UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ANDREA X. WILLIAMS,

Appellant,

v.

SOCIAL SECURITY 

ADMINISTRATION,

Agency.

DOCKET NUMBER

AT-1221-13-0239-B-1

DATE: December 9, 2014

THIS ORDER IS NONPRECEDENTIAL1

Phillip Thomason, Dawsonville, Georgia, for the appellant.

Avni D. Gandhi, Esquire, and Peter S. Massaro, III, Atlanta, Georgia, for 

the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

REMAND ORDER

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

which denied his request for corrective action. For the reasons discussed below, 

we GRANT the appellant’s petition for review, AFFIRM IN PART and VACATE 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

IN PART the administrative judge’s initial decision, and REMAND the case to 

the regional office for further adjudication in accordance with this Order. 

DISCUSSION OF ARGUMENTS ON REVIEW

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

challenging his 14-day suspension as an act of whistleblower reprisal. Remand 

Appeal File (RAF), Tab 3 at 30-38. In his complaint to OSC, the appellant 

alleged, inter alia, that he was subjected to a hostile work environment, 

retaliation, and unfair labor practices and that he made protected disclosures to 

several individuals, including one of the agency’s Regional Commissioners and 

the agency’s Office of Inspector General (OIG), concerning these issues. Id. 

at 30, 36; see RAF, Tab 31 at 124-28 (OIG report), 145-47 (appellant’s email to 

Regional Commissioner). The administrative judge found that the appellant 

established jurisdiction over his appeal and, following a hearing, found that the 

appellant failed to establish by preponderant evidence that he made a protected 

disclosure under 5 U.S.C. § 2302(b)(8) and, alternatively that the agency 

established by clear and convincing evidence that it would have taken the same 

personnel action in the absence of the appellant’s protected disclosure. RAF, 

Tab 37, Remand Initial Decision (RID) at 7-10, 11-13. The appellant has filed a 

petition for review, and the agency has filed a response. Petition for Review 

(PFR) File, Tabs 1, 3.

¶3 In order to secure corrective action from the Board in an individual right of 

action (IRA) appeal, an appellant must first seek corrective action from OSC.2

 

Aquino v. Department of Homeland Security, 121 M.S.P.R. 35, ¶ 9 (2014). 3

 If an 

 2 In our prior Remand Order, we found that the appellant filed a complaint with OSC 

prior to filing a grievance challenging his 14-day suspension, and that he exhausted his 

remedies with OSC. See MSPB Docket No. AT-1221-13-0239-W-1, Remand Order 

at 3-4.

3 Pursuant to the Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L. 

112-199, 126 Stat. 1465, an employee may also file an IRA appeal with the Board 

concerning alleged reprisal for participation in certain protected activities after 
3

appellant exhausts his remedies with OSC, he may then file an IRA appeal with 

the Board and must nonfrivolously allege facts which would establish jurisdiction 

over his appeal. Id. When reviewing the merits of an IRA appeal, the Board 

considers whether the appellant has established by a preponderance of the 

evidence that he made a protected disclosure under 5 U.S.C. § 2302(b)(8) that 

was a contributing factor in the agency’s personnel action. Id., ¶ 10. If an 

appellant is able to offer such proof, the Board must order corrective action 

unless the agency can establish by clear and convincing evidence that it would 

have taken the same personnel action in the absence of the disclosure. Id. Clear 

and convincing evidence is that measure or degree of proof that produces in the 

mind of the trier of fact a firm belief as to the allegations sought to be 

established. Id. 

¶4 We agree with the administrative judge that the appellant’s alleged 

protected disclosures raising allegations of equal employment opportunity (EEO) 

harassment, discrimination, and retaliation do not qualify as protected disclosures 

under 5 U.S.C. § 2302(b)(8) and thus we AFFIRM this portion of the initial 

decision. RID at 5-6. Both the Federal Circuit and the Board have found that 

allegations of discrimination and harassment do not constitute protected 

disclosures of a violation of law, rule, or regulation because they pertain to 

matters of discrimination covered by 5 U.S.C. § 2302(b)(1)(A) and are actionable 

through other administrative mechanisms, such a filing an EEO complaint. See,

e.g., Spruill v. Merit Systems Protection Board, 978 F.2d 679, 690 (Fed. Cir. 

1992); Redschlag v. Department of the Army, 89 M.S.P.R. 589, ¶ 84 (2001). 

Thus, to the extent the appellant’s OSC complaint contains allegations of EEO 

harassment, discrimination, and retaliation, we agree with the administrative 

judge that these allegations are not protected disclosures under 5 U.S.C. 

