UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHANNA H. ESTES, DOCKET NUMBER
Appellant, DC-1221-18-0573-W-1
v.
DEPARTMENT OF HOMELAND DATE: January 5, 2024
SECURITY,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
Bud Davis , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the petition for review, REVERSE the
initial decision, and REMAND the case to the regional office for further
adjudication in accordance with this Remand Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
During the time period relevant to this appeal, the agency employed the
appellant as the Director of the Audit Professional Standards Division within
Regulatory Audit (RA), a component of the Office of Trade at the Bureau of
Customs and Border Protection (CBP). 2 Initial Appeal File (IAF), Tab 1 at 1,
Tab 4 at 12. In this position, she supervised the Audit Policy Branch, the
Continuing Professional Education (CPE) Branch, and the Quality Assurance
(QA) Branch. IAF, Tab 12 at 12-13.
According to the appellant, she met with the Executive Director of RA on
July 18, 2017, for a briefing regarding a reorganization of RA Headquarters and
he told her that it would be effective in 6 days, on July 24, 2017. IAF, Tab 11
at 20. After the briefing, on July 19, 2017, the appellant emailed the Deputy
Executive Assistant Commissioner (DEAC), the Executive Assistant
Commissioner (EAC), the Executive Director, and her supervisor regarding her
concerns about the effect of the reorganization on RA’s ability to carry out its
mission and requesting a meeting with the DEAC. Id. at 22, 33-34. According to
the appellant, on or about July 20, 2017, she refused her supervisor’s instruction
to assign a CPE employee to perform a QA assignment review and to document
her inevitable failure, which would set her up for a performance -based removal,
and objected to her supervisor’s instruction to document the failure of an
unqualified employee who was to be moved into the QA Branch Chief position.
Id. at 7-8, 12, 23-24. The agency ultimately did not implement the RA
reorganization. Id. at 23; IAF, Tab 12 at 5-6.
After seeking corrective action from the Office of Special Counsel (OSC)
and receiving a March 28, 2018 notice of closure, the appellant timely filed the
instant IRA appeal and requested a hearing. IAF, Tab 1. The administrative
judge informed the appellant of her burden of proof on jurisdiction and directed
2
According to the agency, the Audit Professional Standards Division is now the Audit
Performance and Excellence Division. IAF, Tab 4 at 12-13.
3
her to submit evidence and argument on the issue. IAF, Tab 8. In response, the
appellant alleged that, in July 2017, she disclosed gross mismanagement when she
informed the Executive Director, EAC, and DEAC, among others, that the
reorganization plan was “unworkable” and would “eliminat[e] the employees
necessary to carry out the mission of the [QA] Branch.” IAF, Tab 11 at 4-5,
11-12. She also alleged that she disclosed a violation of the collective bargaining
agreement and merit systems principles when she objected to her supervisor’s
instruction to document the failure of an unqualified employee who would be
moved into the QA Branch Chief position and to assign a QA project to a non -QA
employee and then document her failures. Id. at 11-12. She alleged that,
although the agency did not complete the reorganization, the Executive Director
and her supervisor began retaliating against her shortly after her disclosures of
gross mismanagement and “illegal personnel actions” by sending her a July 29,
2017 hostile email, issuing her an October 30, 2017 letter of counseling and
expectations, removing her from the day-to-day responsibilities of two of the
three branches under her supervision, lowering her performance rating, excluding
her from RA weekly management meetings, and subjecting her to harassment and
a hostile work environment. Id. at 13-16.
Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision finding that, although the appellant exhausted her
administrative remedy with OSC, she failed to nonfrivolously allege that she
made any protected disclosure. IAF, Tab 13, Initial Decision (ID) at 3-8. Thus,
he dismissed the appeal for lack of jurisdiction. ID at 8.
The appellant has filed a petition for review of the initial decision, and the
agency has responded in opposition. Petition for Review (PFR) File, Tabs 1, 3.
