UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL J. JOHNEN, DOCKET NUMBER
Appellant, SF-1221-14-0338-W-2
v.
DEPARTMENT OF THE ARMY, DATE: September 2, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Wendy E. Musell, San Francisco, California, for the appellant.
David Michael Tucker and Douglas W. Hales, Fort Hunter Liggett,
California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in this individual right of action (IRA)
appeal. Generally, we grant petitions such as this one only when: the initial
decision contains erroneous findings of material fact; the initial decision is based
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative 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. 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, 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 and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
BACKGROUND
¶2 Effective April 13, 2008, the agency appointed the appellant as a
reemployed annuitant to a Supervisory Engineering Technician position with the
U.S. Army Installation Management Command, Directorate of Public Works
(DPW), at Fort Hunter Liggett (FHL) in California. Johnen v. Department of the
Army, MSPB Docket No. SF-1221-14-0338-W-1, Initial Appeal File (W-1 IAF),
Tab 4 at 18. On October 26, 2012, the appellant filed a complaint with the
Department of Defense Inspector General (IG) alleging that he was the subject of
a biased investigation during which agency employees made false statements
about him. W‑1 IAF, Tab 7 at 24-25. He further alleged that agency managers
failed to take action to address nepotism or discipline employees who spread
rumors about him. Id. On August 21 and 23, 2013, respectively, the agency
terminated the appellant from his position and barred him from FHL and its
subinstallations for 180 days. W‑1 IAF, Tab 4 at 14, 16, Tab 7 at 43. On
September 19, 2013, the appellant filed a complaint with the Office of Special
3
Counsel (OSC) alleging that the agency took these actions in reprisal for his IG
complaint. W‑1 IAF, Tab 7 at 35.
¶3 On February 12, 2014, the appellant filed this IRA appeal with the Board
and requested a hearing. W-1 IAF, Tab 1. On March 14, 2014, OSC closed its
file regarding his complaint. W-1 IAF, Tab 17 at 8-9. In response to the
administrative judge’s jurisdictional order, W-1 IAF, Tab 5 at 7, the appellant
alleged that the agency terminated him and subsequently barred him from FHL in
reprisal for his IG complaint and for telling FHL Commander D.W. during a
July 25, 2013 meeting attended by M.H., Deputy to the Garrison Commander, that
an agency official engaged in nepotism and retaliated against him for his efforts
to oppose her actions, W-1 IAF, Tab 7 at 1‑10.
¶4 Following a hearing, the administrative judge issued an initial decision
denying the appellant’s request for corrective action. Johnen v. Department of
the Army, MSPB Docket No. SF-1221-14-0338-W-2, Appeal File (W‑2 AF),
Tab 42, Initial Decision (ID) at 2, 17. The administrative judge found that the
appellant exhausted his administrative remedies before OSC regarding his
termination, the agency’s decision to bar him from FHL, and the disclosures in
his IG complaint about nepotism and individuals lying during agency
investigations. ID at 8. However, the administrative judge found that the
appellant did not exhaust his remedies before OSC regarding his July 25, 2013
disclosure and, therefore, the Board did not have jurisdiction over that disclosure.
ID at 9. The administrative judge also found that the Board had jurisdiction over
the appellant’s termination in this IRA appeal, but not over the agency’s decision
to bar him from FHL because that action occurred when he was no longer
employed by the agency. 2 ID at 9-11. Regarding the merits of his IRA appeal,
2
In the alternative, the administrative judge found that, even if the Board had
jurisdiction over the agency’s decision to bar the appellant from FHL, he was unable to
show that his protected activity was a contributing factor in that action because the
individual who decided to bar the appellant—D.W.—knew nothing of his IG complaint
4
the administrative judge found that the appellant failed to prove that his purported
protected activity 3 was a contributing factor in the agency’s decision to terminate
him. ID at 17.
¶5 The appellant has filed a petition for review challenging the administrative
judge’s evidentiary rulings, his jurisdictional findings, and his findings on the
merits of the appeal. Petition for Review (PFR) File, Tab 1. The agency has filed
a response in opposition to the appellant’s petition for review. PFR File, Tab 3.
The appellant has filed a reply to the agency’s response. PFR File, Tab 4.
