UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES THOMAS RYAN, DOCKET NUMBERS
Appellant, DC-1221-14-0323-W-1
DC-1221-14-0378-W-1
v. DC-1221-14-0434-W-1
DC-1221-14-0700-W-1
DEPARTMENT OF DEFENSE,
Agency.
DATE: February 4, 2016
THIS ORDER IS NONPRECEDENTIAL 1
James Thomas Ryan, Bel Air, Maryland, pro se.
Lundi McCarthy Shafiei, Esquire, and Steven J. Weiss, Esquire,
Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeals for lack of jurisdiction.
For the reasons discussed below, we GRANT the appellant’s petition for review,
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
VACATE the 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 Board has jurisdiction over an IRA appeal if the appellant has
exhausted his administrative remedies before the Office of Special Counsel
(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. E.g., Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed.
Cir. 2001). The key to determining whether an appellant has satisfied the
exhaustion requirement in an IRA appeal is whether he provided OSC with a
sufficient basis to pursue an investigation, not whether he correctly labeled the
category of wrongdoing; OSC can be expected to know which category of
wrongdoing might be implicated by a particular set of factual allegations.
Thomas v. Department of the Treasury, 77 M.S.P.R. 224, 236-37 (1998),
overruled on other grounds, Ganski v. Department of the Interior, 86 M.S.P.R.
32, 37 (2000). Moreover, there is no statutory jurisdictional requirement that a
whistleblower disclosure be made with such specificity as to enable the recipient
of the disclosure to conduct an investigation without having to return to the
employee for additional information; rather, the statute provides simply that it is
a prohibited personnel practice to take a personnel action against an employee for
any disclosure of information that the employee reasonably believes evidences
any of the improper behavior described under the statute. Keefer v. Department
of Agriculture, 82 M.S.P.R. 687, ¶ 13 (1999).
¶3 Once an appellant has established exhaustion of his administrative remedies
before OSC, he may establish Board jurisdiction over his IRA appeal by making
nonfrivolous allegations that he made a protected disclosure and that the
disclosure was a contributing factor in the agency’s decision to take a personnel
3
action. Peterson v. Department of Veterans Affairs, 116 M.S.P.R. 113, ¶ 8
(2011). The Board recently revised its regulations to define a nonfrivolous
allegation as one that: (1) is more than conclusory; (2) is plausible on its face;
and (3) is material to the legal issues in the appeal. 5 C.F.R. § 1201.4(s). After
an appellant establishes jurisdiction over his IRA appeal, he is entitled to a
hearing on the merits of his claim. Id.
¶4 To establish that the appellant had a reasonable belief that a disclosure met
the criteria of 5 U.S.C. § 2302(b)(8), he need not prove that the condition
disclosed actually established a regulatory violation or any of the other situations
detailed under 5 U.S.C. § 2302(b)(8)(A)(ii); rather, he must show that the matter
disclosed was one which a reasonable person in his position would believe
evidenced any of the situations specified in 5 U.S.C. § 2302(b)(8). E.g., Garst v.
Department of the Army, 60 M.S.P.R. 514, 518 (1994). The proper test for
determining whether an employee had a reasonable belief that his disclosures
revealed misconduct prohibited under the Whistleblower Protection Act (WPA),
is this: Could a disinterested observer with knowledge of the essential facts
known to and readily ascertainable by the employee reasonably conclude that the
actions of the Government evidence wrongdoing as defined by the WPA?
Lachance v. White, 174 F.3d 1378 (Fed. Cir. 1999). Although the Board
generally will resolve any doubt or ambiguity as to whether an appellant has
made a nonfrivolous allegation in favor of affording him a hearing, “an
appellant’s statements regarding his alleged protected disclosures can be so
defective on their face that the Board will find that they fail to constitute a
nonfrivolous allegation of a reasonable belief, and thus require dismissal for lack
of jurisdiction.” Sinko v. Department of Agriculture, 102 M.S.P.R. 116, ¶ 17
(2006) (reporting unsubstantiated rumors does not satisfy the reasonable belief
requirement).
