panel members that the selection panel was not 

aware of the appellant’s whistleblowing activity. RAF, Tab 13 at 11. The 

appellant argues that the selection panel member’s affidavit should have included 

only her actions in the selection process and not included statements on behalf of 

the other selection panel members. RPFR File, Tab 1 at 7. Even if the affidavit 

only addressed her individual process and actions as the appellant argues, the 

appellant has not demonstrated actual knowledge by either the affiant or the other 

two selection panel members. The appellant has not submitted any evidence that 

his disclosure or other documents relating to his whistleblowing were included in 

his OPF. The appellant only made the unsupported allegation that, because his 

OPF was forwarded to the selection panel, his activity could have been included 

in the file. RAF, Tab 14 at 11. In addition, the selection panel members were in 

a different directorate than the appellant, Continuing Education versus 

Undergraduate Education, based on the agency’s affidavits and the organizational 

chart submitted by the appellant. See id. at 42 (organization chart for Continuing 

Education directorate), RAF, Tab 13 at 7, 11 (selection panel consisted of deans 

of three Arabic language schools in the Undergraduate Education directorate). 

Therefore, the appellant has not proven by preponderant evidence that the 

selection panel had actual knowledge of his protected disclosure when it did not 

select him for the instructor position.

¶10 The appellant also alleged that his former dean and supervisory program 

manager were both aware of his disclosure and influenced the selection process. 

RAF, Tab 14 at 11. In making this argument, he seeks to impute knowledge of 

his disclosure to the selection panel under a cat’s paw theory. See Aquino, 

121 M.S.P.R. 35, ¶ 21 (citing Staub v. Proctor Hospital, 562 U.S. 411, 131 S. Ct. 

1186, 1194 (2011) (applying a cat’s paw theory to a claim under the Uniformed 

Services Employment and Reemployment Rights Act of 1994)). Under this
7

theory, an appellant can demonstrate that his whistleblowing was a contributing 

factor in the personnel action by showing by preponderant evidence that an 

individual with knowledge of his protected disclosure influenced the deciding 

officials accused of taking the personnel action. Id., ¶ 23. 

¶11 The agency provided evidence that the selection panel made its choices 

based on the performance and disciplinary records found in the OPF of each 

applicant and did not discuss the selections with anyone in the appellant’s 

division. RAF, Tab 13 at 11. The agency submitted a sworn affidavit from the 

former dean, who stated that he did not discuss the appellant’s whistleblowing 

disclosure with the members of the selection panel.

4

 Id. at 8. The appellant 

stated in his affidavit that, after he made his protected disclosure, his supervisory 

program manager’s treatment of him was “noticeably different and less cordial.” 

RAF, Tab 14 at 18. The appellant argued that the timing of the change in 

behavior was evidence that the supervisory program manager was aware of the 

disclosure. Id. at 10-11. The appellant admitted that he did not know what 

actions the former dean took regarding his disclosure. Id. at 17. We find that the 

appellant provided insufficient evidence that the supervisory program manager

had knowledge of the protected disclosure or engaged in any activity with the 

intent to cause the selection panel to take the personnel action.5

 4 The appellant argues that the former dean’s affidavit should not have been weighted 

so greatly by the administrative judge because the former dean’s statements, regarding 

any comments from the appellant’s supervisory chain of command, are hearsay. RPFR

File, Tab 1 at 7-8. We need not consider the former dean’s statements beyond his 

statement that he did not discuss the disclosure with the selection panel because the 

appellant has only alleged constructive knowledge through the former dean and 

supervisory program manager and not any other members of his supervisory chain of 

command. RAF, Tab 14 at 10-11.

5 In an IRA appeal, the appellant bears the burden of proving that the retaliation at issue 

was related to a protected disclosure. See Hugenberg, 120 M.S.P.R. 381, ¶ 9 (setting 

forth the elements of the appellant’s prima facie case). Therefore, to the extent that the 

appellant alleges that the program manager retaliated against him for his disclosure that 

we previously held not to be protected, that claim also fails. RAF, Tab 1 at 5, Tab 14 

at 18. 
8

¶12 We also agree with the administrative judge that the appellant provided 

insufficient evidence that his former supervisory program manager influenced the 

selection process. RID at 12. The appellant alleged that one of the instructors 

was not initially selected but was selected after meeting with the supervisory 

program manager. RAF, Tab 14 at 18. The appellant did not provide evidence, 

such as an affidavit from the selected instructor, that the supervisory program 

manager’s involvement led to his subsequent selection. Id. 

¶13 In 2010, the appellant reported to a new program manager. See id. at 17. 

The appellant further alleged in his affidavit that his new program manager

disciplined him in 2010, in retaliation for his protected disclosure. Id. at 18. 

