UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BETTY WILLIAMS NORWOOD,

Appellant,

v.

SMALL BUSINESS 

ADMINISTRATION,

Agency.

DOCKET NUMBER

DC-1221-13-0830-W-1

DATE: February 15, 2023

THIS ORDER IS NONPRECEDENTIAL1

James A. Westbrooks, Fort Washington, Maryland, for the appellant.

Nathania Bates, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

REMAND ORDER

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

denied her request for corrective action under the Whistleblower Protection Act 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

(WPA).

2

 For the reasons set forth below, we GRANT the petition for review. We 

VACATE the administrative judge’s findings that the appellant exhausted only 

one disclosure and that it was not protected or a contributing factor in the 

agency’s decision to take a personnel action against her, and the administrative 

judge’s alternate finding that the agency proved by clear and convincing evidence 

that it would have taken that action absent the appellant’s protected disclosure. 

We REMAND the case to the regional office for further adjudication in 

accordance with this Remand Order. 

BACKGROUND

¶2 The appellant was employed as an Audit Manager in the U.S. Small 

Business Administration (SBA) Office of Inspector General (OIG). Sometime in 

or after October 2010, the appellant developed concerns about a March 2010 audit 

report that had been the subject of testimony to Congress and which she believed 

contained omissions and several inaccuracies. 3 Initial Appeal File (IAF), Tab 24 

at 28-29. The appellant alleges having disclosed this information to a manager in 

the Credit Programs Group (CPG), the Assistant Inspector General for Auditing 

(AIGA), and the Deputy Inspector General who responded with “we will reissue 

the report.” Id. at 29. However, the manager, after being promoted in early 2011 

to Director of the CPG, decided not to reissue the report. Id. 

¶3 The appellant subsequently expressed concerns to the CPG Director about 

the sufficiency of evidence in a 2012 audit report4and her beliefs about the 2010 

 

2

The WPA was amended by the Whistleblower Protection Enhancement Act of 2012, 

Pub. L. No. 112-199, 126 Stat. 1465, which took effect on December 27, 2012. 

3

SBA OIG Audit Report No. 10-10, Audit of Premier Certified Lenders in the 

Section 504 Loan Program. 

4

The 2012 report, referenced by the appellant as the “High-Risk Lenders report,” 

appears most likely to have been SBA OIG Audit Report No. 12-20, Addressing 

Performance Problems of High-Risk Lenders Remains a Challenge for the Small 

Business Administration. See IAF, Tab 24 at 25-26. 
3

report. Id. at 7, 25-26. The appellant shared her concerns the next day with the 

AIGA and met with the Inspector General on March 27, 2012, to discuss her

concerns and to request reassignment under a different first-line supervisor. Id. 

at 25-26. She followed up with a letter to the Inspector General, recounting her 

history of disclosures regarding both audit reports, disclosing that the CPG 

Director had bragged that the Deputy Inspector General had preselected her as 

Director and moved the duty station in the Director vacancy listing from agency 

headquarters to a field office location purely for the Director’s benefit, and 

alleging that the CPG Director approved a nearly $1 million payment to a 

contractor to review loans, only to later have the work entirely redone by her own 

staff. Id. at 25-30. 

¶4 In July 2012, the appellant met with an Equal Employment Opportunity 

(EEO) counselor to allege that the CPG Director had subjected her to harassment 

since September 2011 because of her race, sex, and age. IAF, Tab 10 at 67-73. 

Following an unsuccessful mediation, id. at 72, the appellant filed a formal EEO 

complaint naming the CPG Director, the AIGA, the since-retired Deputy 

Inspector General, and the Inspector General. IAF, Tab 11 at 64-82. 

¶5 Meanwhile, the appellant sent an email to officials in the U.S. Congress, the 

Office of Government Ethics, and the Council of Inspectors General on Integrity 

and Efficiency (CIGIE), repeating the disclosures that favoritism towards the 

CPG Director had resulted in her change of duty station to a field office, the 

decision not to retract the deficient March 2010 audit report, and the waste of 

nearly $1 million. IAF, Tab 1 at 25-28. She further alleged that because of the 

favoritism, the field office where the CPG Director worked had been allowed to 

remain open when the agency’s three other field offices were closed in 

October 2011. Id. at 26. She raised similar allegations in a separate email to the 

President. IAF, Tab 10 at 35-38. 

