                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                     2015 MSPB 58

                            Docket No. DA-0752-12-0396-I-3

                                    Sandra M. Ayers,
                                       Appellant,
                                           v.
                              Department of the Army,
                                        Agency.
                                    November 2, 2015

           Daniel J. Gamino, Esquire, Oklahoma City, Oklahoma, for the appellant.

           Melissa Beeson Heindselman, Fort Sill, Oklahoma, for the agency.

                                        BEFORE

                            Susan Tsui Grundmann, Chairman
                               Mark A. Robbins, Member



                                OPINION AND ORDER

¶1         The agency has filed a petition for review of the initial decision, which
     reversed the appellant’s removal. We DENY the petition for review. Except as
     expressly MODIFIED by this Opinion and Order to find that the appellant’s
     disclosure of an alleged inappropriate relationship was not protected, we
     AFFIRM the initial decision.

                                     BACKGROUND
¶2         The appellant was formerly employed as a Diagnostic Radiologic
     Technologist (Mammography), GS-0647-08, at the agency’s Reynolds Army
     Community Hospital (RACH), Department of Radiology, Diagnostic Service, in
                                                                                        2

     Fort Sill, Oklahoma. On February 21, 2012, the agency proposed to remove her
     based on 25 specifications of Conduct Unbecoming a Federal Civilian Employee.
     Ayers v. Department of the Army, MSPB Docket No. DA-0752-12-0396-I-1,
     Initial Appeal File (I-1 IAF), Tab 40, Subtab 4e.       The appellant responded in
     writing, and on April 5, 2012, the agency issued a decision letter effecting her
     removal that same day. I-1 IAF, Tab 45, Subtab 4b.
¶3         The appellant filed a timely appeal, raising affirmative defenses of
     retaliation for whistleblowing, union activity, and equal employment opportunity
     (EEO) activity. I-1 IAF, Tabs 1, 111. A hearing was held over 7 days in August
     through October 2012.      The appeal was dismissed without prejudice twice
     pending   the   Board’s    decision     in   Day   v.   Department   of   Homeland
     Security, 119 M.S.P.R. 589 (2013), concerning the retroactivity of certain
     portions of the Whistleblower Protection Enhancement Act of 2012 (WPEA). I-
     1 IAF, Tab 140, Initial Decision; Ayers v. Department of the Army, MSPB Docket
     No. DA-0752-12-0396-I-2, Initial Appeal File, Tab 2, Initial Decision. Following
     the issuance of Day, the appeal was again refiled on June 28, 2013. Ayers v.
     Department of the Army, MSPB Docket No. DA-0752-12-0396-I-3, Initial Appeal
     File (I-3 IAF), Tab 2.
¶4         The proceedings below culminated in a 253-page initial decision. I-3 IAF,
     Tab 12, Initial Decision (ID). Ultimately, the administrative judge sustained the
     charge, but only the following specifications: (a); (c) (in part); (d); (e); (j) (in
     part); (k) (in part); (l) (in part, merged with (j)); (r); and (s). See ID at 53-204.
     He further found that the appellant did not establish her claim of EEO retaliation,
     ID at 241-44, but did establish her claims of retaliation for whistleblowing, ID
     at 205-36, and union activity, ID at 236-41.       Accordingly, the administrative
     judge reversed the action. ID at 244.
¶5         On petition for review, the agency challenges the administrative judge’s
     findings on whistleblowing and union activity reprisal, and also contends that he
     should not have considered the whistleblowing retaliation claim in the first
                                                                                         3

     instance.   Petition for Review (PFR) File, Tab 3.       The appellant has filed a
     response to the agency’s petition. PFR File, Tab 6.

