UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JANEL N. SMITH, DOCKET NUMBER
Appellant, CH-1221-13-0304-W-2
v.
DEPARTMENT OF JUSTICE, DATE: September 9, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Janel N. Smith, Fairview Heights, Illinois, pro se.
Katherine Meng and Lance Simon, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review, and the agency has filed a
cross petition for review of the initial decision, which denied the appellant’s
request for corrective action in this individual right of action (IRA) appeal.
Generally, we grant petitions such as these only when: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. See title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
neither party has established any basis under section 1201.115 for granting the
petition or cross petition for review. Therefore, we DENY the petition for review
and the cross petition for review. Except as expressly MODIFIED by this Final
Order, which finds that the appellant has proven that her disclosure was a
contributing factor in a personnel action, we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant, an Industry Operations Analyst in the agency’s Bureau of
Alcohol, Tobacco, Firearms, and Explosives (ATF), filed this IRA appeal alleging
that, in reprisal for a September 21, 2010 complaint she filed with the agency’s
Office of Inspector General (OIG) and her contacting the Equal Employment
Opportunity (EEO) Office, the agency included negative comments under the
Attitude critical element on her October 18, 2010 performance appraisal, although
both her overall rating and her rating in the Attitude critical element were Fully
Successful. Initial Appeal File (IAF), Tab 1 at 1, 3, 5, 8; Appeal File (I-2 AF),
Tab 4 at 44, 48-49, Tab 8 at 9-10, Tab 33 at 1-2. 2 The appellant alleged that she
disclosed on September 21, 2010, that her immediate supervisor, L.S., added
extra inspection hours on assignments after the assignments had been completed,
2
It appears that the appellant’s date of first contact with the EEO Office was on
September 22, 2010. I-2 AF, Tab 4 at 22. She received notice of a final interview with
the EEO counselor in December 2010, and filed her complaint of discrimination on
January 7, 2011, after the agency took the personnel action at issue in this case. Id.
3
thereby manipulating inspection hours in a database that the agency utilized in
providing information to Congress. I-2 AF, Tab 8 at 5.
¶3 After finding that the Board had jurisdiction over the appeal and holding a
hearing, I-2 AF, Tabs 15, 37, the administrative judge denied the request for
corrective action, I-2 AF, Tab 40, Initial Decision (ID) at 1-2. The administrative
judge found that the appellant proved by preponderant evidence that she made a
protected disclosure. ID at 2, 4-7. The administrative judge also found, however,
that the appellant did not prove by preponderant evidence that her disclosure was
a contributing factor in a personnel action. ID at 7-9. In this regard, the
administrative judge held that L.S. was not aware, before she completed the
appellant’s performance appraisal, that the disclosure involved allegations of
fraudulent or inflated data or statistics. ID at 8. Instead, the administrative judge
found that the appellant had notified L.S. and other management officials only
that her OIG complaint and EEO contact involved an assertion of “unprofessional
internal disparity of treatment.” ID at 7-8. The administrative judge also found
that the appellant did not show that someone with actual or constructive
knowledge of the disclosure influenced L.S. to include the comments at issue in
the appraisal. ID at 8‑9.
¶4 The administrative judge further held that, even if the appellant had shown
that her disclosure was a contributing factor in the agency’s decision to provide
her with a less than favorable performance appraisal, the agency showed by clear
and convincing evidence that it would have taken the same personnel action in the
absence of her protected disclosure. ID at 9. In this regard, the administrative
judge found that the agency produced compelling evidence to support the written
comments expressed by L.S. in the Attitude critical element of the appellant’s
performance appraisal, there was no evidence of a retaliatory motive on the part
of L.S., and L.S. included similar comments in the performance appraisal of a
nonwhistleblower who was similarly situated to the appellant. ID at 10‑15.
4
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s petition for review is denied.
