                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     LINDA S. SHENWICK,                              DOCKET NUMBER
                   Appellant,                        NY-1221-12-0096-W-2

                  v.

     GENERAL SERVICES                                DATE: September 30, 2014
       ADMINISTRATION,
                  Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           James F. Peterson, Esquire, and Paul J. Orfanedes, Esquire, Washington,
             D.C., for the appellant.

           Floyd Allen Phaup II, Esquire, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     denied her request for corrective action in connection with her individual right of
     action (IRA) appeal. Generally, we grant petitions such as this one only when:

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     the initial decision contains erroneous findings of material fact; the initial
     decision is based on an erroneous interpretation of statute or regulation or the
     erroneous application of the law to the facts of the case; the 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, and based on the following points and authorities, 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).
¶2         On October 11, 2011, the appellant filed a Board appeal in which she
     alleged that the agency effectively demoted her when she was reassigned,
     effective September 11, 2011, from her position as a GS-15 Attorney Advisor
     with the General Services Administration’s (GSA) Public Buildings Service,
     Office of the Regional Commissioner, to a GS-15 Attorney Advisor “virtual”
     position with the Office of Organizational Resources, Office of Acquisition
     Management, Industry Relations Division. 2 The administrative judge dismissed
     the appeal for lack of jurisdiction on the basis that the appellant did not suffer a
     loss in pay or grade and failed to nonfrivolously allege that the Board had
     jurisdiction over the action as a constructive demotion. 3 Shenwick v. General

     2
       Although the appellant’s new position was located in Central Office, she was not
     required to relocate to the Washington, D.C. area; rather, an office was located for her
     in New York, adjacent to offices of other Central Office virtual employees. See MSPB
     Docket No. NY-1221-0096-W-1, Initial Appeal File (W-1 IAF), Tab 6 at 111.
     3
      That decision became the Board’s final decision on February 29, 2012, when neither
     party filed a petition for review.
                                                                                          3

     Services Administration, MSPB Docket No. NY-3443-12-0008-I-1, Initial
     Decision at 5-9 (Jan. 25, 2012).           Because the appellant alleged during
     adjudication that her reassignment was in retaliation for her protected
     whistleblowing activities, the administrative judge issued a jurisdictional order
     setting forth the proof requirements for such a claim. Id. at 5.
¶3         On October 13, 2011, the appellant filed a complaint with the Office of
     Special Counsel (OSC). W-1 IAF, Tab 1 at 32-62. Therein she asserted that the
     agency’s action was based on disclosures she made to the Regional Commissioner
     for Public Services, Legal Advisor or Regional Administrator’s Office regarding:
     (1) poor or no federal position management; (2) nepotism; (3) improper practices
     associated with government spaces; (4) the absence of “position ceiling” within
     GSA Region 2; (5) noncompetitive hiring in GSA Region 2; (6) pre-selection in
     hiring; and (7) improper conduct of an audit. Id. at 39-40, 45-46.
¶4         On February 21, 2012, not having received a decision from OSC, the
     appellant filed an IRA appeal with the Board in which she raised the same claims
     she had raised to OSC. 4     Id., Tab 1.   Based on the parties’ submissions, the
     administrative judge found that the appellant had established the Board’s
     jurisdiction over her appeal. Id., Tab 12. Specifically, the administrative judge
     found that the appellant exhausted her administrative remedy before OSC, id.
     at 3, and nonfrivolously alleged that she made five protected disclosures, 5 id.
     at 3-10, and that they were a contributing factor in her reassignment, a covered
     personnel action.    Id. at 10-11.   The administrative judge concluded that the
     appellant was entitled to a hearing at which to prove her claims. Id. at 13.

