                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     BENJAMIN A. NEVAREZ,                            DOCKET NUMBER
                   Appellant,                        DE-1221-13-0166-W-2

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: September 29, 2014
                 Agency.



                       THIS ORDER IS NONPRECEDENTIAL *

           Benjamin A. Nevarez, Las Cruces, New Mexico, pro se.

           Richard F. Luxemburg, Esquire, and Office of the Staff Judge Advocate,
             White Sands Missile Range, New Mexico, for the agency.


                                           BEFORE

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


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     denied the appellant’s request for corrective action. For the reasons discussed
     below, we GRANT the appellant’s petition for review, VACATE the initial


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     decision, and REMAND the case to the regional office for further adjudication in
     accordance with this Order.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        In this individual right of action appeal, the appellant alleged that the
     agency took multiple personnel actions in retaliation for his alleged protected
     whistleblowing disclosures. Nevarez v. Department of the Army, MSPB Docket
     No. DE-1221-13-0166-W-1 (W-1 File), Tab 1. The appeal was dismissed without
     prejudice and refiled once in accordance with the administrative judge’s
     instructions. W-1 File, Tab 9; Nevarez v. Department of the Army, MSPB Docket
     No. DE-1221-13-0166-W-2 (W-2 File), Tab 1.          After holding a hearing, the
     administrative judge denied the appellant’s request for corrective action, finding
     that the appellant failed to establish that he made a protected whistleblowing
     disclosure because “a reasonable person in the appellant’s position would not
     believe that giving him an option of taking leave instead of being marked AWOL
     [absent without leave] was forcing him to take leave.” W-2 File, Tab 28, Initial
     Decision (ID) at 9-10.
¶3        In his timely-filed petition for review, the appellant challenges some of the
     administrative judge’s factual determinations, as well as the ultimate conclusion
     that he failed to establish that he engaged in whistleblowing activity by making a
     protected disclosure. Petition for Review (PFR) File, Tab 1 at 1-3. The agency
     responds in opposition.    PFR File, Tab 4.     The appellant includes numerous
     documents with his petition for review, some of which were submitted in the
     appeal below, and others which clearly are dated after the close of the record.
     PFR File, Tab 1 at 6-33. 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. The appellant makes no such showing. Nevertheless, for the following
     reasons, we must remand the appeal to the field office for further adjudication.
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¶4         Although we agree with the administrative judge that, under the
     circumstances presented, the appellant could not have reasonably believed that
     the agency’s instructions for him to choose either compensatory time or AWOL to
     cover the 2 hours of missed time at issue in this appeal violated the prohibition
     against requiring an employee to take compensatory time or any other leave in the
     absence of that employee’s request to do so, ID at 9-10, the appellant did not
     limit his disclosure to his own situation. The Office of Special Counsel’s (OSC)
     November 27, 2012 letter to the appellant regarding his complaint makes clear
     that his disclosure also concerned his subordinates as well.       W-2 File, Tab 6
     at 60. The appellant asserted this in his prehearing submission, W-2 File, Tab 18
     at 4-5, and the administrative judge acknowledged it in the prehearing conference
     summary, W-2 File, Tab 25 at 3.
¶5        We also agree with the administrative judge that the agency’s subsequent
     decision to grant the appellant’s subordinates 2 hours of administrative leave, but
     to deny the same to the appellant, was a reasonable solution to the problem
     caused by the appellant’s unreasonable interpretation of his supervisor’s
     instructions for the appellant’s group to leave the exercise area and his apparent
     condonation of them leaving 2 hours before the end of their shift.         ID at 9.
     Nevertheless, it appears that the appellant’s disclosure to his managers of his
     belief that forcing his subordinates to take compensatory time would violate
     Office of Personnel Management regulations was not only reasonable but,
     considering the chronology, may have even prompted that solution. Thus, we
     vacate the initial decision and find that the appellant made a protected disclosure.
¶6        Because he found that the appellant failed to make a protected disclosure,
     the administrative judge did not analyze the issue of contributing factor, nor did
     he assess whether the agency established by clear and convincing evidence
     whether the agency would have taken the same action in the absence of the
     appellant’s protected whistleblowing activity.        Nevertheless, regarding the
     contributing factor issue, the record reflects that the personnel actions for which
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     the administrative judge found that the appellant had exhausted his administrative
     remedies before OSC, W-2 File, Tab 25 at 4, occurred in such temporal proximity
     to the appellant’s protected disclosures as to satisfy the knowledge/timing test for
     contributing factor, see, e.g., Mudd v. Department of Veterans Affairs,
     120 M.S.P.R. 365, ¶ 10 (2013) (personnel actions within 1 year of the time that an
     employee engaged in a protected activity satisfied the timing prong of the
     knowledge-timing test); see also Ormond v. Department of Justice, 118 M.S.P.R.
     337, ¶ 13 (2012) (same, 6 months).
¶7        On the issue of whether the agency would have taken the same action in the
     absence of the appellant’s protected activity, the record is not so clear.      The
     proper adjudication of the issue may involve further factual determinations and
     will require credibility determinations that the administrative judge, who has held
     a hearing and personally observed the relevant testimony, is in the best position
     to make. See, e.g., Agoranos v. Department of Justice, 119 M.S.P.R. 498, ¶ 32
     (2013) (citing Taylor v. Department of Homeland Security, 107 M.S.P.R. 306,
     ¶ 13 (2007)). Upon remand, to determine whether the agency proved by clear and
     convincing evidence that it would have taken the same personnel actions against
     the appellant absent his protected disclosure, the administrative judge must
     consider the following three factors: (1) the strength of the agency’s evidence in
     support of its action; (2) the existence and strength of any motive to retaliate on
     the part of agency officials involved in the decision; and (3) any evidence that the
     agency takes similar actions against employees who are not whistleblowers but
     are otherwise similarly situated.    See Carr v. Social Security Administration,
     185 F.3d 1318, 1323 (Fed. Cir. 1999).       Moreover, evidence only clearly and
     convincingly supports a conclusion when it does so in the aggregate considering
     all the pertinent evidence in the record and despite the evidence that fairly
     detracts from that conclusion. Whitmore v. Department of Labor, 680 F.3d 1353,
     1368 (Fed. Cir. 2012).
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                                    ORDER
     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.