¶6 By letter dated September 25, 2012, the CIGIE Integrity Committee 

informed the appellant that it lacked jurisdiction to address the allegations raised 
4

in her email because they did not appear to involve the actions of either the 

Inspector General herself, an individual who reported directly to the Inspector 

General, or a person whose position had been designated by the Inspector 

General. IAF, Tab 1 at 33. The appellant responded by letter in November 2012 

asserting that the Inspector General, the Deputy Inspector General, the Counsel to 

the Inspector General, and the AIGA were all implicated in the actions she had 

described. Id. at 34-35, 40-41. She also alleged, inter alia, that the Inspector 

General was responsible for systemic race and age discrimination, id. at 36-38, 

and that both the Inspector General and the AIGA had placed sensitive loan 

information at risk, id. at 39. 

¶7 Responding by letter to the CIGIE Integrity Committee a month later, the 

appellant forwarded a copy of an email exchange between the CPG Director and

the AIGA that had been copied to several other staff members. Id. at 20. The 

email conveyed the Director’s message that she was working in a back office in 

headquarters that day, and the AIGA responded with a symbol denoting a wink

(“;-)”). Id. at 21. The appellant reported that several staff members had told her 

that the AIGA’s message was inappropriate and made them feel uncomfortable. 

Id. at 20. After the CIGIE Integrity Committee informed the appellant that the 

matter fell outside its jurisdiction, id. at 23, she reported the AIGA’s email to 

members of Congress, id. at 24. 

¶8 During a December 2012 meeting between the CPG Director and the 

appellant to discuss the appellant’s performance during the prior fiscal year, the 

CPG Director told the appellant that she had received negative feedback from 

other employees about the appellant’s communication and collaboration. On 

January 2, 2013, the appellant asked the CPG Director by email to identify the 

source of the negative feedback. The CPG Director responded with the names of 

two offices within SBA. IAF, Tab 10 at 84-85. 

¶9 Five days later the appellant sent an email to several officials in the offices 

identified by the CPG Director, with copies to the AIGA and the CPG Director, in 
5

which she apologized “for any dialogue (verbal or written) that I exchanged or 

actions that I took during FY 2012 that resulted in your perception of me as 

negative or obstructionist.” Id. at 94. She asked for their forgiveness as well as 

“any suggestions that will make for a more collaborative working relationship in 

FY 2013 and beyond.” Id. Having received no response, the appellant sent 

another email a week later in which she also requested “details about the specific 

dialogue and actions that I took in FY 2012 that left you feeling like you did not 

want to work with me.” Id. at 104-05. The day after the appellant’s second 

email, the AIGA informed her that her emails might raise an issue of auditor 

independence and/or objectivity. Id. at 107. He stated that he was seeking 

clarification from the Auditing Standards Group at the Government 

Accountability Office (GAO) regarding those issues, and he directed her not to 

send any further emails on the matter. Id. at 107. 

¶10 The AIGA presented his concerns regarding the appellant’s independence 

and objectivity to GAO. Id. at 113-14. In a telephone conversation that was later 

confirmed in writing, an official from the GAO Auditing Standards Group 

advised the AIGA that, while the appellant’s emails were inappropriate, they did

not violate the Government Auditing Standard for Independence for either current 

or past auditing work. Id. at 125. However, the GAO official advised the AIGA 

that the appellant should not be assigned future work with the offices that 

received her emails because management in those offices could perceive the 

emails as threatening or intimidating. Id. On February 4, 2013, the AIGA

informed the appellant that going forward, she was not to conduct any audit work 

involving the Office of Credit Access or its subordinate organizations. IAF, 

Tab 1 at 53. 

¶11 In the meantime, in January 2013, the appellant had forwarded her 

correspondence with CIGIE to the congressional committees with jurisdiction 

over the inspector general system. Id. at 24. The appellant also filed a complaint 

with the Office of Special Counsel (OSC) on February 13, 2013, in which she 
6

alleged retaliation for whistleblowing, citing the AIGA’s decision to restrict her 

ability to perform certain audit work as an act of retaliation. IAF, Tab 11 

at 44-59. 