¶5 The appellant asserts on review that L.S. had constructive knowledge of the
content of the September 21, 2010 disclosure because the appellant previously
had disclosed the inflation of inspection hours to L.S. in 2009 and in April 2010,
and L.S. had responded to those disclosures by telling the appellant in 2009 to
“ignore it” and by issuing an April 8, 2010 email to the office investigators
regarding the matter. Petition for Review (PFR) File, Tab 1 at 5-6. The appellant
contends that, based on the 2009 and April 2010 disclosures to L.S., L.S. should
have reasonably suspected that the appellant’s September 21, 2010 disclosure also
related to the inflation of inspection hours. Id. at 13. The appellant further
asserts that she disclosed harassment in the workplace, that L.S. had constructive
knowledge of an attempt by the appellant to meet with L.S.’s supervisor in
June 2010, that the appellant and L.S. were the only individuals who could add
inspection hours into the database after inspections were closed, and that the
appellant’s 2011 performance appraisal reflects animus by L.S. toward the
appellant. Id. at 5, 8. The appellant contends that all of these events show
retaliatory animus by L.S. both before and after the appellant’s September 21,
2010 disclosure. Id.
¶6 In determining whether reprisal for whistleblowing activities occurred, an
inquiry must be made into whether the appellant made a disclosure protected
under 5 U.S.C. § 2302(b)(8), the disclosure was a contributing factor in the
agency’s personnel action, and the agency can prove by clear and convincing
evidence that it would have taken the same personnel action in the absence of the
disclosure. Armstrong v. Department of Justice, 107 M.S.P.R. 375, ¶ 15 (2007).
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
5
conclude that the disclosure was a contributing factor in the personnel action.
Scott v. Department of Justice, 69 M.S.P.R. 211, 238 (1995), aff’d, 99 F.3d 1160
(Fed. Cir. 1996) (Table). To show that a disclosure was a contributing factor in a
personnel action, the appellant need only demonstrate that the fact of, or the
content of, the protected disclosure was one of the factors that tended to affect the
personnel action in any way. Marano v. Department of Justice, 2 F.3d 1137,
1143 (Fed. Cir. 1993). An appellant also can show that a disclosure described
under 5 U.S.C. § 2302(b)(8) was a contributing factor in a personnel action by
proving that the official taking the personnel action had constructive knowledge
of the protected disclosure; an appellant may establish constructive knowledge by
showing that an individual with actual or constructive knowledge of the
disclosure influenced the official accused of taking the retaliatory action.
Marchese v. Department of the Navy, 65 M.S.P.R. 104, 108‑09 (1994).
¶7 Although the appellant appears to assert that L.S. had constructive
knowledge of the content of the September 21, 2010 disclosure because the
appellant previously had disclosed to L.S. the inflated inspection hours, the
appellant has not alleged or shown that an individual with actual or constructive
knowledge of the content of the September 21, 2010 disclosure influenced L.S.
Moreover, given that the appellant informed L.S. only that the September 21,
2010 OIG complaint and EEO contact were “due to unprofessional internal
disparity of treatment from Management,” I-2 AF, Tab 8 at 42-43, we find that
the administrative judge correctly concluded, based in part on her finding that the
testimony of L.S. was credible, that L.S. reasonably believed that the complaints
related to ongoing issues between the appellant and one of the investigators,
rather than inflated or fraudulent data. ID at 5 n.2, 8.
¶8 To the extent that the appellant is alleging that she made protected
disclosures before the September 21, 2010 disclosure that were a contributing
factor in her October 18, 2010 performance appraisal, that she disclosed
harassment in the workplace, and that L.S. demonstrated retaliatory animus
6
against her in her 2011 performance appraisal, the appellant did not raise such
allegations below, I-2 AF, Tabs 15, 34, nor did she exhaust such allegations with
the Office of Special Counsel (OSC), IAF, Tab 1 at 8; I-2 AF, Tab 8 at 14. Thus,
she may not raise such allegations at this time. See Fleming v. Department of the
Interior, 68 M.S.P.R. 222, 223-24 (1995) (finding that the Board lacked
jurisdiction over an alleged threatened reassignment because the appellant did not
raise this action before OSC); Lewis v. Department of the Army, 58 M.S.P.R. 325,
332 (1993) (finding in an IRA appeal that the Board may review only those
disclosures of information that the appellant raised before OSC, provided that the
appellant exhausted OSC proceedings). The mere fact that the appellant may
have attempted to meet with L.S.’s supervisor in June 2010 does not demonstrate
that L.S. had actual or constructive knowledge of the content of the appellant’s
September 21, 2010 disclosure.
