                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     LUIS ARIZMENDI,                                 DOCKET NUMBER
                  Appellant,                         SF-1221-14-0576-W-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: April 21, 2015
       SECURITY,
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL *

           Luis Arizmendi, Trabuco Canyon, California, pro se.

           Joel R. Alvarey, Esquire, 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 of the initial decision, which
     denied his request for corrective action in his individual right of action (IRA)
     appeal. Generally, we grant petitions such as this one only when: the initial
     decision contains erroneous findings of material fact; the initial decision is based


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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
     except as expressly MODIFIED by this Final Order. Specifically, we find that
     the appellant did not prove by preponderant evidence that he exhausted his
     remedies before the Office of Special Counsel (OSC) as to his assertion that he
     disclosed an alleged violation of safety standards set forth in regulations issued
     by the Occupational Safety & Health Administration (OSHA). We DISMISS for
     lack of jurisdiction the appellant’s claim as to that disclosure, and we VACATE
     the administrative judge’s findings concerning the merits of that claim.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        On September 17, 2013, the appellant, who has asthma, sent an email to the
     head of his subagency in which he asserted that his local managers intentionally
     exposed him to paint fumes on October 9, 2012, “with the intent to harm” when
     they permitted the General Services Administration to paint the elevator lobby of
     the building in which he worked. Initial Appeal File (IAF), Tab 11 at 80-81; see
     also IAF, Tab 7 at 43-45, Tab 13 at 27. In the email, the appellant accused local
     management of “attempted poisoning or criminal harassment.” Id., Tab 11 at 81.
     On October 23, 2013, the agency issued the appellant a letter of reprimand for
     sending the email. Id. at 19-23.
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¶3        Thereafter, the appellant filed this IRA appeal and contended that the
     reprimand constituted reprisal for his email, which he alleged was protected
     whistleblowing.    The administrative judge found jurisdiction and convened a
     hearing. IAF, Tab 28 at 4-5. Thereafter, the administrative judge found that the
     appellant did not prove that he made a protected disclosure because he failed to
     prove that he had a reasonable belief that the agency’s actions violated a law,
     rule, or regulation, or that he had a reasonable belief that the agency created a
     substantial and specific danger to public health and safety. Initial Decision (ID)
     at 6-10.    The appellant petitions for review.   Petition for Review (PFR) File,
     Tabs 1-2.
¶4        To establish a prima facie case under the Whistleblower Protection Act, the
     appellant must prove by preponderant evidence that he made a protected
     disclosure and that the disclosure was a contributing factor in a personnel action.
     McCarthy v. International Boundary & Water Commission, 116 M.S.P.R. 594,
     ¶ 29 (2011), aff’d, 497 F. App’x 4 (Fed. Cir. 2012), cert denied, 134 S. Ct. 386
     (2013).     A protected disclosure is a disclosure that an appellant reasonably
     believes evidences, as relevant here, a violation of law, rule, or regulation, or a
     substantial and specific danger to public health or safety. Id., ¶ 34. A reasonable
     belief exists if a disinterested observer with knowledge of the essential facts
     known to and readily ascertainable by the appellant could reasonably conclude
     that the actions of the government violated a law, rule or regulation or constituted
     a substantial and specific danger to public health or safety. See id. This is an
     objective test.     See, e.g., Miller v. Department of Homeland Security,
     111 M.S.P.R. 312, ¶ 5 (2009). The appellant need not prove that the condition
     disclosed actually established a violation of law or regulation; rather, he must
     show that the matter disclosed was one that a reasonable person in his position
     would believe evidences a violation of law or regulation.                McCarthy,
     116 M.S.P.R. 594, ¶ 34.
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     The Board lacks jurisdiction over the appellant’s claim concerning his purported
     disclosure of a violation of OSHA regulations.
¶5        In an IRA appeal, an appellant must first prove that the Board has
     jurisdiction over the appeal by, inter alia, proving that he exhausted his
     administrative remedies before OSC. Clarke v. Department of Veterans Affairs,
     121 M.S.P.R. 154, ¶ 11 (2014).        To satisfy the exhaustion requirement, an
     appellant must inform OSC of the precise ground of his whistleblowing claim,
     giving OSC a sufficient basis to pursue an investigation that might lead to
     corrective action. Id., ¶ 12. The test of the sufficiency of an appellant’s claim to
     OSC is the statement that he made in the complaint requesting corrective action,
     not his post hoc characterization of those statements.     Id.; see Ward v. Merit
     Systems Protection Board, 981 F.2d 521, 526 (Fed. Cir. 1992). Exhaustion with
     OSC is a jurisdictional prerequisite to Board consideration of the substance of the
     appellant’s allegedly protected disclosures and the scope of an IRA appeal is
     limited to those disclosures raised before OSC. Clarke, 121 M.S.P.R. 154, ¶ 16.
¶6        In his original disclosure to the agency and his OSC complaint, the
     appellant contended that the agency posed a substantial and specific danger to
     public health and safety and violated unspecified criminal law. IAF, Tab 4 at 11,
     Tab 11 at 80-81. Specifically, in his OSC complaint, in response to a question
     asking “What information did the victim disclose?” the appellant responded
     “Substantial and specific danger to public health or safety” and “Violation of Law
     (criminal).” IAF, Tab 4 at 11. Further, he asserted in the narrative portion of his
     OSC complaint that he disclosed potential criminal conduct and a substantial and
     specific danger to public health or safety. Id. He later fleshed out his allegations
     on appeal by contending that the agency violated California Penal Code § 375 and
     OSHA’s regulations at 29 C.F.R. § 1910.134 and 29 C.F.R. part 1926 when it
     exposed employees and the public to paint fumes.       IAF, Tab 17 at 6, Tab 25.
     Although the administrative judge implicitly found that the appellant exhausted
     his administrative remedies before OSC, ID at 4, nowhere in his original
                                                                                       5