According to the appellant, this discipline was then reviewed and considered by 

the selection panel in deciding not to select him. Id. However, as the 

administrative judge noted in his decision, the appellant had previously alleged 

that this discipline was due to discrimination based on national origin and not in 

retaliation for whistleblowing. RID at 11-12. In addition, the appellant has 

provided no evidence that the new program manager had any knowledge of his 

2009 protected disclosure beyond his own unsupported speculation. RAF, Tab 14 

at 18. Therefore, we find that the evidence does not support imputing knowledge 

of the appellant’s disclosure to the selection panel under the cat’s paw theory. 

¶14 Based on the evidence in the record, we find that the appellant did not prove 

by preponderant evidence that his protected disclosure was a contributing factor 

in his nonselection for the instructor position because he did not prove that the 

selection panel was aware, or was influenced by someone who was aware, of his 

whistleblowing activity. 

¶15 In his initial appeal, the appellant indicated that his temporary appointment 

was allowed to expire in retaliation for his whistleblowing activity. IAF, Tab 1 

at 5. The Board found in its remand decision that the appellant established 

jurisdiction over this claim. RAF, Tab 1 at 7. The appellant, who was 

represented by counsel, did not submit any evidence or argument on remand 
9

regarding this claim, and the administrative judge did not address it in his remand 

initial decision. Because the appellant withdrew his request for a hearing, the 

Board can decide this issue on review. See Shingles v. U.S. Postal Service, 

90 M.S.P.R. 245, ¶ 10 (2001) (the effect of an appellant withdrawing his request 

for a hearing is an adjudication based on the record). 

¶16 The appellant’s temporary appointment expired on September 30, 2011, but 

he alleged that the decision to close the department in which he worked was made 

in April 2011, and he was informed of the decision in May 2011. IAF, Tab 1 at 8, 

Tab 7, Subtab 4G; RAF, Tab 14 at 17. Therefore, the appellant has proven the 

timing element of the knowledge/timing test by preponderant evidence because 

the appellant made his disclosure approximately 20 months before the decision to 

end the program. RAF, Tab 14 at 17; see Ontivero, 117 M.S.P.R. 600, ¶ 23. On 

remand, the agency submitted evidence that the provost decided to reorganize due 

to a lack of work. The appellant has failed to meet his burden to prove the 

knowledge element of the knowledge/timing test, because he provided no 

evidence or argument that the provost had any knowledge of his protected 

disclosure. As mentioned above, the appellant acknowledged that he was not 

aware of what actions, if any, the former dean took regarding his disclosure. 

RAF, Tab 14 at 17. There is no evidence that the former dean shared the 

disclosure with the provost. There is also no evidence that the former dean 

influenced the provost to end the program and not to extend the appellant’s 

temporary appointment. Because the appellant has not shown that the provost 

was aware of his protected disclosure, he has not demonstrated that the disclosure 

was a contributing factor in the agency’s decision to allow his temporary 

appointment to expire. Therefore, his claim regarding the termination of his 

temporary appointment also fails.
10

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to 

request the United States Court of Appeals for the Federal Circuit to review this 

final decision.

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 

27, 2012). If you choose to file, be very careful to file on time. The court has 

held that normally it does not have the authority to waive this statutory deadline 

and that filings that do not comply with the deadline must be dismissed. See 

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you want to request review of the Board’s decision concerning your claims of 

prohibited personnel practices under 5 U.S.C. § 2302(b)(8), (b)(9)(A)(i), 

(b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge the Board’s 

disposition of any other claims of prohibited personnel practices, you may request 

review of this final decision by the United States Court of Appeals for the Federal 

Circuit or any court of appeals of competent jurisdiction. The court of appeals 

must receive your petition for review within 60 days after the date of this order. 

See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose to file, 

be very careful to file on time. You may choose to request review of the Board’s 

decision in the United States Court of Appeals for the Federal Circuit or any 

other court of appeals of competent jurisdiction, but not both. Once you choose 

to seek review in one court of appeals, you may be precluded from seeking 

review in any other court.

If you need further information about your right to appeal this decision to 

court, you should refer to the federal law that gives you this right. It is found in 

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the United 
11

States Code, at our website, http://www.mspb.gov/appeals/uscode/htm. 

Additional information about the United States Court of Appeals for the Federal 

Circuit is available at the court's website, www.cafc.uscourts.gov. Of particular 

relevance is the court's "Guide for Pro Se Petitioners and Appellants," which is 

contained within the court's Rules of Practice, and Forms 5, 6, and 11. 

Additional information about other courts of appeals can be found at their 

respective websites, which can be accessed through 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

If you are interested in securing pro bono representation for your court 

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. The Merit Systems 

Protection Board neither endorses the services provided by any attorney nor 

warrants that any attorney will accept representation in a given case.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board