                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     DORETHA MCDELL,                                 DOCKET NUMBER
                 Appellant,                          DA-1221-14-0341-W-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: June 3, 2015
                 Agency.



                  THIS ORDER IS NO NPRECEDENTIAL 1

           Henry Mesa, El Paso, Texas, for the appellant.

           John Lyslaught, Fort Bliss, Texas, for the appellant.

           Betty Baxter, Esquire, and Therese M. Novell, Esquire, Warren, Michigan,
             for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1        The appellant has filed a petition for review of the initial decision, which
     dismissed her appeal for lack of jurisdiction. For the reasons discussed below, we



     1
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     GRANT the appellant’s petition for review and REMAND the case to the regional
     office for further adjudication in accordance with this Order.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The appellant, a Contract Procurement Analyst, filed an individual right of
     action (IRA) appeal claiming that she disclosed alleged contracting and
     procurement improprieties to the Office of the Inspector General (IG), agency
     attorneys, a member of Congress, and the Government Accountability Office
     (GAO). Initial Appeal File (IAF), Tab 1. She asserts that in retaliation for her
     disclosures, the agency issued her a lower performance rating than she deserved,
     failed to select her for promotion, excluded her from some staff meetings, and
     denied her training opportunities. Id.
¶3         The administrative judge found that the appellant had exhausted her
     administrative procedures before the Office of Special Counsel (OSC) regarding
     some of her alleged protected disclosures and had made a nonfrivolous allegation
     that she made disclosures protected under 5 U.S.C. § 2302(b)(8). IAF, Tab 15,
     Initial Decision (ID) at 5-6. However, the administrative judge found that the
     appellant failed to make a nonfrivolous allegation that any official who took the
     personnel actions against her had knowledge of her disclosures. ID at 6-8. On
     that basis, he dismissed the appeal for lack of jurisdiction.
¶4         In her petition for review, the appellant asserts that the administrative judge
     failed to consider all of her submissions on the jurisdictional issue. Petition for
     Review (PFR) File, Tab 1.       Generally, to establish jurisdiction over an IRA
     appeal regarding activity protected under 5 U.S.C. § 2302(b)(8), an appellant
     must prove that she exhausted her administrative remedies before OSC and make
     nonfrivolous allegations that (1) she engaged in whistleblowing activity by
     making a protected disclosure under 5 U.S.C. § 2302(b)(8), and (2) the disclosure
     was a contributing factor in the agency’s decision to take or fail to take a
     personnel action as defined by 5 U.S.C. § 2302(a).         Yunus v. Department of
                                                                                     3

     Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001); Rusin v. Department of
     the Treasury, 92 M.S.P.R. 298, ¶ 12 (2002).        The question of whether the
     appellant has made a nonfrivolous allegation of fact is determined based on the
     written record, without holding a hearing.       Boechler v. Department of the
     Interior, 109 M.S.P.R. 638, ¶ 6 (2008).
¶5        We agree with the administrative judge that the appellant established
     through her written submissions she exhausted administrative procedures before
     OSC regarding her disclosures to the IG and agency attorneys. ID at 5-6. We
     also agree that the appellant made a nonfrivolous allegation that she had a
     reasonable belief that, in her complaint to the IG, which referenced her
     communications to agency attorneys, she disclosed that an employee at the
     agency was preselecting contractors or providing an unfair advantage to favored
     contractors, a protected disclosure under 5 U.S.C. § 2302(b)(8). ID at 5-6.
¶6        However, we disagree with the administrative judge’s conclusion that the
     appellant failed to make a nonfrivolous allegation that her alleged protected
     disclosures were a contributing factor to the manager’s decisions to give her a
     lowered performance rating, deny her a promotion, give her a reduced workload,
     and deny her training opportunities. To satisfy the contributing factor criterion,
     an appellant need only raise a nonfrivolous allegation that the fact or content of
     the protected disclosure was one factor that tended to affect the personnel action
     in any way. Mason v. Department of Homeland Security, 116 M.S.P.R. 135, ¶ 26
     (2011). 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.
                                                                                           4