¶12 In April 2013, OSC informed the appellant of its initial determination to 

close its file regarding her complaint. IAF, Tab 1 at 89. In a written response to 

OSC’s determination that she had not provided enough specific information 

regarding her disclosures, the appellant argued that her November 2012 letter to 

the CIGIE Integrity Committee and her January 2013 letters to members of 

Congress constituted protected activity under 5 U.S.C. § 2302(b)(9). Id. at 14. 

She also alleged that the AIGA’s actions restricting her audit responsibilities 

violated 5 U.S.C. § 2302(b)(12). Id. at 16. By letter dated May 24, 2013, OSC 

informed the appellant that her response had not provided a sufficient basis to 

alter its initial determination to close its file, and also informed her of her right to 

seek corrective action from the Board. IAF, Tab 11 at 60-63. 

¶13 The appellant remained in her position and continued performing other 

audit work. IAF, Tab 13 at 20. In June 2013, following the departure of another 

Audit Manager, the AIGA reassigned the appellant to serve in the same position 

in an audit group for which she was not prevented from performing any audit 

work within the group’s jurisdiction. Id.; IAF, Tab 11 at 99. 

¶14 The appellant filed this individual right of action (IRA) appeal on July 7,

2013. IAF, Tab 1. She initially requested a hearing, id. at 2, but later withdrew 

that request, IAF, Tab 26, Initial Decision (ID) at 1. The administrative judge 

issued an initial decision based on the written record. 

¶15 In her initial decision, the administrative judge found that the appellant 

established having exhausted her administrative remedies as to only one of her 

alleged disclosures, i.e., that OIG allowed an erroneous audit report to be 

published on its website, but that she failed to show that she had provided OSC 

with sufficiently clear and precise information about her remaining disclosures to 

establish exhaustion. ID at 11. The administrative judge further found that the 
7

appellant nonfrivolously alleged that her disclosure was protected and that it was 

a contributing factor in the AIGA’s decision to restrict the scope of the audit 

work the appellant could perform beginning in February 2013, and that therefore 

the appellant had established Board jurisdiction over her IRA appeal. ID 

at 10-12. However, on the merits of the appeal, the administrative judge found 

that the appellant failed to prove by preponderant evidence that her audit report 

disclosure was protected or that it was a contributing factor in the personnel 

action at issue. ID at 13-15. The administrative judge further found that the 

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

same action absent the appellant’s disclosure. ID at 15-17. Accordingly, the 

administrative judge denied the appellant’s request for corrective action. 5 ID 

at 17. 

¶16 The appellant filed a timely petition for review of the initial decision, in 

which she challenges several of the administrative judge’s factual findings. 

Petition for Review (PFR) File, Tab 1 at 5-11. She argues that the administrative 

judge failed to properly consider additional disclosures, id. at 11-14, and she 

challenges the administrative judge’s findings that she failed to prove that her 

disclosure was protected or that it was a contributing factor in the personnel 

action, id. at 14-15. Finally, the appellant challenges the administrative judge’s 

finding that the agency proved by clear and convincing evidence that it would 

have taken the personnel action absent her disclosure. Id. at 15-17. The agency 

has responded in opposition to the petition for review, PFR File, Tab 3, and the 

appellant has filed a reply, PFR File, Tab 4. 

 

5 Although the order language at the end of the initial decision indicates that the IRA 

appeal was dismissed, ID at 18, it is apparent from the administrative judge’s finding of 

jurisdiction that the actual disposition of the appeal was a denial of the appellant’s 

request for corrective action on the merits. 
8

ANALYSIS6

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

exhausted administrative remedies before OSC and makes nonfrivolous 

allegations that: (1) she 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). In an IRA appeal, the 

standard for establishing subject matter jurisdiction and the right to a hearing is 

an appellant’s merely asserting a nonfrivolous claim, while the standard for 

establishing a prima facie case is that of preponderant evidence. Langer v. 

Department of the Treasury, 265 F.3d 1259, 1265 (Fed. Cir. 2001). When an 

appellant meets her burden to establish a prima facie case of reprisal for 

whistleblowing, the burden shifts to the agency to prove by clear and convincing 

evidence that it would have taken the same personnel action(s) absent the 

appellant’s whistleblowing. Scoggins v. Department of the Army, 123 M.S.P.R. 

