                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     KAREN MOORE,                                    DOCKET NUMBER
                         Appellant,                  DA-1221-13-0213-W-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: March 10, 2015
       AFFAIRS,
                 Agency.



                       THIS ORDER IS NO NPRECEDENTIAL 1

           Karen Moore, Dallas, Texas, pro se.

           Patrick A. Keen, Shreveport, Louisiana, 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 her request for corrective action. For the reasons discussed below, we
     GRANT the appellant’s petition for review, REVERSE the initial decision, and
     REMAND this appeal for further adjudication in accordance with this Order.

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The appellant worked as a Medical Support Assistant/OA in the Primary
     Care—Compensation and Pension Unit of the agency’s Shreveport, Louisiana
     Medical Center. Initial Appeal File (IAF), Tab 4, Subtab 4a. On March 30, 2012,
     she sent an email to an employee relations staff member alleging harassment by
     her supervisor. IAF, Tab 7 at 12-14. The appellant sent a letter to the Veterans
     Administration (VA) Office of the Inspector General (OIG) dated April 6, 2012,
     alleging harassment and intimidation by her supervisor and claiming that
     management and the equal employment opportunity (EEO) office had not taken
     any action. Id. at 6-11. On May 29, 2012, the agency informed the appellant that
     effective June 17, 2012, she would be reassigned from her present position to the
     position of Medical Support Assistant in the Primary Care—Red Team within the
     Medical Center. IAF, Tab 4, Subtab 4e. The reassignment involved no change in
     pay or benefits. 2     Id.   The appellant inquired as to the reason for her
     reassignment, and she was informed by the hospital’s lead employee/labor
     relations specialist that the reassignment was due to her allegations of a hostile
     work environment involving her supervisor, who was being permanently
     reassigned to the appellant’s original work group. IAF, Tab 7 at 24.
¶3         The appellant filed an individual right of action (IRA) appeal with the
     Board on February 10, 2013.          IAF, Tab 1 at 4-6.         She alleged that her
     reassignment was in retaliation for her disclosures. Id. at 5, 11-12. She did not
     request a hearing; therefore, the administrative judge based his decision on the
     parties’ written submissions. IAF, Tab 1 at 3, Tab 21, Initial Decision (ID) at 1.
¶4         The administrative judge found that the appellant had exhausted her
     remedies with the Office of Special Counsel (OSC) because she had filed a
     complaint with OSC, more than 120 days had passed since she filed her

     2
       After the appellant was reassigned to the Primary Care—Red Team position, she was
     selected from a posting for an Office Automation Assistant position at the Dallas, Texas
     VA Medical Center and relocated to Dallas, Texas. IAF, Tab 4, Subtab 4g.
                                                                                         3

     complaint, and OSC had not issued her a termination letter. ID at 2-3. He found
     that the Board had jurisdiction over the appeal based on the appellant’s
     nonfrivolous allegations that she engaged in whistleblowing activity and that the
     disclosures were a contributing factor in the personnel action taken against her.
     ID at 3.    The administrative judge then found that the appellant made two
     protected disclosures: the email to the employee relations staff member and the
     letter to the VA Inspector General.         ID at 5-6.     He also found that her
     reassignment was a personnel action as the term is defined under the
     Whistleblower Protection Enhancement Act of 2012 (WPEA). 3 ID at 4.               The
     administrative judge found that the proximity in time between the appellant’s
     disclosures and the reassignment shows the disclosures may have been a
     contributing factor in the agency’s reassignment decision. ID at 7. Finally, he
     found that the agency showed by clear and convincing evidence that it would
     have taken the personnel action in the absence of the protected disclosures. ID
     at 6-8. On that basis, he denied corrective action. ID at 1, 8.
¶5        The appellant has filed a timely petition for review. Petition for Review
     (PFR) File, Tab 2. The agency has filed a response to the petition for review.
     PFR File, Tabs 5, 8, 10-11. The appellant has replied. PFR File, Tab 13.
     The agency did not prove by clear and convincing evidence that it would have
     taken the personnel action in the absence of the disclosures.
¶6        To secure corrective action from the Board, an appellant must first exhaust
     her administrative remedies with OSC.         Aquino v. Department of Homeland
     Security, 121 M.S.P.R. 35, ¶ 9 (2014).         The appellant then must prove by
     preponderant evidence that she engaged in whistleblowing activity by making a
     protected disclosure, and that such whistleblowing activity was a contributing