¶5 In his initial decision on these consolidated IRA appeals, the administrative
judge set forth a comprehensive chronological iteration of the appellant’s alleged
4
protected disclosures, culled from his numerous OSC complaints and updates
thereto. MSPB Docket No. DC 1221-14-0323-W-1, Initial Appeal File (IAF),
Tab 44, Initial Decision (ID) at 3-4. 2 The administrative judge found that none of
the appellant’s purportedly protected disclosures, identified as two in May 2012,
one in December 2012, two in January 2013, two in April 2013, one in
May 2013, ID at 4, reasonably evidenced wrongdoing as defined by the WPA or
the Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L.
No. 112-199, ID at 6-17. 3 The administrative judge also found that the appellant
failed to exhaust his administrative remedies before OSC regarding his purported
January 4, 2013 disclosure because the record showed that the appellant failed to
provide OSC with any details in support of his vague assertions that he had
suffered either an actual or a threatened assault. ID at 8-9. Nevertheless, the
administrative judge went on to find that, even if the appellant had demonstrated
exhaustion for that particular claim, the documentation he submitted did not
evidence a reasonable belief that his disclosures evidenced a violation of law. Id.
Similarly, the administrative judge found that the appellant failed to demonstrate
OSC exhaustion regarding his April 2013 disclosures and that, even assuming that
the appellant had done so, his own documentation again showed that his
2
Because all of the appellant’s IRA appeals “arise from the same or related underlying
events, and involve aspects of the same whistleblowing claim,” the administrative judge
consolidated the instant IRA appeal (IAF) with the appellant’s three other separately
filed IRA appeals: MSPB Docket No. DC-1221-14-0700-W-1, Initial Appeal File
(0700 IAF); MSPB Docket No. DC-1221-14-0378-W-1, Initial Appeal File (0378 IAF);
and MSPB Docket No. DC-1221-14-0434-W-1, Initial Appeal File (0434 IAF). ID at 2
n.1. The appellant has challenged the administrative judge’s consolidation of these
appeals, “because there is to [sic] much to include in a PFR.” Petition for Review
(PFR) File, Tab 3 at 5. The record reflects that the Clerk of the Board rejected the
appellant’s request to exceed the page limits for a petition for review. PFR File, Tab 2.
Based on the reasons set forth in both the initial decision and the Clerk’s order, we find
no error in these actions.
3
In his analysis, the administrative judge at times ascribes an incorrect year (i.e., 2014
instead of 2013) to a particular purported disclosure. See, e.g., ID at 7. This minor
error does not affect the substantive analysis of the alleged disclosures at issue.
5
purported disclosures were not protected because “such a routine workplace
exchange does not reasonably evidence a violation of law or any other condition
covered by 5 U.S.C. § 2302(b)(8).” ID at 8, 11-12.
¶6 In his petition for review, the appellant generally challenges the
administrative judge’s determination that he failed to nonfrivolously allege that
he made a protected disclosure. Petition for Review (PFR) File, Tab 3. The
appellant argues that the administrative judge misconstrued the evidence and
should have provided him with additional instructions “specifically identifying
what precision, detail, or other aspect of the disclosures was lacking.” Id. at 8.
In that regard, the appellant observed that “OSC did not ask me for any additional
information, or state they [sic] did not have enough information to conduct an
investigation” and he contends that the reasonableness of his disclosures is not a
jurisdictional question, but rather, a matter for hearing. Id. Nevertheless, as
noted above, the record reflects that the administrative judge gave the appellant
appropriate notice of the elements and burdens he must meet to establish
jurisdiction over his IRA appeals. E.g., IAF, Tab 3.
¶7 As the following discussion indicates, we agree with most of the
administrative judge’s determinations, and invite him to reaffirm those findings
on remand, but we find that the appellant has established OSC exhaustion and
made the requisite nonfrivolous allegations such that he should receive a hearing
on the merits regarding his January 4 and April 5, 2013 disclosures.
The administrative judge properly found that the appellant failed to establish
jurisdiction over his May 2012, December 2012, January 2, 2013, April 19, 2013,
and May 29, 2013 disclosures.