ANALYSIS
Under the Whistleblower Protection Enhancement Act of 2012 (WPEA),
the Board has jurisdiction over an IRA appeal if the appellant has exhausted her
4
administrative remedies before OSC and makes nonfrivolous allegations of the
following: (1) she 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 protected disclosure or activity was a contributing factor
in the agency’s decision to take or fail to take, or threaten to take or fail to take, a
personnel action as defined by 5 U.S.C. § 2302(a). 3 Salerno v. Department of the
Interior, 123 M.S.P.R. 230, ¶ 5 (2016); see 5 U.S.C. §§ 1221(e)(1), 2302(b)(8).
The administrative judge properly found that the appellant exhausted her
administrative remedy as to the claims raised in this appeal.
The Board may only consider those disclosures, activities, and personnel
actions that the appellant raised before OSC. See Scoggins v. Department of the
Army, 123 M.S.P.R. 592, ¶ 9 (2016). T he substantive requirements of
exhaustion are met when an appellant has provided OSC with a sufficient basis
to pursue an investigation. Chambers v. Department of Homeland Security,
2022 MSPB 8, ¶ 10. Here, we agree with the administrative judge that the
appellant exhausted the claims raised in this appeal. ID at 3. Specifically, in a
September 11, 2017 OSC complaint and subsequent correspondence, the appellant
informed OSC that, in retaliation for disclosing concerns regarding the Executive
Director’s handling of the RA reorganization and for objecting to instructions to
harm employee’s careers, her supervisor and/or the Executive Director issued her
a July 29, 2017 “counseling or reprimand email,” issued her a letter of counseling
and expectations, lowered her performance rating, removed significant
management responsibilities from her, left her out of meetings, harassed her, and
subjected her to a hostile work environment. IAF, Tab 1 at 9-38.
3
The relevant events occurred after the December 27, 2012 effective date of the WPEA.
Pub. L. No. 122-199, § 202, 126 Stat. 1465, 1476. Therefore, we have applied the
WPEA to this appeal.
5
The appellant made a nonfrivolous allegation of a protected disclosure.
A nonfrivolous allegation of a protected whistleblowing disclosure is an
allegation of fact that, if proven, would show that the appellant disclosed a matter
that a reasonable person in her position would believe evidenced one of the
categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8). Salerno,
123 M.S.P.R. 230, ¶ 6. The test to determine whether a putative whistleblower
has a reasonable belief in the disclosure is an objective one: whether a
disinterested observer with knowledge of the essential facts known to and readily
ascertainable by the employee could reasonably conclude that the actions of the
agency evidenced a violation of any law, rule, or regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety. Id.; see 5 U.S.C. § 2302(b)(8).
Any doubt or ambiguity as to whether the appellant made nonfrivolous
jurisdictional allegations should be resolved in favor of finding jurisdiction.
Ingram v. Department of the Army, 114 M.S.P.R. 43, ¶ 10 (2010).
Gross mismanagement
Gross mismanagement means more than de minimis wrongdoing or
negligence; it means a management action or inaction that creates a substantial
risk of significant adverse impact on the agency’s ability to accomplish its
mission. Swanson v. General Services Administration, 110 M.S.P.R. 278, ¶ 11
(2006). Here, the appellant alleged that she disclosed an act of gross
mismanagement when she informed senior agency officials that the RA
reorganization would remove all current employees from the QA Branch and
would make it impossible for the QA Branch to carry out its mission. IAF,
Tab 11 at 6, 11, 24. However, the administrative judge found that her disclosure
did not rise to the level of gross mismanagement but rather amounted to a mere
difference of opinion in a lawfully exercised policy debate. ID at 5-6. He further
found that there was no evidence to indicate that the reorganization created a
substantial risk of adverse impact on the agency’s ability to complete its mission
6
or that the appellant had a reasonable belief that it did, as evidenced by her
statement in her July 19, 2017 email to the DEAC that the organizational changes
to RA “will enhance RA’s ability to support the mission.” ID at 6 (quoting IAF,
Tab 11 at 33). The administrative judge also found that, because the agency did
not implement the proposed reorganization, her concerns were at best speculative,
and even if the agency had implemented the reorganization, it would have only
affected about 5 out of 60,000 CBP employees, the appellant would have
maintained control over the Branch, and the Executive Director stated that there
was a strategy for a transition timeframe to ensure no immediate or significant
disruption. ID at 6.