     3
       The administrative judge referred to the statute as the Whistleblower Protection Act
     (WPA), versus the WPEA, in his initial decision. ID at 3. However, we find that he
     properly applied the standards under the WPEA. The admin istrative judge suspended
     the case for a period of 30 days, in part based on the enactment of the WPEA, which he
     referred to as the WPA of 2012. IAF, Tab 10.
                                                                                              4

     factor in an agency personnel action.                Schnell v. Department of the
     Army, 114 M.S.P.R. 83, ¶ 18 (2010). If proven, the Board must order corrective
     action unless the agency establishes by clear and convincing evidence that it
     would have taken the same personnel action in the absence of the protected
     disclosure.   Id. Neither party challenges on review the administrative judge’s
     finding that the appellant proved by preponderant evidence that she made a
     protected disclosure that was a contributing factor in her reassignment. PFR File,
     Tabs 2, 11. We see no reason to disturb these well-reasoned findings on review.
¶7         The appellant argues that the administrative judge erred in finding that the
     agency would have reassigned her in the absence of her protected disclosures. 4
     PFR File, Tab 2 at 6-7. The administrative judge found that the agency’s chief of
     human resources reassigned the appellant because she was unhappy with her
     supervisor and not because of her two protected disclosures.              ID at 8.    The
     administrative judge commented that there was no evidence proving the
     appellant’s allegations of supervisory harassment and that no agency investigative

     4
       The appellant argues on review that her appeal is a m ixed case because it involves a
     complaint of discrim ination made in conjunction with an appealab le action. PFR File,
     Tab 2 at 1. We disagree. In an IRA appeal, the scope of the Board’s review generally
     is lim ited to the allegation of reprisal for protected disclosures. Ross v. Department of
     the Navy, 90 M.S.P.R. 236, ¶ 5 (2001). While the Board may review other matters in
     some IRA cases that are appealab le to it under authorities other than 5 U.S.C.
     § 1221(a), it may do so only to the extent those other authorities grant it jurisdiction to
     do so. Id. The appellant’s reassignment is a covered personnel action under the WPEA
     but is not an adverse action appealable under chapter 75 of Title 5. Compare 5 U.S.C.
     § 2302(a)(2)(A)(iv) (including reassignment in the definition of personnel action), with
     5 U.S.C. § 7512 (setting forth the more limited defin ition of an adverse action
     appealable to the Board under chapter 75). The Board’s jurisdiction to review IRA
     appeals based on personnel actions over which it otherwise does not have appellate
     jurisdiction is lim ited to adjudicating the whistleblower allegations. Shively v.
     Department of the Army, 59 M.S.P.R. 531, 536 (1993). Because the appellant has not
     alleged an otherwise appealable action, we cannot adjudicate the merits of her
     discrimination claims. See id. (declin ing to review allegations of reprisal for EEO
     activity in an IRA appeal in the absence of an otherwise appealable action); accord
     Tardio v. Department of Justice, 112 M.S.P.R. 371, ¶ 31 (2009) (finding that the Board
     does not have jurisdiction over discrimination claims unaccompanied by an otherwise
     appealable action).
                                                                                             5