§ 2302(b)(8).

 

exhausting such claims with OSC. See 5 U.S.C. § 1221(e)(1). None of these additional 

bases for filing an IRA appeal with the Board, however, are at issue in this case.
4

¶5 We differ with the administrative judge’s conclusion, however, that the 

appellant’s disclosure of facts which could form the basis of an unfair labor 

practice (ULP) charge cannot also serve as the basis for a protected disclosure of 

a violation of law, rule, or regulation under 5 U.S.C. § 2302(b)(8) and thus we 

VACATE this portion of the initial decision. RID at 7.4 In her remand initial 

decision, the administrative judge cited Mitchell v. Department of the 

Treasury, 68 M.S.P.R. 504 (1995), for the proposition that “allegations of facts 

which only evidence [a ULP] are not the type of disclosure Congress intended to 

protect under the Whistleblower Protection Act.” RID at 7. Although this is an 

accurate summary of Mitchell, the Board further explained that “if the alleged 

facts underlying the ULP charge/complaint also would constitute independent 

violations of section 2302(b)(8), the employee discloses the facts through 

additional channels in such a way as to advance his whistleblower claim, and 

suffers a personnel action which he alleges is retaliation for his whistleblowing 

disclosure, he may avail himself of the IRA procedures.” See

Mitchell, 68 M.S.P.R. 504, 509-10 (citing Ellison v. Merit Systems Protection 

Board, 7 F.3d 1031, 1035 (Fed. Cir. 1993)) (emphasis added).

5

 

¶6 Here, we find that the appellant’s disclosure of the facts underlying a 

potential ULP charge—specifically, that he was denied his right to union 

representation during a formal discussion with the agency—constitutes a 

disclosure of an independent violation of a law, rule, or regulation under section 

2302(b)(8), and may form the basis of an independent claim of whistleblower 

reprisal. See id.; see also Loyd v. Department of the Treasury, 69 M.S.P.R. 684, 

 4 In her initial decision, the administrative judge found that such allegations fell under 

5 U.S.C. § 2302(b)(9)(A), rather than section 2302(b)(8). RID at 7. As explained 

herein, we find that the appellant made protected disclosures under section 2302(b)(8).

5 It is possible that this two-step analysis, of whether the underlying facts of an 

otherwise nonprotected disclosure of a ULP may nonetheless constitute an independent 

protected disclosure of a violation of section 2302(b)(8), may now be unnecessary 

following the enactment of the WPEA. See Carney v. Department of Veterans Affairs, 

121 M.S.P.R. 446, ¶¶ 5-6 (2014).
5

688-89 (1996). Similar to both Mitchell and Loyd, where the employees 

independently disclosed the underlying facts of ULP charges and alleged that they 

were retaliated against because they made these disclosures, the record here

reflects that the appellant disclosed to both a Regional Commissioner and the OIG 

that his right to union representation under 5 U.S.C. § 7114 was not honored 

during a formal discussion with the agency, 6 and that he was suspended for 

14 days shortly after making these disclosures. RAF, Tab 31 at 124-28, 145-47. 

Consistent with these decisions, we find that the appellant made a protected 

disclosure under 5 U.S.C. § 2302(b)(8). We further find that the appellant has 

established that his disclosures were a contributing factor in his 14-day 

suspension because the deciding official knew about his disclosures and because

his 14-day suspension was issued within a short period of time after he made 

them. See Schoenig v. Department of Justice, 120 M.S.P.R. 318, ¶ 13 (2013); see

also RID at 10 n.6 (finding that the deciding official was aware of appellant’s 

email to the Regional Commissioner); RAF, Tab 31 at 127 (OIG summary of 

interview with the deciding official concerning appellant’s complaint), 

145 (appellant’s email to the Regional Commissioner which was also sent to the 

deciding official).

¶7 Although the administrative judge found that the appellant failed to 

establish that he made protected disclosures under 5 U.S.C. § 2302(b)(8), she 

made alternative findings that the agency established by clear and convincing 

evidence that it would have suspended the appellant, even in the absence of his 

alleged protected disclosures. RID at 10-13. Congress, however, recently 

amended the procedures the Board must follow in adjudicating claims of 

whistleblower reprisal. See, e.g., Clarke v. Department of Veterans 

 6 The appellant referred to this incident as a violation of his Weingarten rights, which 

similarly requires employers covered by the National Labor Relations Act to allow 

union representation during investigatory interviews. See Lim v. Department of 

Agriculture, 10 M.S.P.R. 129, 130 (1982).
6

Affairs, 121 M.S.P.R. 154, ¶ 19 n.10 (2014). Specifically, Congress 

amended 5 U.S.C. § 1221(e)(2) to provide that corrective action cannot be 

ordered if, “after a finding that a protected disclosure was a contributing factor,” 

the agency demonstrated by clear and convincing evidence that it would have 

taken the same personnel action in the absence of such disclosure. Id. (citing the 