On review, the appellant argues that the administrative judge erred in
finding that she did not make a nonfrivolous allegation that she had a reasonable
belief that her disclosures regarding the RA reorganization evidenced gross
mismanagement. PFR File, Tab 1 at 10-15. Specifically, she argues that the
administrative judge took her statement regarding changes enhancing RA’s ability
to support the mission out of context, improperly resolved conflicting assertions,
confused the size of the QA Branch with its significance and contribution, and
erred in relying on the fact that the agency did not ultimately implement the
reorganization. Id. For the reasons that follow, we agree.
As the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has
recently stated, “[t]he Board may not deny jurisdiction by crediting the agency’s
interpretation of the evidence as to whether the alleged disclosures fell within the
protected categories or whether the disclosures were a contributing factor to an
adverse personnel action.” Hessami v. Merit Systems Protection Board, 979 F.3d
1362, 1369 (Fed. Cir. 2020). Here, we agree with the appellant that the
administrative judge erred by crediting the Executive Director’s statement in an
email to the DEAC that there was a transition timeline for the reorganization to
ensure “no immediate or significant disruption,” over the appellant’s allegation
that he told her the reorganization would be effective in 6 days and that all
7
current QA Branch employees would be moved at that time. PFR File, Tab 1
at 10, 14-15; ID at 6-7 (citing IAF, Tab 11 at 36); IAF, Tab 11 at 4-5, 20, 33. For
the purposes of determining whether the appellant has made a nonfrivolous
allegation that her disclosure was protected, we accept as true her contention that
the Executive Director told her that the RA reorganization was approved, that it
would be implemented in 6 days, and that the current QA Branch staff would all
be moved at that time. IAF, Tab 11 at 4-5, 11, 20.
We also agree with the appellant that the administrative judge took her
statement that some changes would enhance RA’s ability to support its mission
out of context. PFR File, Tab 1 at 13. Although the appellant stated in her
July 19, 2017 email to the DEAC that “[t]here are many exciting changes that will
enhance RA’s ability to support the mission,” it is clear that she was not referring
to the RA reorganization described to her by the Executive Director as one of
those “exciting changes.” IAF, Tab 11 at 33-34. Rather, she stated that she was
“disappointed” to learn that the RA reorganization, as described to her by the
Executive Director, included the “complete dissolution of the current QA Branch
which was slated to occur . . . next Monday” and expressed her concern that QA
staff was being moved before the positions could be filled. Id. She explained
that, without QA staff in place, the Branch could not operate, the Quality
Refresher Training could not continue, and the QA Branch Chief would not have
support staff to finalize monthly reviews for the fiscal year 2018 RA Peer
Review. Id. She concluded that, “with a leadership message of no confidence,
removal of 100% of staff simultaneously without backfills in place, and an
upcoming peer review, I believe the mission will be significantly impacted.” Id.
at 34. Thus, contrary to the administrative judge’s finding, the appellant’s email
does not suggest that she did not believe that the RA reorganization created a
substantial risk of adverse impact on the agency’s mission. ID at 6.