     body looked into the allegations. ID at 7. The administrative judge also found no
     evidence that the hospital director or the appellant’s supervisor influenced the
     chief of human resources to reassign the appellant. 5 ID at 7.
¶8         Where, as here, an appellant shows by preponderant evidence that she made
     protected disclosures and that the disclosures were a contributing factor in the
     decision to take a personnel action, the Board will order corrective action unless
     the agency shows by clear and convincing evidence that it would have taken the
     personnel action in the absence of the whistleblowing. See Chavez v. Department
     of Veterans Affairs, 120 M.S.P.R. 285, ¶ 28 (2013). In determining whether the
     agency met this burden, the Board and our reviewing court have considered:
     (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 who are otherwise similarly situated.
     Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999);
     Massie v. Department of Transportation, 118 M.S.P.R. 308, ¶ 5 (2012). Clear
     and convincing evidence is that measure or degree of proof that produces in the
     mind of the trier of fact a firm belief as to the allegations sought to be
     established. Schnell, 114 M.S.P.R. 83, ¶ 23; 5 C.F.R. § 1209.4(e).
¶9         The U.S. Court of Appeals for the Federal Circuit has cautioned that a
     finding of clear and convincing evidence must be based on the record as a whole,

     5
       The appellant argues on review that it was a conflict of interest for the medical center
     director to be the agency representative with authority to settle her dispute when the
     director was one of the individuals about whom she has complained. PFR File, Tab 2
     at 7. In a comparable situation, the Board has refused to disqualify an agency
     representative in the absence of evidence that the representative played a substantial
     role in the alleged agency action.        Gubino v. Department of Transportation,
     85 M.S.P.R. 518, ¶ 11 (2000). In the present appeal, the appellant has alleged the
     hospital director was aware of the harassment and condoned it by her inaction. PFR
     File, Tab 2 at 7. However, because she has provided no evidence of the director’s
     awareness of the harassment or involvement in the appellant’s reassignment, we find no
     conflict of interest.
                                                                                           6

      “considering all the pertinent evidence in the record.” Whitmore v. Department of
      Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012). Therefore, all of the evidence must
      be weighed together—both the evidence that supports the agency’s case and the
      evidence that detracts from it.           Aquino, 121 M.S.P.R. 35, ¶ 27.           The
      administrative judge’s determination that the agency proved by clear and
      convincing evidence that it would have taken the action in the absence of the
      appellant’s protected disclosures was not based on the Carr factors. Applying
      these factors, we conclude that this determination was in error.
¶10          The only evidence submitted by the agency in support of its decision to
      reassign the appellant was two declarations. IAF, Tab 20 at 16-17. The first
      declaration was from the appellant’s supervisor, in which she denied that any of
      her communications were unprofessional, abusive, or exceeded her authority. Id.
      at 16. The other declaration was from the facility’s chief of human resources that
      stated that the reassignment was to accommodate the appellant because of her
      dissatisfaction with her supervisor and not in retaliation for her whistleblowing
      activity.   Id. at 17.   The agency provided no explanation of why it did not
      investigate the appellant’s repeated claims of harassment, including the
      allegations made in her two protected disclosures. The agency did not deny the
      appellant’s claim, included in her protected disclosure to the OIG, that the
      agency’s EEO office informed her that it could not assist her. IAF, Tab 7 at 6.
      The Board has previously found that agency-submitted affidavits containing only
      general statements that the acting officials never took any retaliatory action are
      not sufficient to prove by clear and convincing evidence that the agency would
      have    taken   the   action   in   the   absence   of   the   protected   disclosures.
      Schnell, 114 M.S.P.R. 83, ¶ 24. Therefore, with regard to the first Carr factor,
      we find the agency’s evidence does not support its claim that the appellant’s
      reassignment was unrelated to her disclosures.
¶11          As to the second Carr factor, the strength and existence of any motive to
      retaliate on the part of the agency officials who were involved in the decision, the
                                                                                       7

