U.S. Merit Systems Protection Board 
Case Report for November 30, 2012

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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:  James F. Mattil
Agency:  Department of State
Decision Number:  2012 MSPB 127
Docket Number:  DC-1221-11-0274-W-1
Issuance Date:  November 21, 2012
Appeal Type:  Individual Right of Action (IRA)

Whistleblower Protection Act
 - Order in Which Merits Issues are Considered
 - Covered Personnel Actions
 - Clear and Convincing Evidence
 

    The appellant petitioned for review of an initial decision that denied his request for corrective action in this IRA appeal.  The appellant held a temporary appointment (not to exceed a specified date) as Chief of Staff with the agency's Office of Accountability and Transparency in its Iraq Reconstruction Management Office and its successor entity, the Iraq Transition Assistance Office.  He alleged that the agency took numerous personnel actions in retaliation for two protected whistleblowing disclosures.  As for the first, he alleged that he informed the Regional Security Officer at the U.S. Embassy in Baghdad that an individual was violating security policy and endangering the lives of security personnel.  He claimed that this disclosure angered his immediate supervisor because the supervisor feared it might impede his own chances for advancement.  The appellant alleged that in retaliation for this disclosure, the agency told him to "forgo" his chief of staff duties and "denied" him the opportunity to extend his appointment beyond 1 year.  As for the second disclosure, the appellant alleged that he disclosed information to the House Committee on Oversight and Government Reform about corruption in Iraq and actions by the Iraqi Prime Minister to undermine anti-corruption programs in Iraq, and that this disclosure generated a request by Representative Waxman for the appellant to appear before the Oversight Committee.  The appellant claimed that, as a result of this disclosure, the agency conducted an investigation into whether he was the source of a leak of information, relieved him of his duties, ordered him to work from home rather than return to Iraq, denied him access to agency computers, phones, resources, and offices, and excluded him from communications related to ongoing events.  

     The administrative judge found that the appellant's submissions constituted a nonfrivolous allegation of jurisdiction that entitled him to a hearing on the merits of his whistleblowing claim.  The judge decided to bifurcate the hearing, first addressing whether the agency could prove by clear and convincing evidence that it would have taken all of the appellant's alleged personnel actions absent the appellant's alleged whistleblowing.  Following the hearing, the judge denied the appellant's request for corrective action, finding that the agency established by clear and convincing evidence that it would have taken the alleged personnel actions absent the appellant's alleged disclosures.  In reaching this conclusion, the judge credited the testimony of the agency witnesses that the personnel actions were unrelated to the appellant's alleged whistleblowing, and he found that the appellant's version of the incidents lacked credibility.  

Holdings:  The Board vacated the initial decision and remanded the case to the regional office for further adjudication:

1.  Full and fair consideration of the appellant's claim requires adjudication of both the merits of his prima facie case of whistleblower reprisal as well as the agency's affirmative defense.  

a.  In order to establish a prima facie claim of whistleblower reprisal, the employee must prove by preponderant evidence that he made a protected disclosure and that the disclosure was a contributing factor in a personnel action against him.  If the appellant makes out a prima facie claim, the agency is given an opportunity to prove, by clear and convincing evidence, that it would have taken the same personnel actions in the absence of the protected disclosure.

b.  Although there are times when a judge may properly determine whether the agency met its burden of showing by clear and convincing evidence that it would have taken the personnel actions at issue absent the appellant's alleged whistleblowing before proceeding to whether the appellant established a prima facie case of reprisal, such an approach is not always appropriate.  When, as here, the substance of the alleged disclosure, as well as the extent to which the retaliating official was aware of the disclosure, is relevant to retaliatory motive, adjudication of both the merits of the appellant's prima facie case as well as the affirmative defense is required.  

2.  On remand, the judge shall allow the parties to further develop the record regarding certain alleged personnel actions.  

a.  The appellant alleged that the agency took 5 actions in retaliation for his first disclosure, and 12 actions in retaliation for the second disclosure.  The judge found that only one of the alleged actions relating to the first disclosure -- the agency's denial of an extension of the appellant's appointment -- and 3 of alleged actions relating to the second disclosure -- alleging a significant change in duties, responsibilities, or working conditions -- were personnel actions covered under 5 U.S.C. 2302(a)(2)(A).  The Board agreed that these were covered personnel actions.

b.  The Board agreed with the judge's determination that a failure to provide a valid position description does not constitute a significant change in working conditions.

c.  The Board agreed with the appellant's claims regarding the denial of an extension of his appointment, the elimination of his position, and his termination.  Because all 3 matters are intertwined, the Board found, contrary to the administrative judge, that all 3 are covered personnel actions.  

d.  Although an investigation is not generally a personnel action, it is proper to consider evidence regarding an investigation if it is so closely related to a covered personnel action that it could have been a pretext for gathering information to retaliate for whistleblowing.  The appellant should be afforded the opportunity to develop this claim on remand.  

e.  The appellant made a nonfrivolous allegation that the agency's failure to process his EEO complaint in its usual manner may constitute a significant change in working conditions.  

f.  The Board disagreed with the judge's determination that the appellant's claim that the agency "blacklisted" him from employment opportunities could not constitute a covered personnel action.  Although "blacklisting" per se is not an enumerated personnel action, construed broadly it could constitute a failure to appoint if the appellant identifies particular employment opportunities that the agency denied as part of the alleged "blacklisting."  

