                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     THASHA A. BOYD,                                 DOCKET NUMBER
                  Appellant,                         AT-1221-15-0008-W-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: June 25, 2015
       SECURITY,
                 Agency.



                  THIS ORDER IS NO NPRECEDENTIAL 1

           Thasha A. Boyd, Kennesaw, Georgia, pro se.

           Kenneth William, Atlanta, Georgia, 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 individual right of action (IRA) appeal for lack of jurisdiction. For
     the reasons discussed below, we GRANT the appellant’s petition for review and



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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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

                                       BACKGROUND
¶2         The appellant filed a complaint with the Office of Special Counsel (OSC) in
     which she alleged that the agency would not select her for employment and was
     retaliating against her because of her prior disclosures, her status as a perceived
     whistleblower, and her ongoing litigation against the agency. 2 Initial Appeal File
     (IAF), Tab 6 at 21.      In her complaint to OSC, the appellant alleged that, in
     May 2010, and April 2011, while she was employed by the Department of Labor
     (DOL), she made disclosures of fraud, waste, and abuse. Id. at 22. She stated
     that she had been applying for positions with the agency since mid-2012, but that
     when she was not selected for employment in 2013, she filed a complaint with
     OSC and then a Board appeal. Id. at 23. She further stated that, on March 20,
     2014, she received an email from an agency official stating that a panel decided
     that she would not be interviewed for a position. Id. She asserted that the agency
     had constructive knowledge of both her disclosures and her ongoing litigation
     against it. Id. at 24. She added that she previously told one of the supervisors at
     the agency that she was not certain when she would be entering on duty due to
     issues with her background investigation. Id. The appellant also stated that, after
     her background investigation took place, every position she applied for was either
     canceled, reannounced, and/or she was not selected. Id. OSC issued a letter to
     the appellant stating that she had alleged that the agency failed to select her for

     2
       In a prior appeal, the appellant alleged that the same agency intentionally delayed and
     misused the security clearance process to justify withdrawing its tentative job offer
     based upon the perception that she was a whistleblower. Boyd v. Department of
     Homeland Security, MSPB Docket No. AT-1221-13-3375-W-1, Initial Decision
     (Jan. 13, 2014). After the administrative judge initially d ismissed the case for lack of
     jurisdiction, the Board remanded that appeal for a hearing on the merits. I d., Remand
     Order (Nov. 24, 2014). The remanded appeal was then consolidated with Boyd v.
     Department of Labor, MSPB Docket No. AT-3443-13-7178-B-1. The consolidated
     appeal is pending at the regional office.
                                                                                       3

     positions based upon disclosures she made as a DOL employee in 2010 and 2011
     and informing her of her right to seek corrective action before the Board. IAF,
     Tab 1.
¶3         The appellant filed this IRA appeal alleging that the agency retaliated
     against her because of her prior disclosures at DOL, her status as a perceived
     whistleblower, and her ongoing litigation against the agency. Id. The agency
     responded with a motion to dismiss the appeal for lack of jurisdiction.        IAF,
     Tab 5.   The administrative judge granted and denied the agency’s motion in part,
     finding that the nonselections from 2012 and 2013 were covered by prior OSC
     complaints and that the only subsequent nonselection the appellant identified to
     OSC involved the one about which she received notice on March 20, 2014. IAF,
     Tab 10 at 2-5. The administrative judge therefore found that only this particular
     nonselection was administratively exhausted and he therefore ordered the
     appellant to supplement the record by specifically identifying this nonselection.
     Id. at 5-6.
¶4         In response to the administrative judge’s order, the appellant filed a motion
     for interlocutory appeal, challenging the administrative judge’s order to the extent
     that it limited her claims to a single vacancy as well as placed the burden upon
     her within a brief time period to obtain further information about the vacancy
     mentioned in the March 20, 2014 email.     IAF, Tab 11. The administrative judge
     denied the motion and extended the appellant’s time to submit evidence
     concerning the nonselection, but she did not submit the requested evidence and
     instead filed a similar motion for interlocutory appeal. IAF, Tabs 12-13. The
     administrative judge again denied the appellant’s motion. IAF, Tab 14. He stated
     that the appellant’s failure to provide information about which nonselection she
     was attempting to challenge casted doubt on whether she could satisfy her
     jurisdictional burden. Id. at 6. He therefore ordered the appellant to show cause
     why sanctions should not be imposed based on her failure to provide the
     requested argument and/or evidence.        Id.   He also ordered her to provide
                                                                                      4