¶8 The administrative judge found that the appellant’s May 2012 disclosures,
in which the appellant alleged that he disclosed the fact that his coworker’s radio
had malfunctioned, leaving the coworker momentarily out of contact, involved
workplace friction over routine matters and therefore did not constitute a
nonfrivolous allegation of a reasonable belief of a violation of law, threat to
6
public safety, abuse of discretion, or gross mismanagement. ID at 4-6. In his
petition for review, the appellant argues that the delay in communication caused
by the radio malfunction “was infinite, not momentary” and could have been
catastrophic. PFR File, Tab 3 at 9-11. He explains that he made the disclosure
because “he was unable to convince” the officer whose radio malfunctioned of the
urgency of the situation. Id. at 11. He further claims that his superior officer,
who also failed to share the appellant’s sense of urgency, created yet another
substantial and specific threat to public safety by failing to correct the condition,
and he abused his authority both by denigrating the appellant’s concerns and by
counseling the appellant for his behavior. Id. We disagree. The administrative
judge correctly noted that such workplace friction over routine matters is not
properly the subject of a protected disclosure. ID at 6. Moreover, the fact that a
single officer’s radio may have malfunctioned simply does not represent a
substantial and specific threat to public safety. See, e.g., Chambers v.
Department of the Interior, 515 F.3d 1362, 1368-69 (Fed. Cir. 2008) (explaining
that a disclosed danger is sufficiently substantial and specific when it is likely to
occur in the near future and the potential consequences are great).
¶9 Regarding the appellant’s alleged December 2012 disclosure that his
colleague had violated Virginia law by having loaded unsecured firearms in a
home with children, we agree with the administrative judge’s finding that the
appellant’s speculation, based primarily on his colleague’s purported boast of
having “firearms hidden all over his house with one in the chamber ready to go,”
and the appellant’s unsupported assumptions about the officer in question, were
insufficient to constitute a nonfrivolous allegation of a reasonable belief that
anything improper or illegal had occurred. ID at 6-7 (citing Ramos v. Department
of the Treasury, 72 M.S.P.R. 235, 240-41 (1996)). The appellant’s assertions on
review that, among other things, the colleague involved has a personality
disorder, appears to have an inordinate fear of being attacked, and was hired
under inadequate screening practices, PFR File, Tab 3 at 12-14, lack support in
7
the record. Thus, we agree with the administrative judge that the appellant’s
mere speculation does not constitute a nonfrivolous allegation of a reasonable
belief that his alleged disclosure evidenced a violation of law. As stated above,
the appellant claims that the reasonableness of his disclosure is a matter for
hearing. Id. at 14. We disagree and find the appellant’s speculative allegations
so defective on their face that they fail to constitute a nonfrivolous allegation of a
reasonable belief. E.g., Sinko, 102 M.S.P.R. 116, ¶ 7; 5 C.F.R. § 1201.4(s).
¶10 Similarly, the administrative judge found that the appellant’s alleged
January 2, 2013 disclosure, that a colleague had engaged in conduct unbecoming
and exhibited emotionally unstable behavior because, among other things, the
colleague belonged to a motorcycle club for law enforcement officers and planned
to attend a biker rally, was “patently unreasonable.” ID at 7-8. In his petition for
review, the appellant reasserts his theory that his colleague engaged in conduct
unbecoming because he was planning to attend a prominent biker rally, “which is
known to be frequented by the criminal element,” and that the colleague was
emotionally unstable because, among other things, he once expressed his concern
about possibly losing his job. PFR File, Tab 3 at 15. He also asserts that this
information, along with his personal knowledge of a prior incident involving the
same colleague’s use of deadly force, and his training and experience as a law
enforcement officer, led him to make this disclosure “to protect myself, my
coworkers, and the public from a workplace violence threat.” Id. at 16-17. We
agree with the administrative judge that the sort of rank speculation necessary to
reach the appellant’s conclusion, on the basis of the information known or readily
ascertainable to him, is clearly outside the purview of an IRA appeal. Nothing
the appellant provides on review indicates that the administrative judge erred in
finding that the appellant’s speculation did not constitute a nonfrivolous
allegation of a protected disclosure.