¶9 We nevertheless find that the September 21, 2010 disclosure was a
contributing factor in the October 18, 2010 performance appraisal. The
administrative judge found that, although L.S. was aware that the appellant had
filed the OIG complaint and contacted the EEO Office, L.S. was not aware that
these complaints were based on allegations involving inflated statistics. ID at 8.
Thus, the administrative judge found that, “[a]s these are the allegations
[regarding inflated statistics] forming the basis of Ms. Smith’s protected
disclosure, I find [L.S.] did not know of the protected disclosure prior to
completing Ms. Smith’s appraisal,” and that no reasonable person could conclude
that the disclosure was a contributing factor in the performance appraisal when
“knowledge of the disclosure occurred after the personnel action.” Id. As set
forth above, however, to satisfy the knowledge/timing test, the appellant need
demonstrate only that the fact of, not necessarily the content of, the protected
disclosure was one of the factors that tended to affect the personnel action in any
way. Marano, 2 F.3d at 1143; Ayers v. Department of the Army, 123 M.S.P.R.
11, ¶ 25 (2015). Awareness of the fact of an appellant’s disclosure is sufficient to
7
satisfy the knowledge component of the knowledge/timing test. Ayers,
123 M.S.P.R. 11, ¶ 26; see McCarthy v. International Boundary & Water
Commission, 116 M.S.P.R. 594, ¶ 41 (2011) (explaining that, even though the
record included no evidence that the acting official knew the details contained
within the written disclosures, the fact that the appellant told him that he had
made the disclosures is sufficient to establish the “knowledge” element of the
knowledge/timing test), aff’d, 497 F. App’x 4 (Fed. Cir. 2012).
¶10 Here, the appellant sent an email on September 22, 2010, to several agency
officials, including L.S., with the subject line “Complaint” and an indication that
she had “attached a Memorandum, with pertinent information of a complaint
filed.” I-2 AF, Tab 33 at 6. The attached memorandum, dated September 22,
2010, and addressed to the “DIO,” or Director of Industry Operations, indicated
that the appellant had filed a complaint on September 21, 2010, with the OIG
“due to unprofessional internal disparity of treatment from Management,” that she
previously had reported “concerns, issues, and incidents” to L.S. as they
occurred, and that she also had contacted the EEO Office. Id. at 4, 7. As the
administrative judge found, L.S. testified that she received the email and the
attached memorandum. ID at 7-8; I-2 AF, Tab 37, Hearing Compact Disc (HCD)
Track 1003. Thus, L.S. was aware of the fact of the appellant’s September 21,
2010 disclosure on September 22, 2010, only weeks before she issued the
October 18, 2010 performance appraisal in question. We therefore find that the
appellant has proven that her disclosure was a contributing factor in a personnel
action. See 5 U.S.C. § 1221(e)(1); McCarthy, 116 M.S.P.R. 594, ¶ 41;
DeLeonardo v. Equal Employment Opportunity Commission, 103 M.S.P.R. 301,
¶ 10 (2006) (finding that the appellant raised a nonfrivolous allegation that her
disclosure was a contributing factor in a personnel action when the acting official
knew of the appellant’s disclosure and issued her a Minimally Successful
performance evaluation approximately 1 month later).
8
¶11 Having found that the appellant proved by preponderant evidence that her
disclosure was a contributing factor in the performance appraisal, we turn to the
question of whether the agency proved by clear and convincing evidence that it
would have taken the same personnel action in the absence of the disclosure. 3
¶12 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. 5 C.F.R. § 1209.4(e). In determining whether an agency has
shown by clear and convincing evidence that it would have taken the same
personnel action in the absence of whistleblowing, the Board will consider the
following factors: the strength of the agency’s evidence in support of its action;
the existence and strength of any motive to retaliate on the part of the agency
officials who were involved in the decision; and 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). “Evidence only clearly and convincingly supports a
conclusion when it does so in the aggregate considering all the pertinent evidence
in the record, and despite the evidence that fairly detracts from that conclusion.”
Whitmore v. Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012).