                                         ANALYSIS
     Interim Relief
¶6         Where, as here, the appellant was the prevailing party in the initial decision
     and interim relief was ordered, a petition for review filed by the agency must be
     accompanied by a certification that the agency has complied with the interim
     relief order, either by providing the interim relief ordered, or by making a
     determination that returning the appellant to the place of employment would
     cause undue disruption to the work environment.             5 C.F.R. § 1201.116(a);
     see 5 U.S.C. § 7701(b)(2)(A)(ii), (B). In its certification, the agency stated that it
     had determined that it would be unduly disruptive to return the appellant to the
     mammography section at Fort Sill. PFR File, Tab 1 at 26. The agency explained
     that it therefore had placed the appellant on paid administrative leave beginning
     February 21, 2012, the date of the initial decision, and that she would remain in
     that status until April 14, 2012, at which time the agency would detail her to
     another department in RACH. Id.
¶7         Following her response to the agency’s petition for review, the appellant
     filed an additional pleading, labeled as a “Petition for Enforcement,” in which she
     alleged that the agency had failed to comply with the interim relief order. PFR
     File, Tab 10. She requested that the Board issue an order enforcing the interim
     relief previously ordered, and award attorney fees incurred in the preparation of
     her pleading. Id. The appellant’s request is denied, because our regulations do
     not allow for a petition for enforcement of an interim relief order. See 5 C.F.R.
     § 1201.182(a)-(b). Her request for attorney fees is likewise premature, because
     our regulations do not allow for an award of attorney fees before the decision of
     the Board becomes final. See 5 C.F.R. § 1201.116(f).
                                                                                       4

¶8          We instead consider the appellant’s pleading as a challenge to the agency’s
      certification of compliance. See 5 C.F.R. § 1201.116(b). Ordinarily, where an
      appellant challenges the agency’s certification of compliance with an interim
      relief order, the Board will issue an order affording the agency the opportunity to
      submit evidence of compliance. Id. If the agency fails to provide evidence of
      compliance in response to such an order, the Board may, at its discretion, dismiss
      the agency’s petition for review. 5 C.F.R. § 1201.116(e). In this case, however,
      we find that the agency’s petition does not meet the criteria for review in any
      event, and the issuance of our final decision renders moot any dispute concerning
      the agency’s    compliance with     the   interim relief   order.    Under   these
      circumstances, it is unnecessary to issue an order under 5 C.F.R. § 1201.116(b).
      If the appellant believes the agency is in noncompliance with the Board’s final
      order, or if she seeks an award of attorney fees as the prevailing party in this
      appeal, she may file a petition for enforcement and/or a request for attorney fees
      in accordance with the instructions provided below.
      The administrative judge did not abuse his discretion in permitting the appellant
      to raise her affirmative defense of whistleblowing reprisal.
¶9          On petition for review, the agency first argues that the administrative judge
      improperly considered the appellant’s whistleblower reprisal claim. PFR File,
      Tab 3 at 5-7.   The agency suggests that her claim was not raised in a timely
      fashion. We disagree.
¶10         The Board’s regulations provide that an appellant may raise a claim or
      defense not included in the appeal at any time before the end of the conference(s)
      held to define the issues in the case.    5 C.F.R. § 1201.24(b).    The regulation
      further provides that the appellant may not raise a new claim or defense after that
      time, except for good cause shown, and that a claim or defense not included in
      the appeal may be excluded if a party shows that including it would result in
      undue prejudice. Id. In this case, by the time of the July 13, 2012 prehearing
      conference that defined the issues in dispute, the appellant had timely raised a
                                                                                          5

      claim that the agency removed her in retaliation for protected disclosures made in
      her April 2011 complaint to the agency’s Inspector General (IG).              I-1 IAF,
      Tabs 62, 111.
¶11         Furthermore, the agency has not demonstrated that it was unduly
      prejudiced by the inclusion of the defense. First, the record shows that agency
      counsel was already in possession of the complaint as well as the resulting IG
      report. I-1 IAF, Tabs 107, 118. The agency objects that the appellant did not
      identify which particular disclosures she believed to be protected until the close
      of the record. PFR File, Tab 3 at 7.          However, the agency easily could have
      surmised that the disclosures in question were the two contained in her complaint,
      namely her allegations of workplace harassment and an inappropriate relationship
      between her first- and second-level supervisors. I-1 IAF, Tab 107. The agency
      was already well versed in these topics, as it had removed her in part for making
      the same allegations in the same April 8, 2011 written statement she provided to
      the IG. I-1 IAF, Tab 30, Subtab 4e (specifications “b” and “n”). Nonetheless,
      the administrative judge granted the agency’s request for a continuance, partly in
      order to provide it additional time to consider the affirmative defenses raised for
      the first time at the prehearing conference.         I-1 IAF, Tab 123.   Under these
      circumstances, we find the administrative judge did not err by including the
      appellant’s whistleblowing reprisal claim.
      The administrative judge correctly found that the appellant established her
      whistleblowing reprisal claim.
¶12         In a removal appeal, an appellant’s claim of whistleblowing reprisal is
      treated   as    an   affirmative   defense.      Simmons    v.   Department   of   the
      Air Force, 99 M.S.P.R. 28, ¶ 22 (2005), aff’d sub nom. Gebhardt v. Department
      of the Air Force, 186 F. App’x 996 (2006). In such an appeal, once the agency
      proves its initial case by a preponderance of the evidence, the appellant must
      show by a preponderance of the evidence that she made a protected disclosure
                                                                                      6