ANALYSIS
The administrative judge correctly found that the appellant failed to exhaust his
administrative remedies before OSC regarding his purported disclosure of
July 25, 2013.
¶6 The Board has jurisdiction over an IRA appeal if the appellant exhausts his
administrative remedies before OSC and makes a nonfrivolous allegation that:
(1) he made a disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in
protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D);
and (2) the disclosure or protected activity was a contributing factor in the
agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C.
§ 2302(a). Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371
(Fed. Cir. 2001).
¶7 As to the exhaustion requirement, under 5 U.S.C. § 1214(a)(3), an employee
is required to “seek corrective action from [OSC] before seeking corrective action
when she made that decision and no one with knowledge of the complaint influenced
her decision. ID at 11 n.13.
3
The administrative judge did not make a finding as to whether the appellant’s
disclosures constituted protected activity under 5 U.S.C. § 2302(b)(8) or (b)(9)(C).
ID at 13. The administrative judge concluded that such a determination was
unnecessary given his finding that the appellant failed to establish that the disclosures
he made in his IG complaint were a contributing factor in the agency’s decision to
remove him. Id. (citing Carney v. Department of Veterans Affairs, 121 M.S.P.R. 446,
¶ 7 (2014), and Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 4 (2013)).
5
from the Board” through an IRA appeal. The Board’s jurisdiction is limited to
those disclosures of information and personnel actions that the appellant raised
before OSC. Coufal v. Department of Justice, 98 M.S.P.R. 31, ¶¶ 14, 18 (2004);
Sazinski v. Department of Housing & Urban Development, 73 M.S.P.R. 682, 685
(1997) (holding that the scope of an IRA appeal is limited to those disclosures
raised before OSC). An appellant may demonstrate exhaustion through his initial
OSC complaint, evidence that he amended the original complaint, including but
not limited to, 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. Mason v. Department of Homeland
Security, 116 M.S.P.R. 135, ¶ 8 (2011). To satisfy the exhaustion requirement, an
appellant must articulate to OSC the basis for his request for corrective action
“with reasonable clarity and precision.” Ellison v. Merit Systems Protection
Board, 7 F.3d 1031, 1037 (Fed. Cir. 1993); Ward v. Merit Systems Protection
Board, 981 F.2d 521, 526 (Fed. Cir. 1992). Although an appellant may add
further details to his claims before the Board, Briley v. National Archives &
Records Administration, 236 F.3d 1373, 1378 (Fed. Cir. 2001), he first must make
a reasonably clear and precise claim with OSC, e.g., Mintzmyer v. Department of
the Interior, 84 F.3d 419, 422 (Fed. Cir. 1996).
¶8 As previously noted, in response to the administrative judge’s jurisdictional
order, the appellant identified two protected disclosures: (1) his October 26,
2012 IG complaint; and (2) his notifying D.W. about nepotism during a July 25,
2013 meeting. W-1 IAF, Tab 7 at 1-3. The appellant submitted a copy of his
OSC complaint, id. at 31-39; his January 9, 2014 letter to OSC stating that the
decision to bar him from FHL was retaliation for his whistleblowing, W‑1 IAF,
Tab 32 at 471; and OSC’s March 14, 2014 letter informing the appellant of its
decision to close its file regarding his complaint. W-1 IAF, Tab 17 at 8-9. In his
OSC complaint, the appellant states that he was terminated in reprisal for his
October 2012 IG complaint, and he describes the allegations set forth therein,
6
including his contention that various agency officials were aware of false
statements about him. W-1 IAF, Tab 7 at 35-36. He further alleges that three
specific agency officials (including M.H.) were aware of nepotism, “which [the
appellant] had repeatedly complained about,” yet took no action to address it. Id.
OSC’s letter to the appellant states that he identified his whistleblowing activity
as his October 26, 2012 IG complaint regarding nepotism in the workplace and
management’s failure to take any action to correct the matter. W‑1 IAF, Tab 17
at 8.
¶9 In the initial decision, the administrative judge found that the appellant
failed to exhaust his administrative remedies before OSC regarding his purported
protected disclosure of July 25, 2013, because he made no reference in his OSC
complaint to any alleged disclosure to D.W. or M.H. on July 25, 2013. ID at 9.
