                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SHIRLEY MUHLEISEN,                              DOCKET NUMBER
                  Appellant,                         DE-1221-13-0345-W-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: November 10, 2014
       AFFAIRS,
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Shirley Muhleisen, Marrero, Louisiana, pro se.

           Aleksander D. Radich, Esquire, Cheyenne, Wyoming, for the agency.


                                           BEFORE

                          Susan Tsui Grundmann, Chairman
                           Anne M. Wagner, Vice Chairman
                             Mark A. Robbins, Member
                  Member Robbins issuing a separate, dissenting opinion.

                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed her individual right of action (IRA) appeal for lack of jurisdiction. For
     the reasons discussed below, we GRANT the appellant’s petition for review IN


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     PART and REMAND the case to the field office for further adjudication of the
     appellant’s alleged involuntary resignation in accordance with this Order.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The appellant served as a Nurse with the agency in one of its facilities in
     Denver, Colorado. Initial Appeal File (IAF), Tab 6 at 6. The appellant filed a
     complaint of whistleblower reprisal with the Office of Special Counsel (OSC)
     alleging that she made four protected disclosures and that, based on these
     disclosures, she was forced to resign from her position in 1999 and was not
     selected for another employment position with the agency in 2005. Id. at 8. 2 The
     appellant filed the instant IRA appeal with the Board challenging her involuntary
     resignation and her nonselection, and she also asserted that she encountered
     difficulty accessing certain personnel documents following her resignation. IAF,
     Tab 1.
¶3         The administrative judge issued a jurisdictional order apprising the
     appellant of her burden to establish the Board’s jurisdiction over her IRA appeal,
     see IAF, Tab 11, and, after considering both parties’ submissions, dismissed the
     appeal for lack of jurisdiction, IAF, Tab 15 Initial Decision (ID) at 7-11. In his
     initial decision, the administrative judge found that the appellant failed to
     nonfrivolously allege that three of her disclosures were protected disclosures
     under 5 U.S.C. § 2302(b)(8), ID at 7-9, and, as to her fourth disclosure, 3 the

     2
       During the proceedings below, the appellant referred to her decision to leave the
     agency as both a resignation and a retirement. On petition for review, she has clarified
     that at the end of September of 1999 she resigned from employment because of
     allegedly intolerable working conditions based on the impression that she had sufficient
     years of service to retire. Petition for Review (PFR) File, Tab 1 at 3. The test for
     analyzing the voluntariness of either a resignation or a retirement under these
     circumstances is the same. See, e.g., Heining v. General Services Administration,
     68 M.S.P.R. 513, 519-20 (1995).
     3
       The administrative judge found that the appellant had sufficient personal knowledge
     of the underlying facts of this disclosure to lead a reasonable person in her position to
     conclude that she had disclosed a violation of law or a possible abuse of authority under
     5 U.S.C. § 2302(b)(8). ID at 9.
                                                                                     3

     administrative judge found that the appellant failed to nonfrivolously allege that
     it was a contributing factor in either her 1999 involuntary resignation or her
     nonselection in 2005, ID at 9-11. The appellant has filed a petition for review
     challenging the initial decision. PFR File, Tab 1.
¶4        An appellant may establish the Board’s jurisdiction over an IRA appeal by
     nonfrivolously alleging that:   (1) she engaged in whistleblowing activity by
     making a protected disclosure; and (2) the disclosure was a contributing factor in
     the agency’s decision to take or fail to take a personnel action.      Aquino v.
     Department of Homeland Security, 121 M.S.P.R. 35, ¶ 9 (2014). To establish that
     an appellant made a protected disclosure under 5 U.S.C. § 2302(b)(8), an
     appellant need not prove that the matter disclosed actually established one of the
     types of wrongdoing listed under section 2302(b)(8)(A); rather, she must show
     that the matter disclosed was one which a reasonable person in her position would
     believe evidenced any of the situations specified in 5 U.S.C. § 2302(b)(8).
     Chavez v. Department of Veterans Affairs, 120 M.S.P.R. 285, ¶ 18 (2013).
¶5        Additionally, an appellant can satisfy the contributing factor element by
     nonfrivolously alleging that the official taking the challenged personnel action
     had either personal or constructive knowledge of the appellant’s disclosures 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. Aquino, 121 M.S.P.R. 35, ¶ 19. Even if the appellant fails to
     satisfy this standard, the Board will consider other evidence, such as that
     pertaining to the strength or weakness of the agency’s reasons for taking the
     personnel action, whether the whistleblowing was personally directed at the
     proposing or deciding officials, and whether those individuals had a desire or
     motive to retaliate against the appellant.    Stiles v. Department of Homeland
     Security, 116 M.S.P.R. 263, ¶ 24 (2011). If an appellant satisfies each of these
     jurisdictional requirements, she has the right to a hearing on the merits of her
     whistleblower reprisal claim, at which point she must prove each of the elements
                                                                                           4