     argument and/or evidence constituting a nonfrivolous allegation that any
     protected disclosure or her status as a perceived whistleblower was a contributing
     factor in the agency’s decision not to select her for the particular position about
     which she was notified on March 20, 2014. Id. The appellant responded to the
     order stating that she was waiting for a decision on her second motion for
     interlocutory appeal before initiating discovery. IAF, Tab 15 at 7-10. She also
     stated that sanctions were not warranted and that any dismissal of her appeal
     should be without prejudice pending the disposition of another appeal at the
     United States Court of Appeals for the Federal Circuit. Id.
¶5           The administrative judge issued an initial decision in which he found that
     the appellant had exhausted before OSC only the nonselection about which she
     received notice on March 20, 2014. IAF, Tab 18, Initial Decision (ID) at 5. The
     administrative judge also found that the Board did not have jurisdiction over this
     nonselection because the appellant had not alleged facts which, if proven, would
     establish that the selecting official either was aware of her prior whistleblower
     activity or perceived her as a whistleblower. ID at 9. Lastly, the administrative
     judge stated that the appeal equally could have been dismissed as a sanction
     based upon the appellant’s willful failure to respond to the Board’s orders. ID
     at 9.
¶6           The appellant timely petitioned for review. Petition for Review (PFR) File,
     Tab 1. She argued that the administrative judge erred in denying her motions for
     interlocutory appeal, that she exhausted before OSC as to the nonselections that
     the administrative judge excluded, that sanctions should not have been imposed
     because she did not exhibit bad faith and exercised due diligence in pursuing her
     appeal, and that she should not have been required to provide additional
     information concerning the nonselection mentioned in the March 20, 2014 email
     because the agency was in the best position to provide this information.        Id.
     at 4-12. The agency has responded in opposition to the appellant’s petition. PFR
     File, Tab 3.
                                                                                      5

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶7        Generally, the Board has jurisdiction over an IRA appeal if the appellant
     exhausts her administrative remedies before OSC and makes nonfrivolous
     allegations that:    (1) she made a disclosure described under 5 U.S.C.
     § 2302(b)(8), or engaged in protected activity described under 5 U.S.C.
     § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity
     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). 5 U.S.C. § 1221(a); Yunus v.
     Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). However,
     an individual who is perceived as a whistleblower is still entitled to
     whistleblower protections, even if she has not made protected disclosures. Reed
     v. Department of Veterans Affairs, 122 M.S.P.R. 165, ¶ 26 (2015). In such cases,
     the issue of whether the appellant actually made protected disclosures is
     immaterial; the issue of whether the agency perceived the appellant as a
     whistleblower will essentially stand in for that portion of the Board’s analysis in
     both the jurisdictional and merits stages of the appeal. King v. Department of the
     Army, 116 M.S.P.R. 689, ¶ 8 (2011).
     The appellant has exhausted her administrative remedies as to the nonselections
     from mid-2012 until the time of her OSC complaint.
¶8        Under 5 U.S.C. § 1214(a)(3), an employee is required to seek corrective
     action from OSC before seeking corrective action from the Board. The Board’s
     jurisdiction is limited to issues raised before OSC. See Ellison v. Merit Systems
     Protection Board, 7 F.3d 1031, 1037 (Fed. Cir. 1993). To meet the exhaustion
     requirement, the appellant must provide OSC with a sufficient basis to pursue an
     investigation which might have led to corrective action.       Briley v. National
     Archives & Records Administration, 236 F.3d 1373, 1377 (Fed. Cir. 2001). That
     is, the appellant must articulate with reasonable clarity and precision before OSC
     the basis of her request for corrective action.        Coufal v. Department of
     Justice, 98 M.S.P.R. 31, ¶ 14 (2004).
                                                                                           6