The appellant challenges this finding on review, arguing that the statement in his
OSC complaint that he repeatedly complained about nepotism was sufficient to
exhaust his remedy before OSC regarding his purported protected disclosure of
July 25, 2013, because he was referring to the July 25, 2013 meeting with D.W.
when he stated in his OSC complaint that he repeatedly complained about
nepotism. PFR File, Tab 1 at 10.
¶10 We find this argument unpersuasive. To satisfy the exhaustion requirement,
an appellant must inform OSC of the precise ground of his protected activity,
giving OSC a sufficient basis to pursue an investigation that might lead to
corrective action. Davis v. Department of Defense, 103 M.S.P.R. 516, ¶ 10
(2006). Not only do the appellant’s submissions to OSC fail to mention the
July 25, 2013 meeting, but there is no indication in those submissions that the
appellant made any disclosures to D.W. Thus, we find that the administrative
judge correctly found that the appellant did not show that he exhausted his
administrative remedies regarding his purported July 25, 2013 disclosure.
7
The administrative judge correctly found that the appellant failed to prove that his
IG complaint was a contributing factor in the personnel actions at issue in
this appeal.
¶11 After establishing the Board’s jurisdiction in an IRA appeal, the appellant
then must establish a prima facie case of whistleblower retaliation by proving by
preponderant evidence that he made a protected disclosure that was a contributing
factor in a personnel action taken against him. 5 U.S.C. § 1221(e)(1); Mattil v.
Department of State, 118 M.S.P.R. 662, ¶ 11 (2012). The term “contributing
factor” means any disclosure that affects 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 & Human Services, 116 M.S.P.R.
383, ¶ 31 (2011); 5 C.F.R. § 1209.4(c).
¶12 The most common way of proving that a disclosure was a contributing
factor in a personnel action is the knowledge/timing test. Shannon v. Department
of Veterans Affairs, 121 M.S.P.R. 221, ¶ 23 (2014). Under that test, an appellant
can prove the contributing factor element 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 could
conclude that the disclosure was a contributing factor in the personnel action. Id.
¶13 An appellant also may show that the protected activity was a contributing
factor by proving that the official taking the action had constructive knowledge of
the protected activity, even if the official lacked actual knowledge. Nasuti v.
Department of State, 120 M.S.P.R. 588, ¶ 7 (2014). An appellant may establish
constructive knowledge by demonstrating that an individual with actual
knowledge of the disclosure influenced the official accused of taking the
retaliatory action. Id.; Dorney v. Department of the Army, 117 M.S.P.R. 480,
¶ 11 (2012). The Supreme Court has adopted the term “cat’s paw” to describe a
case in which a particular management official, acting because of an improper
animus, influences an agency official who is unaware of the improper animus
8
when implementing a personnel action. Dorney, 117 M.S.P.R. 480, ¶ 11 (citing
Staub v. Proctor Hospital, 562 U.S. 411, 415-16, 419-23 (2011) (applying a cat’s
paw approach to cases brought under the Uniformed Services Employment and
Reemployment Rights Act of 1994)).
¶14 In assessing whether the appellant met his burden of proving by
preponderant evidence that his IG complaint was a contributing factor in his
termination, the administrative judge summarized the relevant hearing testimony
of the appellant and the following agency officials: M.H., who made the decision
to terminate the appellant; D.W.; Colonel (Col.) P.M., 4 Staff Judge Advocate at
FHL, who was present during the August 21, 2013 meeting in which M.H.
notified the appellant of his termination; and Deputy IG J.T., who received the
appellant’s IG complaint in March 2013 and notified Col. P.M. in April 2013 that
the appellant was displeased with the manner in which investigations about him
had been conducted. ID at 6-8, 11 n.13.