592, ¶ 26 (2016). 

The appellant fully exhausted all her claims before OSC and established the 

Board’s jurisdiction over her appeal. 

¶18 The Board has recently clarified the substantive requirements of exhaustion. 

Chambers v. Department of Homeland Security, 2022 MSPB 8, ¶¶ 10-11. The 

requirements are met when an appellant has provided OSC with sufficient basis to 

pursue an investigation. The Board’s jurisdiction is limited to those issues that 

have been previously raised with OSC. However, an appellant may provide a 

more detailed account of whistleblowing activities to the Board than she did to 

OSC. An appellant may establish exhaustion through her initial OSC complaint, 

evidence that she amended the original complaint, including but not limited to 

 

6 We have reviewed the relevant legislation enacted since the filing of this appeal and 

find that it does not impact the outcome. 
9

OSC’s determination letter and other letters from OSC referencing any amended 

allegations, and the appellant’s written responses to OSC referencing the 

amended allegations. An appellant may also establish exhaustion through other 

sufficiently reliable evidence, such as an affidavit or declaration attesting that the 

appellant raised with OSC the substance of the facts in the Board appeal. Id. 

¶19 Here, while the administrative judge correctly found that the appellant 

established exhaustion before OSC regarding her disclosure of the erroneous audit 

report, the administrative judge further found that the appellant “failed to show 

that she provided OSC with sufficiently clear and precise information about her

remaining disclosures.” ID at 11. The administrative judge recognized that OSC 

acknowledged receiving additional information in response to its initial 

determination, but she found that the appellant failed to establish what that 

additional information comprised. ID at 7. However, it appears that the appellant 

included with her initial MSPB appeal copies of her additional disclosures as 

attachments to her response to OSC’s initial determination. IAF, Tab 1 at 12, 

17-45. We find that the appellant’s submissions were adequate to provide OSC 

with a sufficient basis to pursue an investigation. Accordingly, we find that the 

appellant fully exhausted all her claims before OSC. 

¶20 We agree with the administrative judge that the appellant nonfrivolously 

alleged that she made at least one protected disclosure that was a contributing 

factor in the challenged personnel action. ID at 11-12. Accordingly, the 

administrative judge properly found that the appellant established jurisdiction 

over her IRA appeal. 

The appellant established that she made protected disclosures. 

¶21 On the merits of the appellant’s reprisal claims, the administrative judge

found that the appellant failed to establish either that her disclosures about the 

erroneous 2010 audit report were protected or that they were a contributing factor 

in the AIGA’s decision to restrict the scope of the appellant’s audit work 

beginning in February 2013. ID at 12-15. Having found that the appellant failed 
10

to exhaust her administrative remedies as to her other disclosure s, the 

administrative judge did not address those disclosures on the merits. 

¶22 In considering whether the disclosures about the deficient 2010 audit report 

were protected, the administrative judge found that the appellant did not establish 

by preponderant evidence that she reasonably believed that her disclosures 

evidenced any violation of any law, rule, or regulation; or gross mismanagement, 

a gross waste of funds, an abuse of authority, or a substantial and specific danger 

to public health or safety. ID at 13-14; see 5 U.S.C. § 2302(b)(8)(A). In part, the 

administrative judge relied on the Department of Transportation (DOT) OIG 

employees’ finding that the 2010 report at issue in this appeal did not need to be 

recalled and reissued. ID at 13. However, any such finding by the DOT OIG is

not dispositive of whether the appellant’s initial belief—that posting an erroneous 

report constituted a rule violation—was reasonable. IAF, Tab 24 at 7. As SBA’s

OIG itself noted in its pleadings, its audits must “comply with standards 

established by [GAO’s] Comptroller General.” Id. at 10. We find that the GAO

audit standards constitute “rules” for the purposes of 5 U.S.C. § 2302(b)(8). A 

central pillar of the GAO auditing standards is reducing “the risk that auditors 

will not detect a mistake, inconsistency, significant error, or fraud in the evidence 

supporting the audit,” and “[a]uditors should determine the overall sufficiency 

and appropriateness of evidence to provide a reasonable basis for the findings and 

conclusions[.]” GAO, Government Auditing Standards, GAO-12-331G, ch. 6, 

¶¶ 6.05, 6.69 (Dec. 2011), https://www.gao.gov/assets/gao-12-331g.pdf.