¶9         The administrative judge found that the appellant only clearly identified the
     nonselection mentioned in the March 20, 2014 email and that this therefore was
     the sole nonselection that she exhausted before OSC. ID at 4-5. We disagree.
     Instead, we find that the appellant has exhausted before OSC her allegation that
     she was not selected for vacancies beginning in mid-2012 until the time of her
     complaint.    In her complaint, the appellant alleged that she had applied to
     positions with the agency since mid-2012 and that she was not selected for them
     because of her status as a perceived whistleblower, the agency’s constructive
     knowledge of her previous disclosures, and her ongoing litigation against it. IAF,
     Tab 6 at 21-24. She specified the subdivision of the agency to which she had
     applied, the grade and series of positions to which she applied, the name and
     contact information of an agency acting field office director who she alleged was
     involved in the retaliation, and the name of a supervisor who she claimed had
     knowledge of the issues with her background investigation. Id. We find that the
     appellant’s complaint was sufficiently detailed to allow OSC to investigate
     because she identified applications that she submitted within a limited timeframe
     in a specific division of the agency and also included the names of individuals
     who she alleged were involved in the retaliation. Id. Accordingly, we find that
     the appellant has exhausted her administrative remedy concerning nonselections
     for vacancies beginning in mid-2012 until the time of her complaint. 3 See Reeves
     v. Department of the Army, 99 M.S.P.R. 153, ¶ 11 (2005) (finding that the



     3
       OSC’s letter characterized the appellant’s claim as alleging that the agency failed to
     select her for positions based upon disclosures she made as a DOL employee in 2010
     and 2011. IAF, Tab 1. Nevertheless, an IRA appeal is a de novo action, and OSC’s
     characterizations of the appellant’s allegations are not binding on the Board. Wheeler
     v. Department of Veterans Affairs, 88 M.S.P.R. 236, ¶ 22 (2001). Therefore, because
     these allegations are contained in her OSC complaint, the appellant has exhausted her
     administrative remedy based upon allegations of retaliation due to her status as a
     perceived whistleblower, the agency’s constructive knowledge of her previous
     disclosures, and her ongoing litigation against it.
                                                                                        7

      appellant exhausted his administrative remedy before OSC regarding allegations
      that he was not selected for promotion).
      The appellant has nonfrivolously alleged that she made protected disclosures and
      participated in protected activities.
¶10        In her OSC complaint, the appellant alleged that, in 2010 and 2011, she
      made disclosures of fraud, waste, and abuse concerning DOL. IAF, Tab 6 at 22.
      The Board previously found that the appellant made protected disclosures while
      an employee at DOL.        Boyd v. Department of Labor, MSPB Docket Nos.
      AT-1221-12-0456-W-1, AT-1221-12-0665-W-1, Final Order at 3 (Sept. 17,
      2013). Therefore, we again find that the appellant has nonfrivolously alleged that
      she made protected disclosures.
¶11        Next, we find that the appellant has nonfrivolously alleged that she engaged
      in protected activity. Under 5 U.S.C. § 2302(b)(9)(A)(i), an employee engages in
      protected activity when she exercises any appeal, complaint, or grievance with
      regard to remedying a violation of 5 U.S.C. § 2302(b)(8). 4 In her OSC complaint,
      the appellant alleged that the agency was retaliating against her because of her
      prior Board appeal, in which she asserted that the agency rescinded its tentative
      offer because of the protected disclosures she made while employed at DOL.
      IAF, Tab 6 at 24; see Boyd v. Department of Homeland Security, MSPB Docket
      No. AT-1221-13-3375-W-1, Initial Appeal (Aug. 11, 2013). We find that this
      prior appeal constituted a protected activity.
      The appellant has not nonfrivolously alleged that her disclosures were a
      contributing factor in her nonselection, but she has nonfrivolously alleged that
      her protected activity in filing a Board appeal was a contributing factor in her
      nonselection.
¶12        The appellant appears to have alleged in her OSC complaint that her prior
      disclosures and her ongoing litigation against the agency were contributing
      factors in her nonselection. IAF, Tab 6 at 21. The term “contributing factor”