¶15 The appellant’s argument regarding the contributing factor element of his
whistleblower reprisal claim, as summarized in the initial decision, was that
Col. P.M. told M.H. about the appellant’s IG complaint or showed it to him
shortly before the appellant’s termination. ID at 13; W‑1 IAF, Tab 1 at 7. The
administrative judge noted that to support this claim, the appellant testified that
during the August 21, 2013 meeting, he accused Col. P.M. of having given his
complaint to M.H. and Col. P.M. did not deny the accusation. ID at 14 (citing
Hearing Transcript, Volume 1 (HT I) at 51). Conversely, the administrative judge
noted, M.H. and Col. P.M. stated that the appellant never raised the topic of his
IG complaint during the meeting. ID at 15 (citing HT I at 224-25 (testimony of
M.H.); Hearing Transcript, Volume 2 (HT II) at 394-95 (testimony of Col. P.M.);
W-1 IAF, Tab 8 at 19 (declaration of M.H.); Tab 9 (declaration of Col. P.M.)).
4
At various times during these proceedings some pleadings refer to this individual as
Lieutenant Colonel P.M.
9
The administrative judge further noted that Col. P.M. testified that he was
unaware of the appellant’s IG complaint, ID at 7 (citing HT II at 381, 383-84,
401), and M.H. testified that he had no knowledge of the complaint when he
terminated the appellant, ID at 8 (citing HT I at 249‑50).
¶16 Applying the factors for resolving credibility issues set forth in Hillen v.
Department of the Army, 35 M.S.P.R. 453, 458-62 (1987), the administrative
judge credited the testimony of M.H. and Col. P.M. over that of the appellant,
finding that they were “highly credible” and “clearly and consistently answered
the questions posed to them.” ID at 15 (citing Hillen, 35 M.S.P.R. at 452). By
contrast, the administrative judge found that the appellant “appeared to frequently
make unsupported allegations and engage in unwarranted speculation.” Id.
Based on his credibility determinations, the administrative judge found that M.H.
was unaware of the appellant’s IG complaint when he decided to terminate the
appellant, and that D.W. was unaware of the complaint when she decided to bar
the appellant from FHL. ID at 11 n.13, 13-14. The administrative judge further
found that M.H. and D.W. lacked constructive knowledge of the appellant’s
complaint, as there was no evidence that anyone with actual knowledge of the
complaint influenced their decisions to terminate the appellant and bar him from
FHL. ID at 11 n.13, 15‑16.
¶17 Having determined that the appellant failed to prove that the agency
officials who decided to take the actions at issue in this appeal had any
knowledge of the appellant’s protected activity at the time of those actions, the
administrative judge then considered the following potentially relevant factors to
the contributing factor issue: (1) the strength or weakness of the agency’s reason
for taking the personnel actions; (2) whether the whistleblowing was directed at
the responsible official; and (3) whether that individual had a desire or motive to
retaliate. ID at 16 n.15 (citing Armstrong v. Department of Justice, 107 M.S.P.R.
375, ¶ 23 (2007)).
10
¶18 The administrative judge found that these factors weighed in favor of the
agency. ID at 16 n.15. More specifically, the administrative judge found that the
record reflects that M.H. had no desire or motive to retaliate against the appellant
because M.H. gave him the highest rating possible on his annual performance
rating issued just 3 weeks before his termination. Id. (citing W‑2 AF, Tab 32
at 980-83). The administrative judge found that the allegations in the appellant’s
IG complaint are primarily directed at the individual who conducted various
investigations regarding the appellant, and not toward M.H. Id. (citing W-1 IAF,
Tab 7 at 21‑27). In that regard, the administrative judge noted that the appellant
mentioned M.H. in his IG complaint in connection with a rumor the appellant
heard in 2010 (i.e., that M.H. was planning to fire him), but found that the
relaying of an outdated, baseless rumor would not have motivated M.H. to
terminate the appellant’s employment in 2013. Id.
¶19 The administrative judge further found that the agency had a strong,
nonretaliatory reason for terminating the appellant in 2013; namely, that DPW
was overstaffed and that the appellant, as a reemployed annuitant, was the only
“over‑hired” individual in that division who could be terminated without
conducting a reduction in force. ID at 16 n.15 (citing HT I at 248-49, HT II
at 282 (testimony of M.H.); W-1 IAF, Tab 4 at 14; Tab 8 at 18-21 (declaration of
M.H.)). In making this finding, the administrative judge credited M.H.’s
testimony that the appellant was released because “the personnel structure and
authorization did not warrant his retention and as a reemployed annuitant he
could be released at will.” ID at 16 n.15 (citing HT II, 296-301; W-1 IAF, Tab 4
at 14, 18; W-2 AF, Tab 37, Hearing Exhibit 1). Therefore, the administrative
judge found, the appellant failed to meet his burden of proving that his IG
complaint was a contributing factor in his termination. ID at 16.