      under 5 U.S.C. § 2302(b)(8) 1 and that the disclosure was a contributing factor in
      the agency’s personnel action. Simmons, 99 M.S.P.R. 28, ¶ 22. If the appellant
      establishes a prima facie case of whistleblowing reprisal, then the burden of
      persuasion shifts to the agency to show by clear and convincing evidence that it
      would have taken the same personnel action absent any protected activity. Id.,
      ¶ 23.
              The appellant made a protected disclosure concerning alleged harassment
              by her first-level supervisor, but her disclosure of an alleged intimate
              relationship between her first- and second-level supervisors was not
              protected.
¶13           A protected disclosure includes “any disclosure . . . to the Inspector
      General of an agency . . . of information which the employee [] reasonably
      believes evidences a violation of any law, rule, or regulation, or gross
      mismanagement, a gross waste of funds, an abuse of authority, or a substantial
      and specific danger to public health or safety.” 5 U.S.C. § 2302(b)(8)(B) (2011).
      The test of a reasonable belief is whether a disinterested observer with knowledge
      of the essential facts known to and readily ascertainable by the employee could
      reasonably conclude that the actions evidenced one of the types of wrongdoing
      listed above. Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999). Here,
      the administrative judge found that the appellant made protected disclosures in
      her April 2011 IG complaint concerning (1) alleged harassment by her first-level
      supervisor, J.P.; and (2) an alleged inappropriate relationship between J.P. and
      the appellant’s second-level supervisor, W.G.       ID at 209-11.    The agency
      contends that the administrative judge erred on both counts. PFR File, Tab 3
      at 11-17.


      1
         Insofar as the appellant may have engaged in activity under 5 U.S.C.
      § 2302(b)(9)(A)(i) and (C), which would now be protected under the WPEA, these
      provisions of the WPEA do not retroactively apply to this case. See Colbert v.
      Department of Veterans Affairs, 121 M.S.P.R. 677, ¶ 7 (2014).
                                                                                        7