     disclosure or in his OSC complaint did the appellant claim that he disclosed a
     violation of OSHA regulations, see IAF, Tab 4 at 8-14, Tab 11 at 80-81. Because
     he did not claim before OSC that he disclosed a violation of OSHA regulations,
     he has not exhausted his administrative remedies regarding that disclosure and the
     Board lacks jurisdiction to consider it.    See Boechler v. Department of the
     Interior, 109 M.S.P.R. 638, ¶ 12 (2008) (where the record showed that the
     appellant raised to OSC a disclosure he made to the agency’s Inspector General
     but did not raise to OSC the remaining disclosures he raised in his appeal, the
     remaining disclosures were beyond the scope of the Board’s review), aff’d, 328 F.
     App’x (Fed. Cir. 2009). Accordingly, we VACATE the administrative judge’s
     finding concerning the merits of the appellant’s claim concerning the alleged
     violation of OSHA regulations, and DISMISS that claim for lack of jurisdiction.
     The appellant’s disclosure concerning alleged violations of state criminal law was
     not protected.
¶7        The appellant asserted in his original disclosure and restated in his hearing
     testimony that he believes that particular agency officials intentionally exposed
     him to paint fumes because they know he has asthma and they intended to harm
     him, and that the painting episode was actually an attempted poisoning in
     violation of California Penal Code § 375.     See IAF, Tab 11 at 80-81.       The
     appellant testified that, aside from a security guard in the main lobby, there was
     no one but him in the entire 8-floor building on October 9, 2012, a Tuesday. See
     Hearing Compact Disc (testimony of the appellant). The appellant then concludes
     that the agency must have warned and evacuated everyone else to ensure that only
     he was exposed to allegedly poisonous fumes and, thus, the agency intentionally
     tried to poison him.
¶8        There is no evidence that corroborates the appellant’s claim that he was
     alone that day and the administrative judge found that his assertions that the
     building was empty and the agency intentionally attempted to poison him was
     inherently improbable and not credible. ID at 7. Aside from asserting that the
                                                                                        6

      administrative judge’s finding is incorrect, the appellant offers no reason on
      review for disturbing that finding. We agree with the administrative judge that
      the appellant has not shown by preponderant evidence that his apparent belief that
      the agency’s actions constituted an attempted poisoning in violation of California
      law was reasonable.     Thus, the administrative judge correctly found that the
      appellant did not prove that this disclosure was protected.
      The appellant’s disclosure concerning an alleged substantial and specific danger
      to public health and safety was not protected.
¶9         Disclosures regarding danger to the public health or safety must be both
      substantial and specific to be protected.     Miller, 111 M.S.P.R. 312, ¶ 6.      A
      disclosure of a speculative danger does not meet this test.      Id. Factors to be
      considered in determining whether a disclosed danger is sufficiently substantial
      and specific to be protected include whether a substantial, specific harm was
      identified and whether the evidence supported a finding that the harm had already
      been realized or was likely to result in the reasonably foreseeable future.
      Chambers v. Department of the Interior, 602 F.3d 1370, 1376 (Fed. Cir. 2010).
¶10        The appellant asserts that paint fumes are dangerous, and surely they
      sometimes are, depending on the nature of the exposure and the sensitivities of
      the people exposed. However, the appellant merely stated that “Paint fumes are
      known to most people to be harmful” and introduced no evidence to corroborate
      his assertion that the danger posed by an occasional short-term exposure to paint
      fumes is substantial and specific. PFR File, Tab 2 at 9.
¶11        In Chambers, the Federal Circuit found that the appellant disclosed a
      substantial and specific danger to public health or safety when she disclosed that
      a reduction in the number of police officers available resulted in more traffic
      accidents because the risk was specific, i.e., an increase in traffic accidents, and
      substantial rather than speculative because the risk had already occurred.
      Chambers, 602 F.3d at 1379. Similarly, in Aquino v. Department of Homeland
      Security, 121 M.S.P.R. 35 (2014) and Miller, the appellants disclosed that
                                                                                         7

      changes in airport screening and crowd management procedures led to a greater
      risk of a breach of security.     The Board found that these disclosures were
      substantial and specific because the consequences of the risks identified in the
      disclosures could result in devastating and obvious harm. Aquino, 121 M.S.P.R.
      35, ¶¶ 14-17; Miller, 111 M.S.P.R. 212, ¶¶ 15-19. Here, however, the appellant
      has at best identified a potential future danger to public health and safety that has
      not been shown to be substantial and that occurs only occasionally, making the
      risk of exposure to the alleged danger relatively unlikely. Therefore, it is not
      protected.
      The appellant’s motion for leave to submit an additional pleading after the record
      closed on review is denied.
¶12        After the record closed on review, the appellant filed a motion for leave to
      file an additional pleading. PFR File, Tab 8. In his motion, he asserted that the
      agency had recently exposed him to paint fumes again and that this constitutes
      new and material evidence of the agency’s ongoing reprisal. Id. Because the
      appellant’s new evidence, as described in his proffer, does not relate to the issue
      of reasonable belief, it is not relevant to the outcome of his petition for review.
      Therefore, we DENY the appellant’s motion.

                        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 the United States Court of Appeals for the Federal Circuit to review this
      final decision.
           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
                                                                                        8

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 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
                                                                              9

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
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.