     4
       On March 16, 2012, OSC issued a letter advising the appellant that its further
     consideration of her claims was now moot given that she had filed an IRA appeal. W-1
     IAF, Tab 10 at 11.
     5
       The administrative judge found that the appellant had failed to nonfrivolously allege
     that she made a protected disclosure as to her claims regarding (4) the absence of a
     “position ceiling” and (5) noncompetitive hiring within GSA Region 2. W-1 IAF,
     Tab 12 at 7-8. The appellant did not then, or thereafter, challenge this finding.
                                                                                           4

¶5         During the prehearing conference, the administrative judge reiterated that
     the same five alleged protected disclosures were at issue. MSPB Docket No. NY-
     1221-12-0096-W-2, Initial Appeal File (W-2 IAF), Tab 12 at 2-3.               She also
     acknowledged the appellant’s additional claim that she was a “perceived
     whistleblower” 6 and directed the appellant to further address the issue, id. at 3,
     which she did, id., Tab 13. Thereafter, the administrative judge determined that
     the issue of whether the appellant was a perceived whistleblower would be
     considered. Id., Tab 18.
¶6         Following a hearing, the administrative judge issued an initial decision in
     which she denied the appellant’s request for corrective action. Id., Tab 40, Initial
     Decision (ID) at 2, 58. The administrative judge found that the appellant
     established that she made the five protected disclosures at issue, ID at 14-21; that
     she was also “perceived as” a whistleblower, ID at 21-24; that the individuals
     who made the decision to reassign her knew of her whistleblowing background
     and of her disclosure relating to nepotism and acted to reassign her within a
     relatively short amount of time, ID at 25-26; and that therefore she established,
     under the knowledge/timing test, that a protected disclosure she made was a
     contributing factor in her reassignment, ID at 26.
¶7         The administrative judge then found that the agency showed by clear and
     convincing evidence that it would have reassigned the appellant in the absence of
     her whistleblowing.     In so doing, the administrative judge acknowledged the
     factors appropriate for consideration, that is, the strength of the agency’s
     evidence in support of its action, whether, and to what extent, agency officials
     who were involved in the decision had a motive to retaliate, and evidence that the
     agency   takes   similar   action   against   nonwhistleblower,      similarly-situated

     6
       This claim pertains to the appellant’s assertion that, prior to working at the agency,
     she worked at the Department of State where she also made protected disclosures which
     resulted in her appearing on the Nightline News program and in some major
     newspapers. The appellant claimed that, from the time she came to the agency, her
     coworkers knew of her whistleblowing background. W-1 IAF, Tab 1.
                                                                                           5

     employees. Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed.
     Cir. 1999).   In applying the factors, the administrative judge considered the
     evidence and testimony presented by the agency as well as that submitted by the
     appellant. ID at 27-57; see Whitmore v. Department of Labor, 680 F.3d 1353,
     1368 (Fed. Cir. 2012). Upon review, the administrative judge concluded that the
     factors all weighed in the agency’s favor. ID at 57-58. The administrative judge
     stated that she was not persuaded that the appellant was, in fact, subject to a
     geographic reassignment. ID at 58.
¶8         The appellant has filed a petition for review, Petition for Review (PFR)
     File, Tab 1, the agency has responded to the appellant’s petition, 7 id., Tab 3, and
     she has replied to the agency’s response, id., Tab 5.
¶9         In finding that the agency proved by clear and convincing evidence that it
     would have reassigned the appellant, even absent her protected disclosures, the
     administrative judge found under the first Carr factor that there was strong
     evidence in support of the agency’s personnel action. She found that the evidence
     included the fact that there were a number of complaints brought to the Deputy
     Regional Commissioner’s attention by various employees and the Division
     Directors during his one-to-one meetings with them 8; that, once it was determined
     that the appellant should be moved out of her Executive Officer position, the
     agency offered her a number of options that would have allowed her to stay in her
     current location; but when she resisted all of them, the agency determined that the