We further agree with the appellant that the administrative judge erred in
finding that the appellant did not make a nonfrivolous allegation that her
8
disclosure was protected, in part, because the agency did not ultimately
implement the reorganization. PFR File, Tab 1 at 15; ID at 6. A disclosure of
potential wrongdoing set forth in section 2302(b)(8) may be protected, even if the
agency does not carry out the action disclosed, if the disclosure evidences a
reasonable belief of imminent wrongdoing. 4 See Reid v. Merit Systems Protection
Board, 508 F.3d 674, 677-78 (Fed. Cir. 2007) (stating that a reasonable belief that
a violation of law is imminent is sufficient to confer Board jurisdiction over an
individual right of action appeal); see also Ward v. Department of the Army,
67 M.S.P.R. 482, 488-89 (1995) (finding that a disclosure of possible conflict of
interest was protected because the potential wrongdoing was “real and
immediate”). Here, we find that the appellant has nonfrivolously alleged a
reasonable belief that the RA reorganization was imminent. IAF, Tab 11 at 20,
33. Thus, the fact that the agency ultimately did not carry out the reorganization
is no bar to finding a nonfrivolous allegation that this disclosure is protected.
Finally, we agree with the appellant that the administrative judge
improperly assumed that the fact that the QA Branch had only 5 employees (out
of 60,000 employees at CBP) established that its elimination would not have a
significant impact on the agency’s operation. PFR File, Tab 1 at 14. On review,
the appellant explains that, without a QA Branch, the agency could not conform
to Government Auditing Standards and would lose its status as a Generally
Accepted Government Auditing Standard Compliant Organization, which serves
as a “strong deterrent to importer litigation.” Id. at 11-13. She further explains
that the absence of an auditing function would lead to additional legal challenges
to the tariffs, fines, and assessments imposed and cost the Government revenue.
Id. at 11. We find these allegations are sufficient to nonfrivolously allege that the
4
As the Federal Circuit has observed, the “government is far better served by having
the opportunity to prevent illegal, wasteful, and abusive conduct than by notice that it
may only act to reduce the adverse consequences from such conduct that has already
occurred.” Reid v. Merit Systems Protection Board, 508 F.3d 674, 678 (Fed. Cir. 2007).
9
appellant reasonably believed that the lack of a QA Branch would have a
significant impact on the agency’s ability to carry out its mission.
In light of the foregoing and resolving any doubt or ambiguity in favor of
finding jurisdiction, we find that the appellant nonfrivolously alleged that she
made a protected disclosure of gross mismanagement when she informed agency
officials that the RA reorganization slated to be effected in 6 days would remove
all current QA Branch staff and would prevent RA from carrying out its mission.
See Swanson, 110 M.S.P.R. 278, ¶ 11 (finding that the appellant nonfrivolously
alleged that she disclosed an act of gross mismanagement when he informed
agency officials that his supervisor undermined the ability of the agency’s Small
Business Office to perform its mission by drastically cutting the number of
employees).
Violation of law, rule, or regulation
As noted above, the appellant also alleged that she disclosed violations of
the collective bargaining agreement and merit system principles when she
objected to her supervisor’s instructions to take “illegal personnel actions” that
would have “serious adverse effects on certain employees’ careers.” IAF, Tab 11
at 7-8, 11-12. Specifically, she alleged that she objected to the plan to move a
certain employee into the QA Branch Chief position because she did not have the
requisite experience, training, or skills, as well as to her supervisor’s instruction
to document her failure. Id. at 8, 12, 22-23. She also alleged that she refused the
instruction from her supervisor and the Executive Director to assign a CPE
employee to perform a QA assignment review and to document her inevitable
failure to support a performance-based removal because it violated the merit
systems principles and constituted a prohibited personnel practice. Id. at 7-8, 23.
The appellant alleged that she told her supervisor that she would not assign
anyone outside of the QA Branch to do a QA assignment for which she was not
trained and would be unable to do. Id. at 7-8, 23.
10
In the initial decision, the administrative judge found that the appellant
failed to make a nonfrivolous allegation that she disclosed a violation of law,
rule, or regulation because the RA reorganization constituted a policy decision
within the discretion of the agency and because an agency has the right to fill
vacancies in the competitive service by reassignment. ID at 7. The
administrative judge also found that, because the reorganization did not actually
take place, the appellant could not have had a reasonable belief that a violation
occurred. ID at 7-8. On review, the appellant argues that the administrative
judge ignored her allegations that the employees were not qualified for the
position or project and that she was ordered to document their failure for the
purposes of a performance-based demotion or removal. PFR File, Tab 1 at 16-17.