     of her claim by a preponderance of the evidence. Edwards v. Department of the
     Air Force, 120 M.S.P.R. 307, ¶ 18 (2013).
¶6         We AFFIRM AS MODIFIED the administrative judge’s jurisdictional
     dismissal of the appellant’s challenge to her nonselection in 2005.                The
     administrative judge found that the appellant failed to nonfrivolously allege that
     three of her four disclosures were protected. ID at 7-8. However, we find that,
     even if the appellant nonfrivolously alleged that she made protected disclosures,
     she has failed to nonfrivolously allege that any of her disclosures served as a
     contributing factor in the nonselection.      The record reflects that the appellant
     alleges she made a series of disclosures prior to her resignation in 1999. She also
     contends that she was not selected for a job with the agency almost 6 years later,
     based upon these disclosures. See IAF, Tab 6 at 8-9. We find that the appellant
     has failed to nonfrivolously allege that any agency officials who were involved in
     the 2005 hiring decision knew about her prior disclosures, see, e.g., ID at 9-10,
     and we further find that the lapse in time between 1999 and 2005 is too great for
     the appellant to demonstrate that her disclosures likely served as a contributing
     factor in the agency’s hiring decision, 4 see Ingram v. Department of the
     Army, 116 M.S.P.R. 525, ¶ 10 (2011) (finding that temporal nexus was satisfied
     where 1 to 2 years existed between a disclosure and a personnel action). We
     further agree with the administrative judge that the appellant has failed to
     nonfrivolously allege that any of the individuals named or implicated in her
     disclosures were involved in the agency’s 2005 hiring decision.            We concur,
     moreover, with the administrative judge’s finding that the appellant has otherwise
     presented no evidence of any official’s desire or motive to retaliate against her by

     4
       In her response to the administrative judge’s jurisdictional order, the appellant also
     alleged that she made disclosures to the President and several members of Congress in
     2010 and 2011. IAF, Tab 12 at 5. Because these alleged disclosures post-date the
     appellant’s nonselection for employment in 2005, and so they could not have been a
     contributing factor in that action, they cannot support her assertion of whistleblower
     reprisal.
                                                                                         5

     not selecting her for a position of employment in 2005. ID at 10-11. Thus, the
     administrative judge’s jurisdictional dismissal of the appellant’s IRA appeal of
     her nonselection for a position of employment in 2005 is AFFIRMED AS
     MODIFIED.
¶7        The administrative judge also explained in his initial decision that the
     appellant was challenging several other agency actions, including her alleged
     1999 involuntary resignation and difficulties she encountered in accessing her
     personnel files and records after she left employment. ID at 1, 4 n.2. We agree
     with the administrative judge that the appellant’s challenges to, inter alia, the
     accessibility of her personnel records following her resignation, are not personnel
     actions within the scope of the Whistleblower Protection Act (WPA). See Weed
     v. Social Security Administration, 113 M.S.P.R. 221, ¶¶ 9-11 (2010); ID at 4 n.2.
¶8        We find, however, that the appellant has nonfrivolously alleged that one of
     her protected disclosures was a contributing factor in her allegedly involuntary
     resignation, and that remand of this claim to the administrative judge is necessary
     for him to determine if the appellant can establish that her resignation from
     employment was involuntary, thus making it a personnel action that could form
     the basis of the appellant’s IRA appeal.      See Lawley v. Department of the
     Treasury, 84 M.S.P.R. 253, ¶ 8 (1999) (a constructive adverse action can be a
     personnel action under the WPA. In his initial decision, the administrative judge
     found that the appellant nonfrivolously alleged that she made a protected
     disclosure to her supervisors concerning the agency’s practice of double-booking
     patients for appointments and maintaining fake clinics.          ID at 8.      The
     administrative judge found, however, that, although the appellant alleged she
     made these disclosures to her immediate supervisor, she did not identify when she
     made such disclosures, and he found that she therefore failed to nonfrivolously
     allege that these disclosures were a contributing factor in her involuntary
     resignation. ID at 10.
                                                                                           6