¶20 The appellant challenges the administrative judge’s findings regarding the
contributing factor element of his appeal on review. PFR File, Tab 1 at 13-24. In
11
particular, he argues that the administrative judge erred in finding that M.H. and
D.W. did not know of his IG complaint. Id. at 14. The appellant asserts that
M.H.’s testimony that he was “normally aware” of IG complaints due to his
position as “second in command of civilian personnel” is sufficient to impute
knowledge of the appellant’s whistleblower activity to M.H. Id. Similarly, the
appellant asserts that D.W.’s testimony that Col. P.M. would have notified her if
he had received information from the IG that impacted FHL is sufficient to
impute knowledge of the appellant’s whistleblower activity to D.W. Id.
¶21 The appellant is essentially arguing that the administrative judge erred in
crediting M.H.’s and D.W.’s testimony that they did not know about the
appellant’s IG complaint at the time of the actions at issue in this appeal. 5 The
Board will not disturb an administrative judge’s findings when he considered the
evidence as a whole, drew appropriate inferences, and made reasoned conclusions
of credibility. Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997);
Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357, 359
(1987). The Board must defer to an administrative judge’s credibility
determinations when, as here, they are based, explicitly or implicitly, on the
observation of the demeanor of witnesses testifying at a hearing, and may
overturn such determinations only when it has “sufficiently sound” reasons for
doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002);
McCarthy v. International Boundary & Water Commission, 116 M.S.P.R. 594,
¶ 45 (2011) (finding that, in a whistleblower reprisal case, the Board is required
to apply appropriate deference to an administrative judge’s credibility findings
consistent with the principles contained in Haebe), aff’d, 497 F. App’x 4 (2012).
5
The appellant also argues on review that the administrative judge erred in finding that
Col. P.M. did not know that he had filed an IG complaint. PFR File, Tab 1 at 15;
ID at 14 (finding that Col. P.M. was not aware that the appellant had filed an IG
complaint). Whether Col. P.M. knew of the appellant’s complaint is of no consequence,
however, given the administrative judge’s finding that he played no part in the decision
to terminate the appellant. ID at 14, 15.
12
We find that the appellant’s assertions on review reflect his mere disagreement
with the administrative judge’s reasoned credibility findings, and they do not
provide a sufficiently sound reason for overturning those findings. Diggs v.
Department of Housing & Urban Development, 114 M.S.P.R. 464, ¶ 8 (2010).
Accordingly, we find no reason to disturb the administrative judge’s finding that
M.H. and D.W. had no knowledge of the appellant’s IG complaint at the time of
the personnel actions at issue in this appeal.
¶22 On review, the appellant also appears to challenge the administrative
judge’s finding that the agency had a strong, nonretaliatory reason for his
termination, arguing that the administrative judge failed to consider evidence that
contradicts the agency’s claim that it terminated the appellant because there was
overstrength in DPW and he was the only person in an overhire position who
could be terminated without a reduction in force. PFR File, Tab 1 at 19. More
specifically, the appellant reiterates his argument from below that Director of
Resource Management J.F. refuted this explanation for his termination by
testifying that that there was no overstrength in DPW requiring his termination.
Id. at 19-20; W-2 AF, Tab 40 at 18.
¶23 We find this argument unpersuasive. As the administrative judge noted in
the initial decision, J.F., in his testimony, acknowledged that the appellant was an
overhire. ID at 16 n.15 (citing HT I at 175, 178-79). To the extent that J.F. and
M.H. provided conflicting testimony as to whether there was overstrength in
DPW, we discern no reason to disturb the administrative judge’s decision to
credit M.H.’s testimony over J.F.’s testimony that FHL was “significantly over
staffed,” HT II at 297, and that FHL’s personnel structure and authorization
did not warrant the appellant’s retention. ID at 16 n.15 (citing HT II at 296-301).
Thus, we agree with the administrative judge’s finding that the agency had a
strong, nonretaliatory reason for terminating the appellant.