She further argues that these improper assignments constitute clear violations of
the merit systems principles. 5 Id.
At the jurisdictional stage, the appellant is burdened only with making a
nonfrivolous allegation that she reasonably believed that she disclosed a violation
of law, rule, or regulation; she is not required to prove that the condition she
disclosed actually established a violation of law, rule, or regulation. See Salerno,
123 M.S.P.R. 230, ¶ 6. We find that the appellant has met this burden.
Specifically, a disinterested observer with the relevant knowledge could
reasonably believe that knowingly assigning employees duties that they are not
qualified for or able to perform and documenting their inevitable failure in order
to take a performance-based action against them violates the merit systems
principles, which provide that the Federal work force should be used efficiently
and effectively and that employees should be protected against arbitrary action,
5
On review, the appellant does not renew her argument that the actions directed by her
supervisor would have violated the employees’ bargaining unit rights. PFR File, Tab 1.
Nonetheless, we note that a collective bargaining agreement is not a law, rule, or
regulation. Rather, it is a contract. E.g., Giove v. Department of Transportation,
230 F.3d 1333, 1340 (Fed. Cir. 2000). Accordingly, the appellant has not
nonfrivolously alleged that she disclosed a violation of law, rule, or regulation insofar
as she informed her supervisor and others that the directed assignments violated the
employees’ bargaining unit rights. IAF, Tab 11 at 6-8.
11
5 U.S.C. § 2301(b)(5), (8)(A), and constitutes a prohibited personnel practice
under 5 U.S.C. § 2302(b)(12). See McDonnell v. Department of Agriculture,
108 M.S.P.R. 443, ¶¶ 10-13 (2008) (finding that the appellant made a
nonfrivolous allegation that she made a protected disclosure because her alleged
disclosure concerned hiring and selection improprieties under 5 U.S.C. § 2301
that could have constituted prohibited personnel practices under 5 U.S.C.
§ 2302(b)(6) and (b)(12)); Schaeffer v. Department of the Navy, 86 M.S.P.R. 606,
¶¶ 9-10 (2000) (finding that the appellant made a nonfrivolous allegation that he
disclosed a violation of law and an abuse of authority regarding personnel
selections being made without regard to merit), overruled on other grounds by
Covarrubias v. Social Security Administration, 113 M.S.P.R. 583, ¶ 9 n. 2 (2010),
overruled by Colbert v. Department of Veterans Affairs , 121 M.S.P.R. 677
(2014). We further find that the appellant had a reasonable belief that the
violations were imminent, and thus may be protected even though it appears that
the agency did not ultimately reassign the employee to the QA Branch Chief
position or assign the CPE employee to perform a QA assignment review. See
Reid, 508 F.3d at 677-78.
In light of the foregoing, we find that the appellant nonfrivolously alleged
that she disclosed a violation of law when she refused her supervisor’s
instructions to assign the CPE employee a QA assignment and to document her
failure, and when she objected to the plan to reassign an unqualified employee to
the QA Branch Chief position and to document her failure, on the ground that
these actions violated the merit systems principles and constituted a prohibited
personnel practice.
The appellant nonfrivolously alleged that she engaged in protected activity under
5 U.S.C. § 2302(b)(9)(D).
Pursuant to 5 U.S.C. § 2302(b)(9)(D), it is a prohibited personnel practice
to take an action against an employee for “refusing to obey an order that would
12
require the individual to violate a law, rule, or regulation.” 6 PFR File, Tab 1. For
the reasons discussed above, we find that the appellant nonfrivolously alleged
that she engaged in protected activity under section 2302(b)(9)(D) when she
refused to assign a CPE employee to perform a QA assignment review and to
document her failure on the ground that doing so would violate the merit systems
principles and constitute a prohibited personnel practice. 7
The appellant nonfrivolously alleged that the agency subjected her to several
covered personnel actions.