     7
       The appellant argues that the agency’s response should be dismissed as untimely filed.
     PFR File, Tab 5. According to the Board’s Order, the agency’s response was due on or
     before April 13, 2014. Id., Tab 2. Because April 13, 2014 was a Sunday, the agency’s
     response was due on or before the next business day, or April 14, 2014. 5 C.F.R.
     § 1201.23. However, it was not filed until April 15, 2014. PFR File, Tab 3; 5 C.F.R.
     § 1201.4(l). Because the agency’s response was not timely filed, we have not
     considered it. For that reason, we also have not considered the appellant’s reply to the
     agency’s response.
     8
       These complaints related to the appellant’s having taken various actions that were
     viewed as having adversely affected office morale and created the perception that she
     “controlled” the Regional Commissioner. ID at 29-35.
                                                                                       6

      only feasible option was to reassign her to the virtual position. ID at 52-56. As
      to the second Carr factor, the existence and strength of any motive to retaliate on
      the part of the agency officials who were involved in the decision, the
      administrative judge found that the principal players, the Deputy Regional
      Commissioner and the Regional Commissioner, had little motive to retaliate
      against the appellant because they were both new to their positions and were
      simply endeavoring, by their decision, to ensure that the needs of the agency were
      met.   ID at 56.   In this regard, the administrative judge found credible the
      testimony of those agency officials that their decision to reassign the appellant
      was not in retaliation for her protected disclosures or because they perceived her
      as a whistleblower. ID at 56. As to the third Carr factor, any evidence that the
      agency takes similar actions against employees who are not whistleblowers but
      who are otherwise similarly-situated, the administrative judge found that four
      other Directors who were not whistleblowers were also removed from their
      positions on the Board of Directors. ID at 57. Weighing all these factors, the
      administrative judge found that she was left with a firm belief that the agency
      would have taken the reassignment action in the absence of the appellant’s
      protected disclosures or the fact that she was perceived as a whistleblower. ID
      at 57-58.
¶10          The Board will not disturb an administrative judge’s findings when she
      considered the evidence as a whole, drew appropriate inferences, and made
      reasoned conclusions of credibility.      See Crosby v. U.S. Postal Service,
      74 M.S.P.R. 98, 105-06 (1997); see also Broughton v. Department of Health &
      Human Services, 33 M.S.P.R. 357, 359 (1987). The Board must give deference to
      an administrative judge’s credibility determinations when 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) .
                                                                                            7

¶11         Our review of the record shows that, in finding that the agency proved by
      clear and convincing evidence that it would have reassigned the appellant absent
      her   protected   disclosures,   the   administrative   judge    complied    with   the
      requirements of Crosby and Broughton by making detailed findings of fact and
      reasoned credibility determinations. The administrative judge made certain such
      determinations based explicitly on witness demeanor, see ID at 49 (“the appellant
      was at times evasive when asked questions related to complaints that Division
      Directors brought against her” and “the undersigned administrative judge had to
      direct her to answer a question because she had failed to do so.”).                 The
      administrative judge also implicitly made credibility determinations when she
      found that management received complaints about the appellant’s performance
      issues, see ID at 45 (“I find that [the appellant’s witness’s] testimony was not
      worthy of belief”), that the appellant was aware of these complaints, see ID at 48
      (the appellant’s testimony . . . is not worthy of belief”), that she was advised of
      the reasons why she was being taken out of her Executive Officer position, see
      ID at 52 (“I find that . . . the appellant’s claim . . . is not credible”), and that the
      Regional Commissioner and Deputy Regional Commissioner’s decision to
      reassign the appellant was not in retaliation for either her protected disclosures or
      the fact that she was a “perceived” whistleblower, see ID at 56 (“I also find that
      their testimony . . . was credible.”). We find that the appellant has failed to show
      that the administrative judge made erroneous findings of material fact in finding
      that the agency proved by clear and convincing evidence that it would have
      reassigned the appellant absent her protected disclosures. 9