¶11 The administrative judge found that the appellant failed to provide OSC
with sufficient detail regarding his alleged April 19, 2013 disclosure that a
8
colleague was interfering with agency functions but that, even if he had provided
OSC with sufficient detail to exhaust his administrative remedies, the appellant’s
“own supporting material again plainly reveals that it is not protected.” ID
at 11-12. In his petition for review, the appellant argues that the colleague
involved in this incident distracted him from the performance of his official
duties and that the alternative method that the colleague suggested for screening
jackets, along with the condescending behavior and unwanted physical contact of
his colleague, both violated agency policy and put the public at risk. PFR File,
Tab 3 at 24. The appellant does not address the administrative judge’s finding on
OSC exhaustion as to this claim, but we agree with the administrative judge that,
even assuming that the appellant established OSC exhaustion of this purported
disclosure, the routine workplace exchange the appellant described does not
reasonably evidence any condition covered by 5 U.S.C. § 2302(b)(8). ID
at 11-12. Moreover, the appellant’s hyperbolic assertion that his colleague’s
behavior in this incident put the public at risk, i.e., created a substantial and
specific threat to public safety, is without merit. See, e.g., Chambers, 515 F.3d
at 1368-69.
¶12 The appellant’s May 29, 2013 alleged protected disclosure involved the
aftermath of him submitting a signed complaint in which he accused a colleague
of being a habitual drunkard, and his receipt of a letter of reprimand charging him
with conduct unbecoming a Federal police officer when the subsequent
investigation revealed that his sole basis for the complaint at issue was that the
colleague in question told the appellant he liked to go to topless bars. ID
at 13-15 & n.5. In this episode, the appellant claimed that his supervisor sought
to intimidate him with physical force when issuing the letter of reprimand. ID
at 13 (citing 0700 IAF, Tab 1). Crediting the appellant’s description of his
supervisor’s actions, the administrative judge found the appellant’s assertion that
he was disclosing evidence of actual or imminent workplace violence based on
his supervisor’s anger “simply strains credulity.” ID at 15. We agree. What the
9
appellant describes is no more than stern discipline and does not constitute a
nonfrivolous allegation of a protected disclosure. ID at 13-14 (citing 0700 IAF,
Tab 10 at 14-15).
¶13 The administrative judge also found that none of the appellant’s conclusory
assertions about how numerous supervisors and agency colleagues had wronged
him by making false statements or improperly subjecting him to discipline
constituted nonfrivolous allegations of protected disclosures. ID at 15-16. In his
petition for review, the appellant offers a scattered criticism of the administrative
judge’s findings, but offers nothing other than his experience as a law
enforcement officer and the inferences that he alone draws from the evidence as
support for his assertions. PFR File, Tab 3 at 24-29. Thus, we agree with the
administrative judge that the appellant’s conclusory assertions regarding the
conflict he has sown with his colleagues and superiors do not constitute
nonfrivolous allegations of protected disclosures.
The appellant established jurisdiction over his January 4 and April 5, 2013
disclosures.
¶14 The appellant challenges the administrative judge’s finding that he failed to
provide sufficient details to OSC regarding his alleged January 4, 2013 disclosure
that a colleague had assaulted him. PFR File, Tab 3 at 17; ID at 8. In addition,
he appears to challenge the administrative judge’s finding that the appellant failed
to exhaust his administrative remedies regarding his April 5, 2013 disclosure, in
which he allegedly notified the Office of Professional Responsibility (OPR) of
two additional instances of assaultive behavior. PFR File, Tab 3 at 17; ID at 6.
For the following reasons, we find that the appellant established OSC exhaustion
and nonfrivolously alleged that these disclosures were protected and were a
contributing factor in the personnel actions at issue.