¶9          We agree with the administrative judge that the record below does not
      identify when the appellant made these disclosures. Nevertheless, in her petition
      for review, the appellant specifies that she made these disclosures to her
      immediate supervisors in “early 1999” and that shortly thereafter her supervisors
      increased their alleged retaliatory practices, thus causing her to leave employment
      with the agency in September of that year. PFR File, Tab 1 at 25. Generally, the
      Board will not consider a new argument on review absent a showing that it is
      based on new and material evidence not previously available despite the party’s
      due diligence. See Young v. U.S. Postal Service, 115 M.S.P.R. 424, ¶ 11 (2010).
      Under the limited circumstances of this case, however, where the appellant is
      proceeding pro se, 5 and her new arguments address whether she has made a
      nonfrivolous allegation establishing an element of the Board’s IRA jurisdiction
      over her appeal, we find it appropriate to consider the new argument for the first
      time on petition for review.       See, e.g., Hudson v. Department of Veterans
      Affairs, 104 M.S.P.R. 283, ¶ 6 (2006) (the WPA is a remedial statute and should
      be broadly construed); Smith v. Department of the Army, 80 M.S.P.R. 311, ¶ 7
      (1998) (pro se pleadings not held to same standard as those submitted by
      counsel).   Based upon her allegations that she made her disclosures to her
      supervisors in 1999 and that she thereafter endured an increased campaign of
      harassment which led to her decision to resign, we find that the appellant has
      nonfrivolously alleged that her protected disclosure was a contributing factor in
      her alleged involuntary resignation.      See Jessup v. Department of Homeland
      Security, 107 M.S.P.R. 1, ¶ 10 (2007) (an appellant’s allegation that a supervisor
      was aware of a protected disclosure is enough to satisfy the nonfrivolous
      allegation standard for contributing factor).
¶10         Because, however, the appellant bases her IRA appeal on a constructive
      adverse action, she must also nonfrivolously allege that her decision to resign was
      5
       The record reflects that the appellant was unrepresented in her proceedings before the
      Board and OSC, specifically with regard to her whistleblower retaliation claims.
                                                                                    7

involuntary in order for it to be a personnel action that can be challenged in an
IRA appeal under the WPA.            See Hosozawa v. Department of Veterans
Affairs, 113 M.S.P.R. 110, ¶ 5 (2010) (an employee must nonfrivolously allege
that her decision to resign was involuntary in order to establish Board jurisdiction
and an entitlement to a hearing); Lawley, 84 M.S.P.R. 253, ¶ 8 (constructive
adverse action can be personnel action under the WPA); 5 C.F.R. § 1209.4(a)(3)
(defining personnel action as an action appealable to the Board under chapter 75).
The administrative judge, however, did not reach in his initial decision the issue
of the voluntariness of the appellant’s decision to resign.         We accordingly
REMAND the appeal to the administrative judge for further adjudication of this
issue. Upon remand, should the administrative judge find that the appellant has
nonfrivolously alleged that her decision to resign was involuntary, 6 the
administrative judge should hold a hearing on the appellant’s IRA appeal, at
which point she would have to prove by preponderant evidence each of the
elements of her claim, including whether her decision to resign was involuntary.
If the appellant establishes each of the elements of her claim by preponderant
evidence, she would be entitled to corrective action unless the agency can
demonstrate by clear and convincing evidence that it would have taken the same
challenged actions in the absence of the appellant’s whistleblowing activity. See
Aquino, 121 M.S.P.R. 35, ¶ 10 (articulating the standard of review for the merits
of an IRA appeal); Hosozawa, 113 M.S.P.R. 110, ¶ 5 (an appellant is entitled to a
hearing if she nonfrivolously alleges that her resignation was involuntary).