As set forth above, the next jurisdictional inquiry is whether the appellant
has nonfrivolously alleged that her protected disclosure was a contributing factor
in the agency’s decision to take, fail to take, or threaten to take or fail to take a
personnel action. Salerno, 123 M.S.P.R. 230, ¶ 5; see 5 U.S.C. §§ 1221(e)(1),
2302(b)(8). A “personnel action” is defined as an appointment; a promotion; an
action under 5 U.S.C. chapter 75 or other disciplinary or corrective action; a
detail, transfer, or reassignment; a reinstatement; a restoration; a reemployment; a
performance evaluation under 5 U.S.C. chapter 43 or under Title 38; a decision
about pay, benefits, or awards concerning education or training if the education or
training reasonably may be expected to lead to an appointment, promotion,
performance evaluation, or other action described in 5 U.S.C. § 2302(a)(2)(A); a
decision to order psychiatric testing or examination; the implementation or
6
Prior to June 14, 2017, section 2302(b)(9)(D) made it a prohibited personnel practice
to take an action against an employee for “refusing to obey an order that would require
the individual to violate a law.” Fisher v. Department of the Interior, 2023 MSPB 11,
¶¶ 11-12. However, on June 14, 2017, the President signed into law the Follow the
Rules Act (FTRA), which amended section 2302(b)(9)(D) by inserting “, rule, or
regulation” after “law.” Id., ¶ 12. Because the events at issue in this appeal occurred
after the effective date of the FTRA, the amended section 2302(b)(9)(D) applies to this
appeal.
7
Although the appellant also contends that she objected to the agency’s plan to move
the employee into the QA Branch Chief position and to document her failure, she does
not allege that she actually refused any instruction in connection with this action. IAF,
Tab 11. Thus, we do not find that her allegations regarding this violation constitute a
nonfrivolous allegation of protected activity under section 2302(b)(9)(D).
13
enforcement of any nondisclosure policy, form, or agreement; and any other
significant change in duties, responsibilities, or working conditions. 5 U.S.C.
§ 2302(a)(2)(A).
Here, the appellant alleged that her supervisor and/or the Executive
Director took the following personnel actions against her: sent her a July 29,
2017 “hostile” email admonishing her; issued her a October 30, 2017 letter of
counseling and expectations; harassed her and subjected her to a hostile work
environment; excluded her from RA weekly management meetings; removed her
from the day-to-day responsibilities of two of the three branches under her
supervision; and lowered her performance rating for fiscal year 2017. IAF,
Tab 1, Tab 11 at 14-16. For the reasons that follow, we find that the appellant
has made a nonfrivolous allegation that some of these actions constitute covered
personnel actions.
A performance evaluation is a covered personnel action. 5 U.S.C.
§ 2302(a)(2)(A)(viii); Frederick v. Department of Veterans Affairs, 63 M.S.P.R.
563, 572 (1994). Here, the appellant alleged that her “glowing performance
review at mid-year became a barely meets expectations,” and the record reflects
that, for fiscal year 2017, her interim rating was “exceeded expectations” and her
final rating was “achieved expectations.” IAF, Tab 4 at 41, 11 at 15-16, 89. We
find that this lowered performance rating for fiscal year 2017 constitutes a
nonfrivolous allegation of a covered personnel action.
We also find that the appellant nonfrivolously alleged that the agency
subjected her to a significant change in duties, responsibilities, or working
conditions when it removed two of the three branches from her supervision and
excluded her from weekly RA management meetings. IAF, Tab 11 at 9 at 23-24;
see Skarada v. Department of Veterans Affairs , 2022 MSPB 17, ¶ 17 (finding
that the appellant nonfrivolously alleged that the agency subjected him to a
significant change in duties, responsibilities, or working conditions when he
14
alleged that his chain of command directed him to stop attending leadership
meetings and performing certain extra duties).
The Executive Director’s July 29, 2017 email “admonishing” the appellant
for escalating her concerns outside of the chain of command and her supervisor’s
October 30, 2017 letter of counseling and expectations do not constitute one of
the types of personnel actions enumerated in the statute. 5 U.S.C.