¶13 As set forth above, the administrative judge, citing to and applying the
court’s decision in Whitmore, found that the agency produced compelling
evidence to support the written comments expressed by L.S. in the Attitude
critical element of the appellant’s performance appraisal, there was no evidence
3
The Board may not proceed to the clear and convincing evidence test unless it has first
found that the appellant made a protected disclosure that was a contributing factor in a
personnel action. See 5 U.S.C. § 1221(e)(2); Clarke v. Department of Veterans Affairs,
121 M.S.P.R. 154, ¶ 19 n.10 (2014), aff’d, 623 F. App’x 1016 (Fed. Cir. 2015). Thus,
the administrative judge should not have addressed the clear and convincing evidence
test in this case. Nevertheless, having found in this Final Order that the appellant
established her prima facie case in this IRA appeal, we may now consider the
administrative judge’s alternative finding that the agency proved by clear and
convincing evidence that it would have taken the same action in the absence of the
appellant’s protected disclosure.
9
of a retaliatory motive on the part of L.S., and L.S. included similar comments in
the performance appraisal of a nonwhistleblower who was similarly situated to
the appellant. ID at 10-15. The administrative judge noted that the Fully
Successful rating in the Attitude critical element was the same rating that the
appellant gave to herself in providing input to L.S. before receiving the appraisal,
and that the appellant did not contest the Fully Successful rating itself, but
focused instead on the comments under this critical element, which indicated that
there were a number of occasions on which L.S. had to intervene in disruptions in
the workplace between the appellant and a number of Industry Operations
Investigators (IOIs), that L.S. had stressed to the appellant the importance of
professionalism and treating other employees with respect, and that this was an
area that “is being worked on by all.” ID at 2, 10‑11.
¶14 Regarding the strength of the agency’s evidence, the administrative judge
noted that the appellant’s attendance at an off-site assignment led to at least one
confrontation with an IOI during the 2010 appraisal period, and that the IOI
believed the appellant was confrontational and argumentative, while the appellant
testified that she was simply asking questions during the inspection. ID at 12.
The administrative judge also found that the appellant did not believe that she
was respected within the office, which may have contributed to the interpersonal
conflicts that occurred, and that documentary evidence supported the testimony of
L.S. regarding the interpersonal conflicts in question. Id. Moreover, the
administrative judge noted that L.S. attempted to obtain preventive training on
personality conflicts for her staff and assigned two different courses regarding
such training to them in July 2010. ID at 13. Further, the administrative judge
found that L.S.’s appraisal comments merely indicated that interpersonal conflicts
arose throughout 2010 and did not assign blame to the appellant. Id.
¶15 We agree with the administrative judge that the evidence in support of the
appellant’s 2010 performance appraisal is strong. L.S. provided extensive
testimony, which the administrative judge found credible, regarding the
10
interpersonal conflicts at issue. I-2 AF, Tab 37, HCD Track 1002-1003; ID at 5
n.2, 12-13. The record also includes an April 27, 2010 email that L.S. sent to
herself noting some of the conflicts the appellant was having with her coworkers;
a June 14, 2010 email the appellant sent to L.S. addressing issues she was having
with IOIs; a June 11, 2010 email L.S. sent to the appellant and an IOI (F.B.)
addressing their recent lack of proper communication and stating that L.S.
“will not allow your personal differences to fester and infect the entire office”;
and emails from June and July 2010 documenting the efforts L.S. made to obtain
training, including a course entitled “Building a Respectful Workforce,” for her
employees. I-2 AF, Tab 32, Agency Exhibits 4, 6, 11. L.S. notes in one of these
emails that she is “having some difficulties with an employee and would like to
present this training in my next roll call,” and that “this employee is having
difficulties dealing with other employees.” Id., Agency Exhibit 11. L.S. testified
that the “employee” she referred to in the email was the appellant. I-2 AF,
Tab 37, HCD Track 1002. All of these emails were written by L.S. several
months before the appellant’s September 21, 2010 disclosure.