WPEA) (emphasis added). Under this amendment, the Board may not proceed to 

the clear and convincing evidence test unless it has first made a finding that the 

appellant established his prima facie case. Id. Accordingly, because the 

administrative judge did not conclude that the appellant made a protected 

disclosure which was a contributing factor in a challenged personnel action, we 

find that the administrative judge erred in rendering alternative findings that the 

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

same personnel action in the absence of the appellant’s protected disclosure. Id., 

¶ 19 (declining to reach whether the administrative judge’s alternative findings 

were proper in the absence of evidence that the appellant made protected 

disclosures and exhausted those disclosures with OSC). Thus, to the extent that 

the administrative judge made alternative findings that the agency established by 

clear and convincing evidence that it would have suspended the appellant, even in 

the absence of his alleged protected disclosures, we VACATE this portion of the

initial decision.

¶8 Because, however, we find on review that the appellant made protected 

disclosures under 5 U.S.C. § 2302(b)(8), which were a contributing factor in the 

agency’s decision to suspend the appellant for 14 days, we REMAND the case to 

the administrative judge to conduct further proceedings, including an analysis 

under Whitmore v. Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012), to 

determine whether, after considering all of the evidence in the record, the agency 

can prove by clear and convincing evidence that it would have taken the same 

personnel action. See Herman v. Department of Justice, 119 M.S.P.R. 642, ¶ 15 

(2013). In reaching this conclusion, we recognize that some of the administrative 
7

judge’s prior alternative findings may support the conclusion that the agency 

would have taken the challenged personnel action in the absence of the 

appellant’s protected disclosures. See, e.g., RID at 11, 13 (noting, inter alia, that 

the appellant refused to answer questions during an investigative inquiry into his 

conduct and that he was uncooperative, and that the proposing and deciding 

officials did not have a strong motive to retaliate because their conduct was not

directly implicated by the appellant’s disclosures concerning the possible ULP 

charge). The record, however, also reflects that the deciding official was aware 

of the appellant’s allegation that the agency had committed a ULP before the 

agency proposed the appellant’s suspension, and that she also expressed 

skepticism about the appellant’s allegation of a ULP prior to rendering a decision 

on his proposed suspension. See RAF, Tab 31 at 127 (deciding official’s 

statement to the OIG that the appellant’s allegation of a ULP “is unfounded and 

not credible”). We note, moreover, that the agency’s decision to suspend the 

appellant was rendered after the appellant made his protected disclosures to the 

Regional Commissioner and the OIG, and the fact that the agency had begun its 

investigation into the appellant’s conduct prior to his disclosures does not negate 

the possibility that the decision to suspend him was based upon his protected 

whistleblowing. See RID at 13.

¶9 The administrative judge is in the best position to consider all of the 

evidence, render any necessary credibility determinations, and reissue an initial 

decision addressing whether the agency can establish by clear and convincing 

evidence that it would have taken the same personnel action in the absence of the 

appellant’s protected disclosures. See, e.g., Mithen v. Department of Veterans 

Affairs, 119 M.S.P.R. 215, ¶ 19 (2013) (remanding the case to the administrative 

judge for an assessment of the clear and convincing issue, including rendering 

credibility determinations); Massie v. Department of 

Transportation, 118 M.S.P.R. 308, ¶¶ 7-8 (2012) (remanding the case for 

consideration of the evidence as a whole under Whitmore). Although the 
8

administrative judge has already held a hearing in this case, we find that the 

administrative judge should provide the appellant with the option of requesting a 

supplemental hearing, and after considering all of the evidence and rendering any 

necessary credibility determinations, the administrative judge should reissue her 

initial decision addressing whether the agency can establish by clear and 

convincing evidence that it would have suspended the appellant for 14 days in the 

absence of his protected disclosures. See Durr v. Department of Veterans 

Affairs, 119 M.S.P.R. 195, ¶ 18 (2013) (remanding case and providing the 

appellant the option of requesting a supplemental hearing).

ORDER

For the reasons discussed above, we REMAND this case to the regional 

office for further adjudication in accordance with this Remand Order.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board