3.  The judge must address both the evidence supporting the conclusion that the agency proved its 
affirmative defense by clear and convincing evidence and the countervailing evidence.

a.  In Whitmore v. Department of Labor, 680 F.3d 1353 (Fed. Cir. 2012), the Federal Circuit explained that, in determining whether an agency has proven that it would have taken the same personnel action in the absence of a protected disclosure, the Board must consider all the pertinent record evidence.  In evaluating the existence and strength of any motive to retaliate, the court cautioned the Board against taking an unduly dismissive and restrictive view, noting that, where the whistleblowing disclosure reflects on agency officials in their capacities as managers and employees, or is highly critical of an agency's conduct, agency officials may be motivated to retaliate even when they are not directedly implicated by the disclosures, do not know the whistleblower personally, are outside the whistleblower's chain of command, were not directly involved in the alleged retaliatory actions, or were not personally named in the disclosure.

b.  Here, the judge focused almost exclusively on the hearing testimony in making his clear and convincing evidence determination. In doing so, he mainly discussed the agency's testimony supporting its reason for taking the actions at issue. In fact, the administrative judge did not discuss any evidence supporting the appellant's position for some of these alleged personnel actions at issue.  The initial decision also omits discussion or meaningful analysis of the appellant's claims that his supervisor expressed a motive to retaliate against the appellant for his whistleblowing because the supervisor feared that the appellant's action would hamper the supervisor’s career, and that the appellant was the only employee denied an extension and whose position was threatened with elimination.  




Appellant:  Christina D. Hathaway
Agency:  Office of Personnel Management
Decision Number:  2012 MSPB 128
Docket Number:  DA-0831-11-0274-I-2
Issuance Date:  November 21, 2012
Appeal Type:  Retirement/Benefit Matter
Action Type:  Survivor Annuity

Retirement - Survivor Annuity

    The appellant petitioned for review of an initial decision that affirmed an OPM reconsideration decision that denied the appellant's claim for a survivor annuity based on the service of her late husband.  OPM found that Mr. Hathaway elected not to provide a survivor annuity for the appellant, that the appellant freely consented to the election, and that Mr. Hathaway did not change his election during the 18-month period immediately following his retirement.  The administrative judge affirmed each of these findings on appeal.  On review, the Board issued an Order noting that evidence of the appellant's consent was filed on an OPM Form 1431, rather than on SF 2801-2, and asked the parties to file briefs on whether consent on Form 1431 can constitute "[e]vidence of spousal consent . . . filed on a form prescribed by OPM," as required by 5 C.F.R. 831.614(b).  

Holdings:  The Board affirmed the initial decision:

1.  The Board affirmed the initial decision as to the findings that OPM gave the required notices to Mr. Hathaway following his retirement as to his right to provide a survivor annuity for his wife and that Mr. Hathaway's retirement application elected "an annuity payable only during my lifetime."  

2.  Regarding the issue of the manner in which spousal consent was documented, the Board noted that OPM's CSRS and FERS Handbook provides that "[s]pousal consent must be given on [an] SF 2801-2," and that the instructions on the SF 2801 instruct applicants electing a self-only annuity to attach an SF 2801-2.

3.  The Board credited OPM's explanation that where, as here, evidence of spousal consent filed on OPM Form 1431 supplements an incomplete SF 2801-2, the information on the Form 1431 constitutes evidence of spousal consent filed on a form prescribed by OPM.  As OPM correctly noted, neither statute nor regulation requires that a waiver can only be made in a signed SF 2801-2, and Form 1431 meets the requirements specified in 5 C.F.R. 831.614(c).  



Appellant:  Jodie Loredo
Agency:  Department of the Treasury
Decision Number:  2012 MSPB 129
Docket Number:  DE-0752-11-0442-I-1
Issuance Date:  November 23, 2012
Appeal Type:  Adverse Action by Agency

Jurisdiction - Reduction in Grade

    The appellant petitioned for review of an initial decision that dismissed her appeal for lack of jurisdiction.  On October 5, 2010, the appellant's supervisor notified her that the agency had decided to reassign her from her Supervisory Clerk Position.  The supervisor offered the appellant a lateral reassignment into another management position or a downgrade to a Tax Examining position.  On October 22, 2010, the appellant signed a memorandum stating the she was requesting reassignment to the Tax Examiner position; she acknowledged that the reassignment was a downgrade and stated the action was voluntary.  On October 27, however, she stated her decision to decline the downgrade to the Tax Examiner position.  Effective November 21, 2010, the agency nevertheless effected the demotion and this appeal followed.  The administrative judge dismissed the appeal for lack of jurisdiction, finding that the appellant failed to establish that her reduction in grade was involuntary.  

Holdings:  Although the Board found the appellant's allegations of error to be without merit, it remanded the appeal for further adjudication based on a legal theory not considered below:

1.  An employee has a right to withdraw an alleged voluntary demotion request at any time before its effective date unless the agency has a valid reason for refusing to permit the withdrawal.  Valid reasons include, but are not limited to, administrative disruption or the hiring of a replacement.

2.  Here, the agency does not dispute that the appellant changed her mind regarding her demotion and attempted to withdraw her demotion request prior to its effective date.  The case must be remanded for a determination whether the agency had a valid reason for refusing the permit the withdrawal of the demotion request.  




COURT DECISIONS

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

Jones v. Merit Systems Protection Board, No. 2012-3120 (Nov. 29, 2019) (MSPB Docket No. DA-0752-11-0468-I-1) (affirming the Board's decision, which dismissed Jones's appeal for lack of jurisdiction)
     
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