      4
        Under 5 U.S.C. § 2302(b)(8), it is a prohibited personnel practice to take certain
      personnel actions against an employee because of certain protected disclosures.
                                                                                        8

      means any disclosure or protected activity that affects an agency’s decision to
      threaten, propose, take, or not take a personnel action with respect to the
      individual making the disclosure.        5 C.F.R. § 1209.4(d); see Carney v.
      Department of Veterans Affairs, 121 M.S.P.R. 446, ¶ 7 (2014).              The most
      common way of proving the contributing factor element is the knowledge-timing
      test. Chavez v. Department of Veterans Affairs, 120 M.S.P.R. 285, ¶ 27 (2013).
      Under that test, an appellant can prove that her disclosure was a contributing
      factor in a personnel action through evidence that the official taking the personnel
      action knew of the whistleblowing disclosure and took the personnel action
      within a period of time such that a reasonable person could conclude that the
      disclosure was a contributing factor in the personnel action.        Id.    Once an
      appellant has satisfied the knowledge-timing test, she has demonstrated that a
      protected disclosure was a contributing factor in a personnel action. Gonzalez v.
      Department of Transportation, 109 M.S.P.R. 250, ¶ 20 (2008).
¶13        In her OSC complaint, the appellant alleged that she made protected
      disclosures in 2010 and 2011. IAF, Tab 6 at 21. However, she did not provide
      any description of how agency officials would have known about these
      disclosures that she made regarding another agency. Accordingly, we find that
      the appellant has not nonfrivolously alleged, through the knowledge-timing test,
      that her disclosures were a contributing factor in her nonselection.            See
      Reed, 122 M.S.P.R. 165, ¶ 17 (the appellant failed to nonfrivolously allege that
      her disclosure was a contributing factor in her suspension because she did not
      allege that the agency officials who were responsible for the alleged personnel
      actions knew about the disclosure). However, even if the appellant fails to satisfy
      this test, the Board considers 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 relevant 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). There
                                                                                             9

      is no evidence showing that any of the agency officials had a motive to retaliate
      against the appellant, whose disclosures were made about a different agency. We
      therefore also find, based upon our consideration of other evidence, that the
      appellant has failed to nonfrivolously allege that her disclosures were a
      contributing factor in her nonselection. Id.
¶14         We find, however, that the appellant nonfrivolously alleged that the filing
      of her Board appeal was a contributing factor in her nonselection for certain
      vacancies. The appellant alleged that the agency had constructive knowledge of
      her Board appeal. IAF, Tab 6 at 24. An allegation of knowledge or constructive
      knowledge is “minimally sufficient” to meet the burden of a nonfrivolous
      allegation.   Jessup v. Department of Homeland Security, 107 M.S.P.R. 1, ¶ 10
      (2007). As to the timing portion of the knowledge-timing test, the appellant filed
      her Board appeal in August 2013. Boyd v. Department of Homeland Security,
      MSPB Docket No. AT-1221-13-3375-W-1, Initial Appeal (Aug. 11, 2013). The
      Board has held that a personnel action that occurred within 1 year of a protected
      disclosure satisfies the “timing” component of the knowledge-timing test. See
      Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 10 (2013). Thus,
      we find that the appellant satisfied the knowledge-timing test as to her claim that
      the agency retaliated against her for her protected activity when it did not select
      her for vacancies after she filed her Board appeal in August 2013, and before she
      filed her OSC complaint in March 2014. 5




      5
        The Board has held that the Whistleblower Protection Enhancement Act provision that
      took effect on December 27, 2012, and created a new Board appeal right in IRA appeals
      for employees who allege that a personnel action was taken as a result of a prohib ited
      personnel practice described in 5 U.S.C. § 2302(b)(9)(A)(i) is not retroactive. Miller v.
      Federal Deposit Insurance Corporation, 122 M.S.P.R. 3, ¶ 15 (2014). Here, however,
      any nonselections that could have been done in retaliation for filing the prior Board
      appeal would have taken place no earlier than August 2013. Thus, there is no
      retroactivity issue.
                                                                                           10