¶14         Regarding disclosure (1), the agency cites several nonprecedential
      decisions by the U.S. Court of Appeals for the Federal Circuit for the proposition
      that disclosure of personal workplace grievances is not protected by the
      Whistleblower Protection Act (WPA).         PFR File, Tab 3 at 8; see Suggs v.
      Department of Veterans Affairs, 415 F. App’x 240 (Fed. Cir. 2011); Winfield v.
      Department of Veterans Affairs, 348 F. App’x 577 (Fed. Cir. 2009); Riley v.
      Department of Homeland Security, 315 F. App’x 267 (Fed. Cir. 2009); Doyle v.
      Department of Veterans Affairs, 273 F. App’x 961 (Fed. Cir. 2008). However,
      none of the cases cited by the agency involved allegations of harassment by a
      supervisor, which we have found may constitute an abuse of authority. See, e.g.,
      Herman v. Department of Justice, 115 M.S.P.R. 386, ¶¶ 11-12 (2011) (explaining
      that an abuse of authority occurs when there is an arbitrary or capricious exercise
      of power by a Federal official or employee that adversely affects the rights of any
      person or results in personal gain or advantage to himself or preferred other
      persons); Murphy v. Department of the Treasury, 86 M.S.P.R. 131, ¶ 6 (2000).
¶15         Moreover, the administrative judge correctly found that the appellant had a
      reasonable belief in the truth of her allegation that J.P. was harassing her. See ID
      at 83-112. The appellant’s belief that J.P. was harassing her was based in part—
      but not exclusively—on the decision by J.P. and Chief Radiologist P.D. to place
      her on a retraining program following her return from maternity leave in
      February 2011.    That decision was itself ostensibly based on two suboptimal
      mammograms conducted by the appellant in December 2010 that resulted in P.D.
      recalling the two affected patients.   However, the administrative judge agreed
      with the appellant that, assuming the callbacks did occur, the blame fell at least
      as much on the reviewing radiologist, who should not have released the patients
      when the initial images were taken. The administrative judge further noted that
      these were the only two purported patient recalls among the “innumerable”
      screenings the appellant performed both before and after December 2010.          ID
      at 111-12.
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¶16         On petition for review, the agency argues that the appellant was solely
      responsible for the patient recalls, because patients are released by the
      mammography technologist before the radiologist reviews the images.                The
      agency also contends that, in comparing the number of exams performed by the
      appellant to those performed by J.P. and another technologist, G.A., the
      administrative   judge   failed   to   distinguish   between   different   types    of
      mammograms, some of which take longer than others. In addition, the agency
      contends that the appellant was responsible for a number of poor images (or
      “failures”) in addition to the faulty mammograms that resulted in the two patient
      recalls. PFR File, Tab 1 at 12-13. However, assuming arguendo that the agency
      is correct on these points, the justification for the retraining program was
      nonetheless questionable.    As the administrative judge noted, there was no
      contemporaneous documentation of the December 2010 recalls, which were first
      mentioned in memoranda for the record (MFR) by P.D. and J.P., dated April 11,
      and April 25, 2011, respectively. These MFRs were prepared after the appellant
      provided an April 8, 2011 statement to P.D. alleging harassment and an
      inappropriate relationship between J.P. and W.G., after the appellant informed
      P.D. and W.G. of her intent to file an IG complaint concerning these issues, and,
      in the case of J.P.’s MFR, after the appellant actually made the IG complaint. As
      the administrative judge observed, the timing of these events suggests that the
      MFRs were prepared after the fact as defensive measures, and not because the
      patient recalls were deemed to be serious when they purportedly took place. ID
      at 111.
¶17         Moreover, the agency overlooks other evidence that the retraining program
      was unjustified. Notably, RACH Chief of Staff E.G., who later proposed the
      appellant’s removal, indicated in a May 26, 2011 email message that he was
      concerned there was an ulterior motive behind the retraining program. I-1 IAF,
      Tab 23 at 247-49. In addition, as the administrative judge noted, the appellant
      received a within-grade increase on January 2, 2011, which is at odds with the
                                                                                       9

      decision to place her on a retraining program on February 23, 2011. Id. We
      therefore agree that the appellant reasonably believed that her placement on a
      retraining program was part of a pattern of harassment.
¶18         In any case, the decision to place the appellant on a retraining plan was not
      the only basis for her belief that J.P. was harassing her. I-1 IAF, Tab 107 at 2-3.
      Another factor was the appellant’s negative performance evaluation issued by J.P.
      on March 25, 2011. Id. at 3. Significantly, the appellant successfully challenged
      that evaluation, and her grievances ultimately resulted in the elevation of her
      grades in two critical elements, the elevation of her overall rating to the second
      highest possible level, the removal of negative “bullets” and comments from the
      appraisal, and the removal of negative “key points made” from the cover sheet for
      her next performance year. I-1 IAF, Tab 12 at 406. The fact that the appellant
      succeeded in her challenge lends support to a finding that the negative
      performance evaluation was part of a pattern of harassment.
¶19         Moreover, as the administrative judge discussed at length, the appellant’s
      perception that she was being harassed was shared by several other employees,
      not all of whom were her allies.     See Greenspan v. Department of Veterans
      Affairs, 464 F.3d 1297, 1305 (Fed. Cir. 2006) (considering that others shared the
      appellant’s beliefs as evidence those beliefs were reasonable).     Most notably,
      E.G., who proposed the appellant’s removal, also proposed to demote and
      suspend J.P. for 10 days on a charge of “Deficient Behavior as a Supervisor,” one
      specification of which alleged that J.P. “[a]t times demonstrated poor
      communication, professional animosity, lack of collegiality and refusal to work
      with . . . [her] subordinates.” I-1 IAF, Tab 112 at 22-23. In addition, RACH
      Chief of Nursing M.K., who conducted the agency’s internal investigation that
      led to the appellant’s removal, concluded that the disruptive workplace
      environment in the Mammography Section had been caused, at least in part, by
      “all parties,” and faulted J.P.’s poorly planned and poorly documented retraining
      of the appellant. I-1 IAF, Tab 39.
                                                                                        10