appellant argues that the chief of human resources took the action at the direction
of the hospital director who would not want the actions alleged by the appellant
to become known. PFR File, Tab 2 at 7-8. The appellant also alleges that the
chief of human resources did not have the authority to reassign her. Id. at 7. The
administrative judge noted in his initial decision that the record did not contain
any evidence that the chief of human resources had received or was aware of the
appellant’s disclosures.    ID at 5 n.4.    The administrative judge also found no
evidence that the appellant’s supervisor or the hospital director influenced the
chief of human resources’ decision.         ID at 7-8.      Our reviewing court has
previously held that “[t]hose responsible for the agency’s performance overall
may well be motivated to retaliate even if they are not directly implicated by the
disclosures, and even if they do not know the whistleblower personally, as the
criticism reflects on them in their capacities as managers and employees.”
Whitmore, 680 F.3d at 1370. However, the record contains no evidence that the
hospital director, chief of human resources, or the appellant’s supervisor were
aware that the appellant made the two protected disclosures prior to the
appellant’s reassignment. 6 Therefore, we conclude that the second Carr factor


6
  On review, the appellant submits an email from the employee relations staff member,
which informed the appellant that she had forwarded the email containin g one of the
appellant’s disclosures to the chief of human resources. PFR File, Tab 2 at 12. The
appellant submits this email to show that the chief of human resources knew of her
protected disclosures. I d. at 7-8. The email is dated before the close of the record
below and the appellant does not assert that the document was unavailable despite her
due diligence. The appellant also did not request an extension to the close of the record
to timely submit the documentation. The appellant argues that the email was filed in
the wrong box as part of her move to Texas, that she had surgery and medical
restrictions, and that her grandfather became ill and passed away. Id. at 2. The
appellant made no such references in her submissions filed during this time period and
makes the argument for the first time on review. Under 5 C.F.R. § 1201.115, the Board
generally 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).
The appellant makes no such showing. Further, evidence offered merely to impeach a
witness’s credibility is generally not considered new and material. Wyeroski v.
                                                                                         8

      supports a finding that the agency would have reassigned the appellant in the
      absence of her whistleblowing activity.
¶12        Concerning the third Carr factor, the agency has not presented any
      evidence, let alone clear and convincing evidence, showing that it took similar
      actions against employees who were not whistleblowers but who were otherwise
      similarly situated to the appellant.      Under these circumstances, the agency’s
      failure to submit any evidence on this factor supports a finding that the agency
      failed to prove by clear and convincing evidence that it would have taken the
      same actions against the appellant in the absence of her disclosures.            See
      Chambers v. Department of the Interior, 116 M.S.P.R. 17, ¶ 70 (2011); see also
      Russell v. Department of Justice, 76 M.S.P.R. 317, 327 (1997).
¶13        In sum, we find that the agency’s evidence in support of its actions is
      inconclusive, the record does not demonstrate the acting official had a significant
      motive to retaliate against the appellant, and the agency did not show that it took
      similar actions against similarly-situated nonwhistleblowers.         The appellant
      alleged harassment to multiple departments within the agency. IAF, Tab 7 at 6,
      12-13.   Yet there is no evidence that the agency performed any level of
      investigation of the appellant’s complaints. Clearly, the appellant was unhappy in
      her work situation, as the administrative judge noted in his decision. ID at 7.
      However, the burden is on the agency to establish by clear and convincing
      evidence that it would have taken any action against the appellant in the absence
      of her protected disclosures. Gonzales v. Department of the Navy, 101 M.S.P.R.
      248, ¶ 6 (2006).    We find that the agency has not established by clear and
      convincing evidence that it would have reassigned the appellant in the absence of
      her protected disclosures. Therefore, we conclude that the appellant is entitled to
      corrective action. Because the record has not been fully developed on the scope
      of corrective action that may be appropriate under the circumstances of this case,

      Department of Transportation, 106 M.S.P.R. 7, ¶ 9, aff’d, 253 F. App’x 950 (Fed. Cir.
      2007). Therefore, we decline to consider th is evidence for the first time on review.
                                                                                    9

      we REMAND this appeal to provide the parties an opportunity to present
      additional evidence and argument on that issue.

                                          ORDER
¶14        We REVERSE the initial decision and REMAND this appeal to the
      Regional Office to adjudicate, in the first instance, the appellant’s claims for
      corrective action under 5 U.S.C. § 1221(g)(1).




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