U.S. Merit Systems Protection Board 
Case Report for August 26, 2016 

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Note:  These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.

BOARD DECISIONS

Appellant:  Cleophas Bradley
Agency:  Department of Homeland Security
Decision Number:  2016 MSPB 30
Docket Number:  CH-1221-15-0517-W-1
Issuance Date:  September 1, 2016
Appeal Type:  Individual Right of Action (IRA)

Whistleblower Protection Act
 - Jurisdiction
 - Protected Disclosures
 - Contributing Factor

    The appellant is a Deputy Regional Director with the Federal Protective Service.  He alleged that he was not selected for the position of Director because of whistleblowing disclosures he had made.  The administrative judge dismissed the appeal for lack of jurisdiction, finding that the appellant failed to make a nonfrivolous allegation that his disclosures were a contributing factor in the agency's decision not to select him.  The judge found in this regard that the members of two panels that reviewed and scored the résumés of applicants for the Director position had no actual knowledge about the appellant's disclosures.  

Holdings:  The Board granted the appellant's petition for review, reversed the initial decision, and remanded the case to the regional office for adjudication on the merits:

1. The Board found that the appellant made nonfrivolous allegations of 6 protected whistleblowing disclosures (the appellant had claimed 10 protected disclosures), including disclosures of violations of law, rule, or regulation, gross mismanagement, and a substantial and specific danger to public health and safety.  

2. The appellant made a nonfrivolous allegation that his protected disclosures were a contributing factor in his nonselection for the Director position.  

a. One way to satisfy the contributing factor requirement 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 who took 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.  

b. In addition to the knowledge/timing test, an appellant can show that a protected disclosure was a contributing factor in a personnel action by proving that the official taking the action had constructive knowledge of the protected disclosure.  An appellant may establish the official's constructive knowledge by demonstrating that an individual with actual knowledge of the disclosure influenced the official taking the retaliatory action.  

c. The appellant alleges that senior agency officials with knowledge about his protected disclosures conspired with others not to select him for the Director position.  At this jurisdictional stage, the appellant can meet his burden of proof without specifically identifying which management officials were responsible for the reprisal.  Although the burden to establish jurisdiction is the appellant's, when the personnel action is a nonselection, the evidence concerning who was involved in the selection process, what they knew about the appellant's protected disclosures, and who may have influenced their decision is exclusively within the agency's possession.  The appellant claims that he was interviewed for the position by the selecting officials, while the agency asserts that the decision not to select the appellant was made by a panel.  This factual dispute cannot be resolved in favor of the agency in determining whether the appellant has made a nonfrivolous allegation of jurisdiction.  The Board noted in this regard that the appellant alleges that he was interviewed for the position by the Deputy Director and Director, two managers who were the subject of several of his disclosures, and was told after the interview that the Director "felt as if [he] did not have a proper vision to be in the position."



COURT DECISIONS

The U.S. Court of Appeals for the Federal Circuit issued a nonprecedential decision in the following case:

Adam v. Department of the Army, No. 2015-3111 (August 30, 2016) (MSPB Docket No. SF-1221-12-0695-B-1) (affirming the Board's decision, which determined that Adam failed to show that any protected disclosure was a contributing factor to the non-selection action which he challenged in this IRA appeal)
     

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