¶15         We therefore find that the appellant has established jurisdiction over any
      nonselections 6 that occurred after she filed her August 2013 Board appeal and
      before she filed her March 2014 OSC complaint. 7 Accordingly, the appellant is
      entitled to a hearing on the merits to determine if her protected activity in filing
      her Board appeal was a contributing factor in any nonselection that occurred
      within this time period. See Rusin v. Department of the Treasury, 92 M.S.P.R.
      298, ¶ 20 (2002) (an appellant is entitled to a hearing on the merits if she makes
      the required nonfrivolous allegations of the elements of an IRA appeal).
      On remand, the administrative judge should determine whether the appellant has
      nonfrivolously alleged that she was perceived as a whistleblower, whether the
      perception was a contributing factor in her nonselection, and whether any such
      claims are barred by res judicata or collateral estoppel.
¶16         The appellant appeared to assert that she was perceived as a whistleblower
      because she told a supervisor at the agency that the processing of her background
      investigation was delayed. IAF, Tab 6 at 24. In its remand order in Boyd, MSPB
      Docket No. AT-1221-13-3375-W-1, the Board found that the administrative judge
      erred in finding that the appellant failed to make a nonfrivolous allegation that
      she was perceived as a whistleblower. Id.; Remand Order at 4 (Nov. 24, 2014).
      Specifically, we noted a letter that she sent to the agency in October 2012,
      describing several of her legal actions against DOL. Id. Here, it is not clear if
      the appellant is alleging that the agency perceived her as a whistleblower based
      upon this letter or other similar facts. We note, however, that the appellant did
      not submit the October 2012 letter into evidence in the current appeal.             The
      administrative judge must therefore determine on remand whether the appellant
      has nonfrivolously alleged that she was perceived as a whistleblower.            If the

      6
        On remand, the appellant must clarify whether the nonselections during this time
      period are lim ited to the nonselection referenced in the March 20, 2014 email or
      whether other nonselections are included as well.
      7
        Because, as previously discussed, the Board’s jurisdiction is limited to those matters
      raised before OSC, Ellison, 7 F.3d at 1037, we may not consider any nonselections that
      occurred after the appellant filed her OSC complaint.
                                                                                    11

administrative judge determines that the agency perceived the appellant as a
whistleblower, then he should determine if the appellant has nonfrivolously
alleged that this was a contributing factor in any of her nonselections.         If the
administrative judge determines that the appellant established jurisdiction over
any such claims, he also may consider whether they are barred by collateral
estoppel or res judicata. 8 See Zgonc v. Department of Defense, 103 M.S.P.R. 666,
¶¶ 6-8 (2006), aff’d, 230 F. App’x, 967 (Fed. Cir. 2007). If the administrative
judge determines that the Board has jurisdiction over any of these claims and that
they are not barred by res judicata or collateral estoppel, then the appellant is
entitled to a hearing on the merits to determine if her status as a perceived
whistleblower    was    a   contributing   factor   in   her   nonselection.       See
Rusin, 92 M.S.P.R. 298, ¶ 20.




8
   The administrative judge found that this IRA appeal equally could have been
dismissed as a sanction for the appellant’s refusal to comply with Board orders. ID
at 9. While we understand the administrative judge’s frustration with the appellant’s
conduct, we find that her conduct does not justify dismissal of her appeal. See Johnson
v. Department of the Treasury, 108 M.S.P.R. 592, ¶¶ 18-20 (2008) (reversing an
administrative judge’s dismissal of an appeal for failure to provide more specific
information regarding the appellant’s claims). However, we rem ind the appellant that
an administrative judge may impose various sanctions as necessary to serve the ends of
justice. 5 C.F.R. § 1201.43; see Heckman v. Department of the Interior, 106 M.S.P.R.
210, ¶¶ 8-12 (2007) (finding that an admin istrative judge did not abuse her discretion
by canceling the requested hearing as a sanction for repeated failure to provide
additional information). On remand, the appellant is expected to comply with all orders
issued by the administrative judge. See Lubert v. U.S. Postal Service, 110 M.S.P.R.
430, ¶ 15 (2009).
                                                                         12

                                    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.