§ 2302(a)(2)(A). Nonetheless, such admonishments short of formal discipline
may be considered a threat to take disciplinary action within the meaning of
section 2302(b)(8). For example, the Board has found threatened personnel
actions when a counseling memorandum warned of specific future charges and
discipline if the behavior continued, Campo v. Department of the Army,
93 M.S.P.R. 1, ¶¶ 7-8 (2002), and when a supervisor stated that an employee
should not expect the same performance rating he had received the year before,
Special Counsel v. Hathaway, 49 M.S.P.R. 595, 600, 608 (1991), aff’d, 981 F.2d
1237 (Fed. Cir. 1992). However, not all general statements setting forth
performance expectations and the consequences of failing to meet them, or even
similar counseling measures directed at particular employees, constitute
actionable “threats” to take adverse action within the meaning of the
Whistleblower Protection Act (WPA). Koch v. Securities and Exchange
Commission, 48 F. App’x 778, 787 (Fed. Cir. 2002). 8
Here, the appellant alleged that the July 29, 2017 email from the Executive
Director was hostile and admonished her for “inappropriately contacting the
DEAC and EAC about the reorganization.” IAF, Tab 11 at 14, 23. Before OSC,
she claimed it was a “counseling or reprimand email.” Id. at 132. However, the
email simply reminded her to work through the proper chain of command before
escalating issues to executive management and pointed to several recent instances
where she had failed to do so. Id. at 98-99. It was not disciplinary in nature and
8
The Board may follow a nonprecedential decision of the Federal Circuit when, as here,
it finds its reasoning persuasive. Morris v. Department of the Navy, 123 M.S.P.R. 662,
¶ 13 n.9 (2016).
15
did not threaten any disciplinary action. Id. Thus, we find that the email does
not constitute a covered personnel action. See Ingram v. Department of the Army,
623 F. App’x 1000, 1004 (Fed. Cir. 2015) (holding that a nondisciplinary letter of
caution did not constitute a personnel action under 5 U.S.C. § 2302(a)(2)(A));
Reeves v. Department of the Army, 101 M.S.P.R. 337, ¶ 11 n.* (2005) (finding
that an appellant failed to raise a nonfrivolous allegation that a memorandum of
counseling was a personnel action when the memorandum informed him of
performance deficiencies and required corrective actions, but did not threaten to
take disciplinary action).
In the October 30, 2017 letter of counseling, the appellant’s supervisor set
forth her concerns regarding the appellant’s disrespectful and insubordinate
conduct and outlined her expectations for the appellant going forward. IAF,
Tab 11 at 127-30. She stated that, “[a]s this is the second time I am counseling
you regarding your behavior, your failure to improve your conduct may result in
disciplinary action” and that “following my instructions is essential to the
successful performance in your duties.” Id. at 129. Although this letter does
refer to possible future discipline, the language is conditional in nature and
constitutes a reminder that future conduct might result in disciplinary action,
which is true for any employee, rather than a specific threat of future discipline.
See Koch, 48 F. App’x at 787 (stating that “[a] wide range of agency rules,
directives, and counseling measures contain the message, implicit or explicit, that
failure to follow those directives or to meet expectations may have adverse
consequences, including possible discharge” and that not all such general
statements constitute threatened action within the meaning of the WPA). Thus,
we find that the letter of counseling does not constitute a threat of future
disciplinary action and therefore does not constitute a covered personnel action.
The appellant also alleged that her supervisor and the Executive Director
harassed her and subjected her to a hostile work environment when they took the
following actions: withheld an agenda from her so “her Division could not
16
prepare and present at a strategy meeting”; denied her a conversation about her
annual performance; told the EAC that her “concerns lacked integrity and she was
making false claims”; “refused to reallocate training funds for refresher training”;
made “openly demeaning comments”; delayed approval of travel authorizations;
“physical removal from her office while on [temporary duty assignment],” and
informed another supervisor that she “was not wanted back in Regulatory Audit
and it would not be good for [her] to return.” 9 IAF, Tab 11 at 8-10, 14, 16, 23-24.