¶20         The agency correctly observes that the fact that others may have shared the
      appellant’s belief is not dispositive and that we should also consider the
      appellant’s self-interest and potential bias in determining whether she had a
      reasonable belief in the truth of her disclosures. See Kinan v. Department of
      Defense, 87 M.S.P.R. 561, ¶ 13 (2001). Specifically, the agency contends that
      the appellant made her disclosures after she was informed of the performance
      appraisal and the planned retraining and that she “was angry” with these
      decisions.   PFR File, Tab 3 at 11.     However, it is obvious that the appellant
      could not have disclosed the alleged harassing actions until after they had taken
      place. Further, while motive may be relevant to the determination of a reasonable
      belief, a disclosure is not excluded from protection based on an appellant’s
      motive in making it. Carter v. Department of the Army, 62 M.S.P.R. 393, 402
      (1994), aff’d, 45 F.3d 444 (Fed. Cir. 1995) (Table); see WPEA, Pub. L.
      No. 112-199, § 101(b)(2)(C), 126 Stat. 1465, 1466 (codified at 5 U.S.C.
      § 2302(f)(1)) (codifying this rule in the WPEA). In sum, under the circumstances
      of this case, we find that the appellant’s self-interest and potential bias do not
      undermine the reasonableness of her belief that J.P. was harassing her.
¶21         The agency also contests the administrative judge’s finding that the
      appellant    made   a   protected   disclosure   concerning   an   alleged   improper
      relationship between J.P. and W.G. The agency first argues that her IG complaint
      was “not about the relationship” and that she only mentioned it to explain why
      she had not brought the alleged harassment to W.G.’s attention. PFR File, Tab 3
      at 10; see IAF, Tab 107. However, even if the alleged relationship was not the
      primary focus of her IG complaint, the appellant nonetheless made the allegation
      on the front page of the complaint, and again in the first two paragraphs of the
      supporting list of “Grievances and Incidents.” I-1 IAF, Tab 107. Moreover, as
      noted above, a disclosure is not excluded from protection because of the
      appellant’s motive in making it. Carter, 62 M.S.P.R. at 402.
                                                                                            11

¶22            We also discern no error in the administrative judge’s finding that the
      disclosure was based on a reasonable belief. While it is undisputed that W.G. and
      J.P. were not in fact in an intimate relationship, the record reflects that the
      appellant was not alone in her impression. On April 18, 2011, P.D. counseled
      W.G. in writing about a “perceived improper relationship” with J.P. I-1 IAF,
      Tab 112 at 277-78. That same day, P.D. verbally counseled J.P. about the same
      issue.        I-1 IAF, Tab 21 at 272.   In his MFR recording the counseling, P.D.
      indicated that he told J.P. that, although he had not found sufficient evidence to
      confirm the appellant’s allegations, he did find some Radiology Department
      employees who shared the appellant’s perception of an improper relationship, and
      he counseled J.P. to “refrain from activities or actions that would contribute to
      this perception.” Id. The shared perception of an improper relationship, even if
      inaccurate, weighs in favor of a finding that the appellant’s belief was
      reasonable. 2 See Greenspan, 464 F.3d at 1305.
¶23            However, we disagree with the administrative judge that the appellant’s
      allegation of an intimate relationship between J.P. and W.G. was a protected
      disclosure of an abuse of authority. We have held that it is an abuse of authority
      for a supervisor to give preferential treatment to a subordinate with whom he or
      she      is    having   an   intimate   relationship.    Sirgo    v.   Department     of


      2
        The agency cites Special Counsel v. Spears, 75 M.S.P.R. 639 (1997), in which the
      Board found that an allegation of preferential treatment between the respondent and a
      subordinate employee—who, according to office gossip, were having an affair—did not
      meet the reasonable belief standard. In reaching that finding, the Board noted that,
      while the agency’s IG had found that there was a perception that the respondent was
      having an affair with the subordinate and giving her preferential treatment, that finding
      was unpersuasive, because there was no indication that the IG had considered the
      possibility that the rumors might have been malicious fabrications by a network of
      disgruntled employees. Id. at 655-56. In this case, however, we find nothing in the
      record to suggest such a conspiracy. Rather, it appears that the perception of an
      intimate relationship between J.P. and W.G. was based on the observation of innocent
      activities, e.g., shopping together, that were open to misinterpretation.
                                                                                          12