¶24 The appellant further argues on review that, in denying his request for
corrective action, the administrative judge improperly failed to consider evidence
13
that similarly situated employees who had not made complaints of prohibited
personnel practices were not terminated. PFR File, Tab 1 at 23. The appellant
asserts that such evidence can show “pretext,” thereby demonstrating that his
whistleblowing activity was a contributing factor in his termination. Id.
at 23‑24. He further contends that, because the agency did not terminate
similarly situated nonwhistleblowers, it did not meet its burden of proving by
clear and convincing evidence that it would have taken the same actions against
him absent his protected disclosure. Id. at 24.
¶25 We find these arguments unavailing. Once an appellant establishes a
prima facie case of whistleblower retaliation, the burden shifts to the agency to
prove by clear and convincing evidence that it would have taken the same
personnel action in the absence of the appellant’s whistleblowing. Jenkins v.
Environmental Protection Agency, 118 M.S.P.R. 161, ¶ 16 (2012). In
determining whether an agency has met this burden, the Board will consider
various factors, including any evidence that the agency takes similar actions
against employees who are not whistleblowers but who are otherwise similarly
situated. Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir.
1999). Significantly, however, the Board does not reach the issue of whether the
agency showed by clear and convincing evidence that it would have taken the
same actions absent the appellant’s whistleblowing unless the appellant
establishes a prima facie case of whistleblower retaliation. Clarke v. Department
of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19 n.10 (2014) (holding that 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), aff’d, 623 F.
App’x 106 (Fed. Cir. 2015). Because the appellant did not establish a
prima facie case of whistleblowing retaliation, the agency’s ability to show by
14
clear and convincing evidence that it would have taken the same actions absent
the appellant’s whistleblowing was not at issue here. 6
¶26 We also find unpersuasive the appellant’s argument on review that evidence
regarding the agency’s treatment of similarly situated employees would have
established the contributing factor element of his IRA appeal by showing that the
agency’s proffered reasons for his termination were a pretext for whistleblower
retaliation. Because M.H. and D.W. were not aware of the appellant’s IG
complaint when they terminated him and subsequently barred him from FHL,
their explanations for taking these actions clearly were not a pretext
for retaliation.
The appellant’s challenges to the administrative judge’s evidentiary rulings
are unpersuasive.
¶27 The appellant also argues on review that the administrative judge
improperly excluded evidence and denied his request for witnesses. An
administrative judge has wide discretion to control the proceedings, including the
authority to exclude testimony and evidence that he believes would be irrelevant
or immaterial. Sanders v. Social Security Administration, 114 M.S.P.R. 487, ¶ 10
(2010). The Board has found that, to obtain reversal of an initial decision on the
ground that the administrative judge abused his discretion in excluding evidence,
the petitioning party must show on review that a relevant witness or evidence,
which could have affected the outcome, was disallowed. Id.
¶28 The appellant contends that the administrative judge improperly excluded
evidence regarding the following: (1) the July 25, 2013 meeting attended by
M.H. in which the appellant purportedly informed D.W. of nepotism; and (2) an
August 14, 2013 meeting in which the appellant reportedly made allegations of
fraud, waste, and abuse, W-1 IAF, Tab 32 at 685. PFR File, Tab 1 at 10-13. The
6
Because we find that the appellant failed to establish the contributing factor element
as to the termination action, we need not address his contention that his
post‑termination barment from FHL constitutes a personnel action under the WPA.
15
appellant asserts that the administrative judge should have permitted him to
introduce evidence regarding these matters because such evidence was relevant to
whether M.H. and D.W. knew about his protected disclosures when they decided
to take the actions at issue in this appeal. PFR File, Tab 1 at 13.