¶15 In his petition for review, the appellant cites a letter he provided to OSC
containing “detailed and precise disclosures” sufficient to meet his burden to
prove OSC exhaustion. PFR File, Tab 3 at 17; see 0700 IAF, Tab 8 at 13-24. In
10
the appellant’s letter, he described the nature of the alleged assaults that formed
the bases for these disclosures, named the individual who allegedly assaulted him,
and set forth the Virginia law that he believed his alleged assaulter had violated.
0700 IAF, Tab 8 at 14. Because OSC did not terminate its investigation into the
appellant’s complaint until September 29, 2014, see 0323 IAF, Tab 42 at 4, well
after his letter to OSC, we find that he exhausted his administrative remedies
regarding his January 4, 2013 and April 5, 2013 disclosures, see, e.g., Johns v.
Department of Veterans Affairs, 95 M.S.P.R. 106, ¶¶ 15-18 (2003) (stating that
proof of exhaustion need not be in the form of the appellant’s complaint to OSC;
the Board also will consider evidence of either written correspondence or oral
communication with OSC).
¶16 We further find that the appellant has nonfrivolously alleged that he had a
reasonable belief that these disclosures revealed, as noted above, violations of
law. Lewis v. Department of Commerce, 101 M.S.P.R. 6, ¶ 11 (2005) (discussing
that there is no de minimus exception for the violation-of-law aspect of the
protected disclosure standard). Unlike the speculative allegations discussed
above, the appellant had personal knowledge of the incidents at issue, and, as a
police officer, he was in a position to make a professional judgment that the
incidents he disclosed were assaults. See Schlosser v. Department of the Interior,
75 M.S.P.R. 15, 22 (1997).
¶17 Under the knowledge-timing test, an employee may demonstrate that a
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. 5 U.S.C. § 1221(e)(1); Peterson, 116 M.S.P.R.
113, ¶ 15. Once an appellant has made a nonfrivolous allegation that the
knowledge-timing test has been met, he has established the second element of a
jurisdictional showing under Yunus, that his disclosure was a contributing factor
11
in the agency’s decision to take or fail to take a personnel action. Wood v.
Department of Defense, 100 M.S.P.R. 133, ¶ 13 (2005).
¶18 The knowledge element of the test is evident from the agency’s May 7,
2013 letter of warning for conduct unbecoming, in which the appellant’s platoon
commander specifically referred to the appellant’s disclosure, i.e., the January 4,
2013 written complaint he submitted to the agency’s OPR, and also from the
appellant’s written response to the letter of warning. 0323 IAF, Tab 1 at 8-11.
Given the short amount of time between the appellant’s alleged disclosures in
January and April 2013 and the personnel actions at issue, nearly all of which
happened later that same year, we conclude that the appellant has met the
knowledge-timing test and that he therefore has nonfrivolously alleged that his
January 4 and April 5, 2013 disclosures were contributing factors to some degree
in most of the personnel actions at issue herein. 4 Accordingly, the appellant is
entitled to a hearing on the merits concerning those disclosures. See Rusin v.
Department of the Treasury, 92 M.S.P.R. 298, ¶ 20 (2002) (explaining that an
appellant is entitled to a hearing on the merits if she makes the required
nonfrivolous allegations of the elements of an IRA appeal).
4
Of the personnel actions noted by the administrative judge, ID at 1, only the May 29,
2012 letter of counseling, 0378 IAF, Tab 1 at 6, predates the alleged protected
disclosures at issue such that those disclosures could not have been a factor in that
personnel action. The remaining actions (i.e., the April 20, 2013 lowered performance
rating, 0323 IAF, Tab 38 at 3, 9-10; the May 7, 2013 letter of warning, 0323 IAF, Tab 1
at 7-8; the June 5, 2013 suspension of his police powers and the referral for a
fitness-for-duty examination, 0434 IAF, Tab 1 at 5, 7; the July 15, 2013 failure to
promote, 0323 IAF, Tab 37 at 3; and the October 30, 2013 fourteen-day suspension,
0700 IAF, Tab 1 at 7-13) are all dated after the appellant’s alleged protected January
and April 2013 disclosures and meet the knowledge-timing test.
12
ORDER
¶19 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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.