¶16 The appellant asserts that the agency’s evidence supporting its contention
that she was confrontational or argumentative during an inspection is unfounded
and based on hearsay. PFR File, Tab 1 at 16, 20. The appellant’s performance
appraisal, however, did not indicate that she was “confrontational” or
“argumentative”; rather, L.S. merely indicated that, as examples of occasions on
which L.S. had to intervene in “disruptions” in the workplace, the appellant “had
conflicts with the Investigators that you accompanied on inspections and on
instances involving telephone inquiries.” I-2 AF, Tab 8 at 64. In any event,
relevant hearsay evidence is admissible in Board proceedings. See
Crawford ‑ Graham v. Department of Veterans Affairs, 99 M.S.P.R. 389, ¶ 20
(2005).
¶17 The appellant also contends that the comments provided by L.S. in the
appellant’s mid-year progress review in April 2010 do not indicate that she
11
created any conflict. PFR File, Tab 1. The appellant’s 2010 performance
appraisal did not, however, indicate that she created the conflict. Rather, as the
administrative judge found, it merely indicated that interpersonal conflicts arose
throughout 2010 and did not assign blame to the appellant. I‑2 AF, Tab 8
at 63‑64; ID at 13. Moreover, the appellant’s mid‑year progress review does
reflect some concern regarding the appellant’s performance. L.S. indicated that:
[a]s discussed, you are performing at a Fully Successful rate. You
have taken on your responsibilities with a professional attitude. You
have been assigned to an Area Office with complex personalities that
are at times difficult to understand. As I stated, be a part of the
solution not the problem, stay on your individual path and you will
be a success with ATF.
I-2 AF, Tab 8 at 66.
¶18 The appellant asserts that retaliatory animus may be inferred from a
conversation she had with L.S. in which L.S. “mentioned instances of Agency
employees filing grievances and/or complaints as getting ‘Blacklisted’ by the
Agency.” PFR File, Tab 1 at 16-17. The appellant has not identified any
evidence in the record supporting her contention that L.S. made the above
statement. In any event, we agree with the administrative judge that, because the
alleged wrongdoing implicated L.S., one could infer there would be a strong
retaliatory motive. ID at 13. Nevertheless, as the administrative judge also
found, “it would be unreasonable to suggest [L.S.] was strongly influenced by
retaliatory motives when drafting [the appellant’s] appraisal, as the underlying
events occurred throughout the year, prior to [the appellant’s] whistleblowing
activities.” ID at 13-14. Further, the administrative judge correctly found that
L.S. included similar comments in the appraisal of F.B., the IOI who engaged in a
seemingly prolonged and repetitive conflict with the appellant and who was not a
whistleblower, and similarly reduced F.B.’s rating for the critical element
Interpersonal Relations from an Exceeds in 2009 to a Fully Successful in 2010.
ID at 14; I-2 AF, Tab 32 at 32-37, 46-47, Tab 37, HCD Track 1003.
12
¶19 There is no requirement that an agency meet all three factors to satisfy its
clear and convincing evidence burden in an IRA appeal. Whitmore, 680 F.3d
at 1374. The factors are merely considerations to determine whether the agency
has met its burden. Id. We agree with the administrative judge that, under the
circumstances of this case, the strong evidentiary support for the comments L.S.
made in the appellant’s 2010 performance appraisal under the Attitude critical
element, along with the similar comments L.S. included in the performance
appraisal of a similarly situated nonwhistleblower, outweigh any perceived
retaliatory motive that might have existed. ID at 14‑15.
¶20 Finally, the appellant asserts that the agency did not fully cooperate in
discovery and destroyed evidence. PFR File, Tab 1 at 18-19. The administrative
judge denied the appellant’s motion to compel discovery regarding this matter,
finding that the appellant did not comply with the discovery procedures set forth
at 5 C.F.R. § 1201.73. I-2 AF, Tab 36. The appellant has not shown that the
administrative judge abused her discretion in denying the motion to compel.
See Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 16 (2016) (finding that
an administrative judge has broad discretion in ruling on discovery matters, and
absent an abuse of discretion the Board will not find reversible error in such
rulings). Thus, we find no basis for disturbing the administrative judge’s rulings
regarding discovery.
¶21 Accordingly, we agree with the administrative judge’s determination to
deny the appellant’s request for corrective action in this case because the agency
has proven by clear and convincing evidence that it would have taken the same
personnel action in the absence of the appellant’s protected disclosure.
The agency’s cross petition for review is denied.