Additionally, SBA’s OIG has its own audit policies, which we find also constitute 

“rules” for the purposes of 5 U.S.C. § 2302(b)(8). IAF, Tab 1 at 77. 

¶23 Moreover, that SBA OIG engaged DOT OIG for a “special quality 

assessment review” through the lens of its 2010 auditing policies and procedures

indicates that the appellant’s concerns were not unreasonable. IAF, Tab 24 at 7, 

20-21, 31-32. That the appellant’s disclosures regarding the report resulted in 

remedial revisions to the SBA OIG’s audit process further highlights the 
11

significance of the issues she raised. Id. at 20-21, 32. Furthermore, the appellant 

alleged that the SBA OIG had provided misleading testimony to Congress based 

on the report. Id. at 28-29. The same criminal statute prohibiting “materially 

false, fictitious, or fraudulent statement[s] or representation[s]” to OIG 

employees, or “falsif[ying], conceal[ing], or cover[ing] up by any trick, scheme, 

or device a material fact,” applies to OIG employees themselves—both in their 

reports and their appearing before Congress.

7

18 U.S.C. § 1001(a). We therefore 

find that the appellant established by preponderant evidence that a reasonable 

person could believe—particularly prior to receiving the results of the DOT OIG 

review—that her disclosures about the audit reports evidenced a violation of law, 

rule, or regulation, and that those disclosures were thereby protected.

8

 

Remand is necessary to determine if the appellant has established that her 

protected disclosures were a contributing factor in the agency’s taking a covered 

personnel action against her. 

¶24 The term “contributing factor” means any disclosure that influences an 

agency’s decision to threaten, propose, take, or not take a personnel action 

regarding the individual making the disclosure. Usharauli v. Department of 

Health and Human Services, 116 M.S.P.R. 383, ¶ 31 (2011); 5 C.F.R. 

§ 1209.4(d). The most common way of proving the contributing factor element is 

the “knowledge/timing test.” Chavez v. Department of Veterans Affairs, 

120 M.S.P.R. 285, ¶ 27 (2013). Under that test, an appellant can prove that a 

disclosure was a contributing factor in a personnel action through evidence that 

the official taking the personnel action knew of the whistleblowing disclosure and 

took the personnel action within a period of time such that a reasonable person 

 

7

Significantly, whether the 2010 report needed to be recalled appears to have hinged on 

whether the omissions and inaccuracies were “material” to the report’s findings and 

recommendations. IAF, Tab 24 at 20, 31-32. 

8 With this finding, we need not decide whether the appellant’s subsequent disclosures 

to CIGIE and to Congress, which took place after the DOT OIG review found it 

unnecessary to reissue the 2010 report, were protected. 
12

could conclude that the disclosure was a contributing factor in the personnel 

action. Id. Satisfying the knowledge/timing test demonstrates that a protected 

disclosure was a contributing factor in a personnel action. Gonzalez v. 

Department of Transportation, 109 M.S.P.R. 250, ¶ 20 (2008). 

¶25 The appellant indicated in her OSC complaint that the AIGA knew about 

her disclosures to CIGIE and Congress through the Inspector General. IAF, 

Tab 11 at 57-58. The Inspector General declared under penalty of perjury that 

she learned of allegations to the CIGIE Integrity Committee based on a letter 

from the committee, but that it did not identify the individual who made the 

allegations. IAF, Tab 24 at 33. The AIGA declared under penalty of perjury that 

he was not aware of the appellant’s disclosures until she appealed to the Board. 

IAF, Tab 13 at 20. The administrative judge found that the appellant failed to 

prove that anyone who was involved in the personnel action was aware of her 

disclosures before that action was taken. ID at 14-15. On review, the appellant 

argues that both the Inspector General and the AIGA must have known about her 

disclosures earlier, in part because they were both heavily involved in CIGIE 

activities. PFR File, Tab 1 at 15. She also argues that the Inspector General must 

have known about her disclosures to Congress because the Inspector General was 

“confirmed by Congress.” Id. However, there is no evidence that either official 

was involved in the CIGIE Integrity Committee to which the appellant made her 

disclosures, nor is there evidence that anyone who was involved in CIGIE 

activities necessarily would have been aware of those disclosures. Similarly, 

there is no evidence that Congress would have shared the appellant’s disclosures 

with the Inspector General simply because she had been confirmed. 