                                      ORDER
¶11   For the reasons discussed above, we REMAND this case to the regional




6
  On remand, the administrative judge should explain to the appellant the various ways
in which she could nonfrivolously allege that her decision to resign was involuntary.
See, e.g., Heining, 68 M.S.P.R. at 519-20.
8
                                                                             9

office for further adjudication of the appellant’s challenge to her involuntary
resignation in accordance with this Remand Order.




FOR THE BOARD:                          ______________________________
                                        William D. Spencer
                                        Clerk of the Board
Washington, D.C.
               DISSENTING OPINION OF MEMBER MARK A. ROBBINS

                                              in

                    Shirley Muhleisen v. Department of Veterans Affairs

                         MSPB Docket No. DE-1221-13-0345-W-1

¶1         I respectfully dissent. I disagree with the decision to remand this appeal to
     the field office. Generally, the Board will not consider “new” evidence submitted
     for the first time with a petition for review absent a showing that it was
     unavailable before the record closed despite the party’s due diligence. 5 C.F.R.
     § 1201.115; see Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980).
     For the Board to consider evidence submitted on petition for review, it also must
     be material.   5 C.F.R. § 1201.115.    To be material, the evidence must be of
     sufficient weight to warrant an outcome different from that of the initial decision.
     Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980).
¶2         Here, the appellant, for the first time on review, supplies purportedly “new
     and material” information about a protected disclosure she made, which she
     did not provide below.    The Remand Order, on page 6, states that “under the
     limited circumstances of this case” (emphasis supplied), the Board will consider
     the appellant’s ostensibly new argument that she made a disclosure or disclosures
     to her supervisors in “early 1999,” based on two reasons: (1) the appellant is
     appearing pro se; and (2) she is raising “new allegations [that] address whether
     she has made a nonfrivolous allegation establishing an element of the Board’s
     jurisdiction” over her individual right of action (IRA) appeal.
¶3         First, the record does not support that the appellant is, or always has been,
     pro se.   For instance, between 2000 and at least until 2005, the appellant
     indicated that she “had retained counsel.”      Initial Appeal File (IAF), Tab 1
     at 12-13, Tab 6 at 9, 11 (in her original complaint to the Office of Special
     Counsel (OSC), she wrote that “I had to hire an attorney . . . to confront [the
     agency] with their [taking various actions] because I exercised my civil rights.”).
                                                                                        2

     The appellant also explicitly stated that the union promised to assist her to some
     degree with her Board appeal. IAF, Tab 4 at 1 (“I am hoping that I might have
     a . . . union representative accompany me to a hearing, have spoken to them about
     this and they are agreeable.”). In addition, even assuming that the appellant is
     appearing pro se, I cannot agree with the theory that a well-educated Registered
     Nurse with a Bachelor of Science Degree and a Master’s Degree in Nursing, see
     IAF, Tab 1 at 19, is not sufficiently intelligent to comprehend and follow the
     repeated   instructions   she   received   on   appeal   about   how   to   establish
     Board jurisdiction.
¶4         I also am concerned that the Remand Order suggests that pro se status now
     equals “a limited circumstance” in which the Board will accept new evidence or
     argument for the first time on petition for review. This would be contrary to our
     regulations and veer off course from decades of our precedent.
¶5         Second, I believe the Remand Order conflates the “materiality” standard
     with the “new” standard set forth in § 1201.115. At the outset, I agree that the
     appellant’s “new allegations [that] address whether she has made a nonfrivolous
     allegation establishing an element of the Board’s IRA jurisdiction over her
     appeal” would be material. Yet, I cannot agree that the allegations are “new,”
     given that the appellant missed several opportunities to produce this evidence
     earlier on appeal. Specifically, the record reflects that the appellant easily could
     have raised this argument either during the preliminary status conference on
     August 13, 2013, see IAF, Tab 7, in reply to the administrative judge’s detailed
     instructions to her about her need to prove IRA jurisdiction, as contained in the
     August 14, 2013 jurisdictional show cause order, see IAF, Tab 11, or in answer to
     the agency’s statements about jurisdiction in its narrative response to the appeal,
     see IAF, Tab 13. In light of these factors, I disagree with the characterization of
     these allegations on review as “new.”
                                                                                     3

¶6         As a result, I would find that the argument raised by the appellant here on
     review, although material, is not new, and so would not remand to the field office
     on that basis.



     ______________________________
     Mark A. Robbins
     Member