¶29 We find this argument unpersuasive. As previously noted, the Board’s
jurisdiction in an IRA appeal is limited to the disclosures that the appellant raised
with OSC. As explained above, the appellant asserted that he raised two
disclosures with OSC—his October 26, 2012 IG complaint and his purported
disclosure of July 25, 2013—however, he exhausted his remedy before OSC only
as to the IG complaint. Consequently, even assuming arguendo that the excluded
evidence would have shown that the officials knew about the appellant’s
purported disclosure of nepotism to D.W. on July 25, 2013, and his purported
disclosure of fraud, waste, and abuse during a meeting on August 14, 2013, those
purported disclosures (and therefore, M.H.’s and D.W.’s knowledge of them),
are not within the scope of this appeal. Accordingly, we find that the
administrative judge did not abuse his discretion by excluding evidence
pertaining to the meetings of July 25 and August 14, 2013. 7
7
Because the appellant exhausted his remedy before OSC regarding his IG complaint,
M.H.’s knowledge of that complaint is relevant to the contributing factor issue.
Consequently, in assessing whether the administrative judge abused his discretion by
excluding evidence regarding the July 25, 2013 meeting, we have considered the
appellant’s apparent argument on review that such evidence is relevant to the
contributing factor issue because it would have shown that M.H. learned that he had
“elevated his complaints to the IGs (sic).” PFR File, Tab 1 at 11. The hearing
transcript reflects that, in response to the administrative judge’s refusal to allow the
appellant’s attorney to question the appellant about the disclosure he purportedly made
during the July 25, 2013 meeting because he had not exhausted his remedy with OSC
regarding that disclosure, the appellant’s attorney submitted an offer of proof in which
she stated that testimony regarding this meeting was relevant because it would have
shown that the appellant raised the issue of nepotism during the meeting. HT I
at 44‑45. Significantly, however, the offer of proof did not state that the anticipated
testimony would indicate that the appellant stated during the meeting that he had filed
an IG complaint. Further, to the extent that the appellant is arguing on review that
M.H. learned that he had filed an IG complaint during the July 25, 2013 meeting, such
an assertion is inconsistent with his contention that M.H. was aware of the complaint
16
¶30 We also find unavailing the appellant’s argument on review that the
administrative judge erred in excluding evidence and testimony regarding an
investigation of alleged prohibited personnel practices that was conducted by
Lieutenant Colonel (LTC) E.O. at the behest of D.W.’s predecessor. PFR File,
Tab 1 at 13; see W‑2 AF, Tab 20 at 20, Tab 32 at 5. The appellant asserts that
the excluded evidence would have shown that M.H. knew about complaints
regarding nepotism that preceded the appellant’s complaints, and that M.H. was
aware that agency employees had made false statements during agency
investigations. Id. The key issue regarding the contributing factor element of the
appellant’s IRA appeal is whether M.H. was aware of the appellant’s disclosure,
not whether he was aware of the wrongdoing that was the subject of the
disclosure. Thus, even if the excluded evidence would have shown that M.H. was
aware of nepotism claims that predated the appellant’s IG complaint, and the
alleged perjury that was the subject of that complaint, his knowledge of those
matters is not material to the outcome of this appeal. Consequently, we find that
the administrative judge acted within his discretion by excluding evidence
regarding the investigation conducted by LTC E.O. and by denying the
appellant’s witness request for LTC E.O.
¶31 Finally, the appellant argues that, during the prehearing conference, the
administrative judge improperly denied his witness request regarding an
employee of the Civilian Human Resources Agency, whose testimony purportedly
would have established that his termination violated Office of Personnel
Management regulations. PFR File, Tab 1 at 25, W-2 AF, Tab 20 at 19. 8 This
because Col. P.M., who was not present at that meeting, either told M.H. about the
appellant’s IG complaint or showed it to him. Given these circumstances, we find that
the appellant failed to show that the administrative judge abused his discretion by
precluding his attorney from eliciting hearing testimony regarding the July 25,
2013 meeting.
8
The prehearing conference summary does not indicate whether the administrative
judge approved or denied this witness request. W-2 AF, Tab 32 at 5.
17
allegation is essentially a harmful procedural error claim, which the Board
does not have jurisdiction over in the context of an IRA appeal. Hooker v.
Department of Veterans Affairs, 120 M.S.P.R. 629, ¶ 5 (2014); Garrett v.
Department of Defense, 62 M.S.P.R. 666, 674 (1994). Therefore, we find that the
administrative judge properly denied this witness request.
¶32 Accordingly, we affirm the initial decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit.
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.
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 U.S. 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 U.S. 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.
18
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 States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information about the U.S. 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 the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.