¶26 Nevertheless, the aforementioned communications outside of the appellant’s 

agency were not her first disclosures about the deficiencies in the 2010 audit 

report. Specifically, the appellant’s interactions with the CPG Director on the 

issue began in 2011. IAF, Tab 24 at 29. As recounted by the administrative 

judge, the appellant alleged having shared her concerns with the CPG Director 
13

and the AIGA at least as early as February 2012. ID at 4; IAF, Tab 24 at 25-26. 

Subsequently, the appellant met with the Inspector General to discuss the 

allegedly deficient audits and other concerns, and she followed up with a letter. 

IAF, Tab 24 at 25; ID at 4. Overall, as the SBA OIG acknowledges in its 

pleadings, the agency “was well aware of Appellant’s concerns prior to her 

disclosure of the same concerns to the CIGIE Integrity Committee.” IAF, Tab 24 

at 20. Accordingly, we find that the appellant did in fact put her supervisors on 

notice of her disclosures about deficient audits. We further find that the 

personnel action that the agency took on February 4, 2013—that is, the AIGA’s 

decision informing the appellant that she was no longer to conduct any audit work 

involving the Office of Credit Access or its subordinate organizations—occurred 

within a period of time such that a reasonable person could conclude that the 

appellant’s protected disclosures were a contributing factor in that personnel 

action. Thus, we find that, under the knowledge/timing test, the appellant 

established that her disclosures regarding the erroneous audit report were a 

contributing factor in the personnel action taken against her. Mastrullo v. 

Department of Labor, 123 M.S.P.R. 110, ¶¶ 18, 21 (2015). 

¶27 The final hurdle to the appellant’s establishing a prima facie showing of 

retaliation for whistleblowing is to prove that the agency’s action is a covered 

personnel action. As is relevant here, a “personnel action” is defined under the 

WPA as a significant change in duties, responsibilities, or working conditions. 

5 U.S.C. § 2302(a)(2)(A)(xii). As noted, the personnel action at issue is the 

agency’s decision that the appellant was not to conduct any further audit work 

involving the Office of Credit Access or its subordinate organizations. 

¶28 To meet the burden of proof in this regard, the appellant must provide 

sufficient information and evidence for the Board to determine whether the 

agency’s alleged action or actions were “significant.” See Shivaee v. Department 

of the Navy, 74 M.S.P.R. 383, 388-89 (1997). The Board has recently clarified 

this requirement, stating that only agency actions that, individually or 
14

collectively, have practical and significant effects on the overall nature and 

quality of an employee’s working conditions, duties, or responsibilities will be 

found to constitute a covered personnel action under section 2302(a)(2)(A)(xii). 

Skarada v. Department of Veterans Affairs, 2022 MSPB 17, ¶ 16. 

¶29 The administrative judge failed to make a finding on this issue. Given the 

Board’s recently-issued guidance and the findings we have made above, we deem

it appropriate to remand this case to allow the administrative judge to determine 

if the appellant has established that she suffered a significant change in duties, 

responsibilities, or working conditions when, beginning on February 4, 2013, the 

agency restricted her ability to perform certain audit work.

9

 If, on remand, the 

administrative judge finds that the appellant has failed to establish that she 

suffered a covered personnel action under section 2302(a)(2)(A)(xii), the 

administrative judge shall issue a new initial decision denying corrective action. 

If, however, the administrative judge finds that the appellant does make such a 

showing, thereby establishing a prima facie case of whistleblower retaliation, the 

administrative judge must then determine if the agency has established by clear 

and convincing evidence that it would have taken the same personnel action 

absent the appellant’s protected disclosures. 10 Scoggins, 123 M.S.P.R. 592, ¶ 28. 

 

9

The administrative judge may, in her discretion, allow the parties to present further 

documentary evidence on this issue. 

10 If necessary, the administrative judge shall consider whether the additional 

disclosures we have found were exhausted with OSC, including inappropriate behavior 

by the AIGA, were protected and a contributing factor to the covered personnel action. 
15

ORDER

¶30 The appeal is remanded for further adjudication in accordance with this

Order. 

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board