      Justice, 66 M.S.P.R. 261, 266-67 (1995).         In this case, however, while the
      appellant stated in her IG complaint that she felt “uncomfortable” bringing her
      concerns about the hostile work environment to W.G.’s attention, she did not
      allege W.G. had in fact given J.P. preferential treatment or otherwise exercised
      his authority in an arbitrary or capricious manner.              This case is thus
      distinguishable from Sirgo.
¶24         Nor did the appellant make a protected disclosure of a violation of law,
      rule, or regulation. Ordinarily, to make a protected disclosure of a law, rule, or
      regulation, an employee must identify the specific law, rule, or regulation that
      was violated. Langer v. Department of the Treasury, 265 F.3d 1259, 1266 (Fed.
      Cir. 2001). Although an individual need not identify a statutory or regulatory
      provision by a particular title or number “when the statements and the
      circumstances surrounding the making of those statements clearly implicate an
      identifiable violation of law, rule, or regulation,” id., the appellant’s allegation of
      an improper relationship between J.P. and W.G. falls short of this standard. In
      finding the disclosure protected, the administrative judge cited Army Regulation
      R 600-20, chapter 4-16, which prohibits fraternization between officers of
      different ranks, but, as the agency correctly observes, J.P. and W.G. were not
      service members of different ranks. The administrative judge elsewhere cited the
      ethics regulations at 5 C.F.R. § 2635.101(b)(8) and (14), which prohibit
      employees from giving preferential treatment or creating the appearance thereof.
      See ID at 41 n.40; see also Department of Defense Directive 5500.07-R (Joint
      Ethics Regulation), § 1-300(b) (making 5 C.F.R. § 2635 applicable to enlisted
      military members).     However, the appellant did not allege that W.G. gave or
      appeared to give J.P. preferential treatment. In sum, we find that the appellant’s
      allegation of an improper relationship between J.P. and W.G., even though based
      on a reasonable belief, was not a protected disclosure.
                                                                                        13

            The appellant’s protected disclosure was a contributing factor in
            her removal.
¶25         To prevail on a claim under the WPA, an appellant must prove by
      preponderant evidence that her protected disclosures were a contributing factor in
      a personnel action. The most common way of proving the contributing factor
      element is the “knowledge/timing” test.      Wadhwa v. Department of Veterans
      Affairs, 110 M.S.P.R. 615, ¶ 12, aff’d, 353 F. App’x 434 (Fed. Cir. 2009). Under
      that test, an appellant can prove the contributing factor element 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. To satisfy the test, the appellant need demonstrate only
      that the fact of, not necessarily the content of, the protected disclosure was one of
      the factors that tended to affect the personnel action in any way. Armstrong v.
      Department of Justice, 107 M.S.P.R. 375, ¶ 19 (2007).
¶26         The timing component of the test is satisfied where, as here, the contested
      personnel action took place slightly more than 1 year after the protected
      disclosure.   See Gonzalez v. Department of Transportation, 109 M.S.P.R. 250,
      ¶ 20 (2008). Furthermore, the agency’s report of its internal investigation, which
      was a focus of both the notice of proposed removal and the deciding official’s
      deliberations, included a reference to the appellant’s IG complaint.        I-1 IAF,
      Tab 37 at 15; see I-1 IAF, Tab 40, Subtab 4e (proposal notice).          Hence, the
      proposing and deciding officials were aware of at least the fact of the appellant’s
      disclosure, which is sufficient to satisfy the knowledge component. Accordingly,
      we proceed to the question of whether the agency proved by clear and convincing
      evidence that it would have removed her in the absence of her protected
      whistleblowing activity.
                                                                                     14