      9
         The appellant argued that the administrative judge erred in considering the
      management inquiry that the agency conducted into the anonymous complaints filed
      against her because, in her view, the investigation was flawed. In and of itself, this
      claim, which arguably goes to the first Carr factor, does not command a different result
      than that reached by the administrative judge. Moreover the appellant’s reliance on
      Kalkines v. United States, 473 F.2d 1391, 1394 (Ct. Cl. 1973), is misplaced. There, the
      court held that an employee could not be discharged for failing to answer questions
      concerning his finances and payments from importers where, although there was a
                                                                                             8

¶12         On review, the appellant contends that the administrative judge erred in
      concluding that she did not receive a management-directed geographical
      reassignment and argues that, consistent with Miller v. Department of the
      Interior, 120 M.S.P.R. 426 (2013), the agency is required but failed to
      demonstrate that her geographic reassignment promotes the efficiency of the
      service. As noted, although the position to which the appellant was reassigned
      was located in Central Office, she was not required to relocate to the Washington,
      D.C. area; rather, an office was located for her in New York, adjacent to offices
      of other Central Office virtual employees. W-1 IAF, Tab 6 at 111. Moreover,
      Miller is otherwise inapposite. There, the appellant was, in fact, geographically
      reassigned and, when she refused the reassignment, she was removed.                After
      finding that the agency failed to show that its reasons for the reassignment were
      bona fide, the Board concluded that the removal action did not promote the
      efficiency of the service, as required to be valid under 5 U.S.C. § 7513(a) (an
      agency may take an action covered by this subchapter [relating to adverse
      actions] against an employee only for such cause as will promote the efficiency of
      the service).   Miller, 120 M.S.P.R. 426, ¶¶ 22-24.          In the instant case, the
      appellant did not refuse the reassignment and the agency did not take an adverse
      action against her. Rather, the case is before the Board as an IRA appeal where
      the issue is not the merits of the personnel action but whether it was taken in
      retaliation for the appellant’s whistleblowing activity.              See Johnson v.
      Department of Justice, 104 M.S.P.R. 624, ¶ 31 (2007). Therefore the Board’s
      holding in Miller does not advance the appellant’s cause.
¶13         Finally, the appellant argues that the administrative judge erred in denying
      her the opportunity to present rebuttal testimony at the hearing.           The record


      pending criminal investigation, he was not advised that his answers or their fruits could
      not be used in the criminal case. Here, there is no suggestion of any possible
      constitutional violation in the manner in which the administrative investigation was
      conducted.
                                                                                    9

reflects that, on the fourth and final day of the hearing, at the conclusion of the
testimony of the last witness, the appellant’s counsel requested to recall the
appellant as a rebuttal witness.        Hearing Transcript (HT) at 595.           The
administrative judge asked for an offer of proof as the reason for the request. HT
at 595-96. The appellant’s counsel proffered that the appellant would testify as to
matters addressed during the agency’s case in chief that “we did not anticipate.”
HT at 596-97.     Counsel for the agency argued that the proffered testimony
consisted of “things that she’s already testified about,” HT at 597, and the
administrative judge agreed, HT at 597-98. The appellant’s counsel then offered
to limit the testimony to a single issue related to an office that was allegedly built
for the appellant in the Regional Commissioner’s suite, but the administrative
judge ruled that that matter was not material to her inquiry. HT at 598. The
appellant’s counsel made another offer of proof on a different issue but
subsequently withdrew it. HT at 599-600. His failure to preserve an objection to
the administrative judge’s rulings on this matter precludes his doing so now. See
Miller v. U.S. Postal Service, 117 M.S.P.R. 557, ¶ 7 (2012).

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS7
      You have the right to request review of this final decision by the United
States 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
                                                                                   10

the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States 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 United States 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 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 United States 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
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
        If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for a list of attorneys who have expressed
interest in providing pro bono representation for Merit Systems Protection Board
appellants before the Federal Circuit.       The Merit Systems Protection Board
                                                                           11

neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