¶22 The agency asserts that the administrative judge should have dismissed this
appeal for lack of jurisdiction because the appellant did not nonfrivolously allege
that her disclosure was a contributing factor in an agency personnel action.
PFR File, Tab 3 at 15. The agency contends that the administrative judge based
13
her jurisdictional determination on the timing of the disclosure and the personnel
action without addressing the knowledge aspect of the knowledge/timing test. Id.
at 16-18. The agency asserts that the appellant did not allege that L.S. had actual
or constructive knowledge of the disclosure. Id. at 17.
¶23 The evidence submitted below, however, shows that L.S. received the
appellant’s email and attachment indicating that the appellant had filed a
complaint with the OIG and contacted the EEO Office. I-2 AF, Tab 33 at 6-7. As
set forth above, L.S. testified that she received the email and the attached
memorandum. I-2 AF, Tab 37, HCD Track 1003. There is no dispute that L.S.
was aware of the fact of the appellant’s disclosure. Given that L.S. issued the
contested performance appraisal approximately 1 month after the appellant made
her protected disclosure, the administrative judge correctly held that the appellant
nonfrivolously alleged that a protected disclosure was a contributing factor in a
personnel action and that the Board had jurisdiction over this appeal.
¶24 The agency also asserts that the administrative judge erred in finding that
the appellant proved by preponderant evidence that she made a protected
disclosure to the OIG. PFR File, Tab 3 at 18-19. In this regard, the agency
contends that the appellant did not submit a copy of her September 21, 2010
disclosure to the OIG, but instead produced an August 30, 2012 letter from the
OIG that did not address the nature of her disclosure. Id. at 18. Thus, the agency
asserts that there is no evidence in the record supporting the administrative
judge’s finding that the OIG disclosure was related to the conduct of L.S. and
demonstrated gross mismanagement by L.S. Id.
¶25 The record does not appear to include a copy of the complaint the appellant
filed with the OIG. In fact, it appears that she submitted the complaint by means
of an agency website and indicated in a May 25, 2011 email to a supervisory EEO
manager that she could not find the OIG complaint and thought that she had
deleted it when the OIG did not respond and the matter was agreed to be handled
through the EEO Office. I-2 AF, Tab 33 at 15-18. The OIG informed the
14
appellant in an August 30, 2012 letter that her complaint had been erroneously
routed to an unrelated email folder location, which resulted in the nearly 2‑year
delay in addressing her complaint. I-2 AF, Tab 8 at 25.
¶26 The administrative judge found that the appellant credibly testified that she
noticed in 2009 and 2010 a pattern of “funny” and inflated numbers concerning
the reporting of hours worked by Investigators. ID at 5-6; see I‑2 AF, Tab 37,
HCD Track 1001. Moreover, the appellant asserted in numerous pleadings that
she disclosed to the OIG that L.S. “was manipulating the inspection hours (adding
on) after closing the inspections in the database (Nspect).” IAF, Tab 7 at 1-2;
see I-2 AF, Tab 8 at 5-6; Scott, 69 M.S.P.R. at 228 (finding that an unsworn
statement by an appellant in an initial appeal file is simply one form of
admissible hearsay evidence). In a September 27, 2010 email to an individual in
the agency’s Office of Chief Counsel, the appellant notified him that her
complaint to the OIG involved “[s]upervisory misconduct.” I-2 AF, Tab 8
at 38‑39. All of this evidence is consistent with the appellant’s OSC complaint,
which indicated that she asserted in the OIG complaint that L.S. had inflated
inspection reporting hours for her area office. Id. at 13-14. Under these
circumstances, and given this pro se appellant’s indication that she believed that
she had deleted the OIG complaint, as well as the OIG’s indication, nearly 2 years
after the fact, that it had mishandled the complaint, we find that the agency has
shown no error in the administrative judge’s determination that the appellant
proved by preponderant evidence that she made a protected disclosure of a
violation of law, rule, or regulation and gross mismanagement as it related to the
reporting of fraudulent and inflated statistics in a database relied upon by
Congress to determine the agency’s budget.
¶27 Accordingly, we deny the petition for review and the cross petition for
review and affirm the initial decision as modified by this Final Order.
15
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request 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.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the 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.
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 U.S. 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 U.S. Code, at our
16
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.