Although none of these actions individually constitute a covered personnel action,
we find that these allegations of harassment and hostile work environment, in
combination with the email and letter of letter of counseling discussed above,
amount to a nonfrivolous allegation of a significant change in working conditions.
See Skarada, 2022 MSPB 17, ¶ 18 (finding that the appellant made a
nonfrivolous allegation of a covered personnel action when he alleged that his
chain of command harassed him and subjected him to a hostile work environment
by, among other things, excluding him from meetings and conversations,
subjecting him to multiple investigations, accusing him of “fabricating data” and
of a Privacy Act violation, refusing his request for a review of his position for
possible upgrade, yelling at him on three occasions, and failing to provide him the
support and guidance needed to successfully perform his duties); see also
Holderfield v. Merit Systems Protection Board, 326 F.3d 1207, 1209 (Fed. Cir.
2003) (suggesting that a number of minor agency actions relating to the
appellant’s working conditions may amount to a covered personnel action under
section 2302(a)(2)(A)(xii) collectively, even if they are not covered personnel
actions individually).
9
Although the term “hostile work environment” has a particular meaning in other
contexts, allegations of a hostile work environment may establish a personnel action in
an IRA appeal only if they meet the statutory criteria under 5 U.S.C. § 2302(a)(2)(A),
i.e., constitute a significant change in duties, responsibilities, or working conditions.
Skarada, 2022 MSPB 17, ¶ 16.
17
The appellant nonfrivolously alleged that her protected disclosure and activity
contributed to the agency’s decision to take a personnel action against her.
Having determined that the appellant nonfrivolously alleged that the
agency took covered personnel actions against her when it lowered her
performance evaluation and subjected her to a significant change in duties,
responsibilities, and working conditions, we proceed to the question of whether
she nonfrivolously alleged that her protected disclosures and activity contributed
to the agency’s decision to take these alleged personnel actions. To satisfy the
contributing factor criterion, an appellant need only raise a nonfrivolous
allegation that the fact of, or content of, the protected disclosure was one factor
that tended to affect the personnel action in any way. Ontivero v. Department of
Homeland Security, 117 M.S.P.R. 600, ¶ 21 (2012). One way to establish this
criterion is the knowledge/timing test, under which an employee may
nonfrivolously allege that the 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. Id.
Here, the record establishes that the appellant’s supervisor and the
Executive Director were aware of her disclosure of alleged gross mismanagement
because they were included on the July 19, 2017 email to the DEAC and EAC and
participated in the meeting on July 21, 2017. IAF, Tab 11 at 33 -34, 56-62. In
addition, the appellant has nonfrivolously alleged that her supervisor was aware
of her July 2017 disclosure and activity regarding the merit systems principles
violation because she directed her objections to her supervisor and refused her
instruction to assign a QA review assignment to a non-QA employee and to
document her failure. Id. at 7-8, 12. Because all of the personnel actions at issue
occurred within days or several months of the appellant’s July 2017 disclosures
and activity, we find that the appellant has satisfied the knowledge/timing test
18
and has made a nonfrivolous allegation of contributing factor. See Ontivero,
117 M.S.P.R. 600, ¶ 23 (finding that that a personnel action taken within
approximately 1 to 2 years of the appellant’s disclosures satisfies the
knowledge/timing test).
The appellant has established jurisdiction over her IRA appeal and is entitled to a
hearing.
In light of the foregoing, we find that the appellant has established Board
jurisdiction over this IRA appeal by proving exhaustion of her OSC remedies and
nonfrivolously alleging that she made at least one protected disclosure that was a
contributing factor in at least one covered personnel action. See Groseclose v.
Department of the Navy, 111 M.S.P.R. 194, ¶ 15 (2009). Accordingly, she is
entitled to the hearing she requested. Id.
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.