¶7         As noted, the administrative judge found that the appellant failed to make a
     nonfrivolous allegation that her supervisors had any knowledge of her
     whistleblowing disclosures.     ID at 7-8.    A careful reading of the appellant’s
     submission, however, supports a different conclusion. In her January 17, 2013
     email to the IG, the appellant states “I communicated to my immediate (first)
     supervisor . . . that I have reported incidences to [agency] lawyers.” IAF, Tab 13.
     Read broadly, the appellant’s statement indicates that she told her supervisor of
     the alleged incidents of an employee at the agency preselecting contractors or
     providing an unfair advantage to favored contractors, the allegations that the
     appellant made to the agency lawyers and incorporated into her IG complaint.
     Under these circumstances, we find that the appellant has satisfied the knowledge
     prong of the knowledge-timing test.            See Kinsey v. Department of the
     Navy, 107 M.S.P.R. 426, ¶ 18 (2007).          Further, because some or all of the
     personnel actions taken against the appellant occurred shortly after she made her
     disclosures, we find that she also satisfied the timing prong of the knowledge-
     timing test.   See Agoranos v. Department of Justice, 119 M.S.P.R. 498, ¶ 23
     (2013) (the issuance of an alleged retaliatory performance evaluation within 2
     years of an alleged protected disclosure occurred within a period of time such that
     a reasonable person could conclude that the disclosure was a contributing factor
     in the lowered performance rating).
¶8       Therefore, we conclude that the appellant has made a nonfrivolous allegation
     of whistleblower reprisal in connection with some or all of the personnel actions
     that she identified, and we remand this appeal. 2 On remand the administrative
     judge shall afford the appellant the hearing that she requested.          IAF, Tab 1;

     2
       Because we find that the appellant has made a nonfrivolous allegation that her alleged
     protected disclosures were a contributing factor in the agency’s decision concerning at
     least one of the personnel actions at issue, we find that she has met her jurisdictional
     burden. On remand, the administrative judge shall make findings as to the merits
     regarding which personnel action(s) is/are properly before the Board upon further
     development of the record.
                                                                                           5

      Aquino v. Department of Homeland Security, 121 M.S.P.R. 35, ¶ 9 (2014) (an
      appellant who meets her jurisdictional burden is entitled to a hearing on the
      merits in an IRA appeal).
¶9          With her petition for review, the appellant submits for the Board’s
      consideration a number of documents and emails that she did not submit below.
      PFR File, Tab 1.       Under 5 C.F.R. § 1201.115, the Board will not consider
      evidence submitted for the first time with the petition for review absent a showing
      that it was unavailable before the record was closed despite the party’s due
      diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). All of
      the items that the appellant submits with her petition are dated prior to the
      issuance of the initial decision. PFR File, Tab 1. We have not considered the
      appellant’s submissions on petition for review because she has failed to show that
      they were unavailable before the record was closed despite her due diligence.
      However, the appellant may submit these documents into the record on remand.
¶10       In her petition, the appellant also asserts that the administrative judge erred in
      denying her discovery. PFR File, Tab 1. The acknowledgment order notified the
      appellant of the availability of discovery.     IAF, Tab 2 at 3.      Apparently, the
      appellant submitted a copy of her discovery request to the administrative judge.
      IAF, Tab 10.     The administrative judge rejected the document, informing the
      appellant that, except as an attachment to a motion to compel, it is unnecessary to
      serve the Board with a discovery request. Id. The appellant has not shown that
      the administrative judge erred regarding discovery, especially given that there is
      no evidence that the agency did not respond to the appellant’s discovery request
                                                                                      3
      and given the appellant’s failure to file a motion to compel discovery.             See



      3
        The appellant alleges that the administrative judge was biased. Her assertions appear
      to be mere disagreement with the administrative judge’s findings. Such disagreement
      does not demonstrate bias. See Wood v. Department of the Navy, 43 M.S.P.R. 24, 30
      (1989); see also Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386 (1980)
      (in making a claim of bias or prejudice against an admin istrative judge, a party must
                                                                                     6

      Coleman v. Department of the Army, 106 M.S.P.R. 436, ¶ 8 (2007). On remand,
      however, the appellant will have an additional opportunity to engage in
      discovery.

                                          ORDER
¶11        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:                           ______________________________
                                               William D. Spencer
                                               Clerk of the Board
      Washington, D.C.




      overcome the presumption of honesty and integrity that accompanies administrative
      adjudicators).