      The administrative judge properly found that the agency failed to prove by clear
      and convincing evidence that it would have removed the appellant in the absence
      of her IG complaint.
¶27         Because the appellant proved her prima facie case of whistleblower
      reprisal, the burden shifted to the agency. See Simmons, 99 M.S.P.R. 28, ¶ 23. In
      determining whether an agency met its burden to show by clear and convincing
      evidence that it would have taken the same personnel action in the absence of
      whistleblowing, the Board will consider the following factors: the strength of the
      agency’s evidence in support of its action; the existence and strength of any
      motive to retaliate on the part of the agency officials who were involved in the
      decision; and 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).
      Our reviewing court has further clarified that “[e]vidence 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).
¶28         In considering the strength of the agency’s evidence in support of its
      action, the administrative judge incorporated by reference his thorough analysis
      of all 25 specifications under the agency’s charge. ID at 53-204, 216-27. We
      find that the administrative judge gave due consideration to the evidence for and
      against each specification, and we agree that the agency’s failure to prove a
      majority of the specifications is a sign of overreach. Moreover, contrary to the
      agency’s suggestion in its petition for review, the administrative judge did
      acknowledge the extent to which the sustained conduct was disruptive to the work
      environment.   The question, however, is not whether the appellant’s conduct
      could have warranted discipline, but whether the agency would have removed her
      in the absence of her whistleblowing. See, e.g., Savage v. Department of the
                                                                                       15

      Army, 122 M.S.P.R. 612, ¶ 52 (2015) (remanding for further adjudication on the
      “clear and convincing” test even though at least one specification was sustained).
      As the administrative judge correctly noted, the strength of the agency’s case is
      diminished to the extent the stress caused by its wrongful actions, such as the
      negative performance evaluation and placement of the appellant on a retraining
      program, led the appellant to act out against her better judgment. See Whitmore,
      680 F.3d at 1375. The administrative judge also properly considered the extent to
      which the dysfunctional work environment was the result of the agency’s hostile
      reaction to her whistleblowing.      See id. at 1376; Chavez v. Department of
      Veterans Affairs, 120 M.S.P.R. 285, ¶ 31 (2013). Here, the agency continued to
      defend against the appellant’s challenges to the appraisal and continued to
      implement the flawed retraining plan after her IG complaint was filed, and much
      of the sustained misconduct also occurred during this time frame. See ID at 220.
¶29         Concerning the second Carr factor, while we have found that the
      appellant’s allegation of an improper relationship between J.P. and W.G. is not a
      protected disclosure, we nonetheless find that agency officials involved in the
      appellant’s removal had a strong motive to retaliate against her based solely on
      her disclosure that J.P. was harassing her. Most obviously, J.P. herself had a
      clear and strong retaliatory motive. See Whitmore, 680 F.3d at 1371 (determining
      that reprisal motive of employees other than just the proposing and deciding
      officials may be relevant). Moreover, while neither the proposing nor deciding
      official was directly implicated by the appellant’s protected disclosure, J.P was in
      their chain of command; therefore, the appellant’s criticisms reflected on both in
      their capacity as managers and employees, which is sufficient to establish a
      substantial retaliatory motive. See Chavez, 120 M.S.P.R. 285, ¶ 33.
¶30         Finally, as the administrative judge explained, there is no evidence that the
      agency took similar actions against employees who were not whistleblowers but
      who were similarly situated.    See ID at 235-36.    In sum, notwithstanding our
      finding that one of the appellant’s disclosures was not protected, we agree with
                                                                                      16

      the administrative judge that the agency failed to prove by clear and convincing
      evidence that it would have removed her in the absence of her whistleblowing.
      Because we find that the removal action must be reversed based on the agency’s
      violation of 5 U.S.C. § 2302(b)(8), we do not reach the question of whether the
      administrative judge was correct in finding that the appellant’s removal was also
      the result of reprisal for her union activity.

                                             ORDER
¶31         We ORDER the agency to cancel the removal and to retroactively restore
      the appellant effective April 5, 2012. See Kerr v. National Endowment for the
      Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
      later than 20 days after the date of this decision.
¶32         We also ORDER the agency to pay the appellant the correct amount of
      back pay, interest on back pay, and other benefits under the Office of Personnel
      Management’s regulations, no later than 60 calendar days after the date of this
      decision. We ORDER the appellant to cooperate in good faith in the agency’s
      efforts to calculate the amount of back pay, interest, and benefits due, and to
      provide all necessary information the agency requests to help it carry out the
      Board’s Order. If there is a dispute about the amount of back pay, interest due,
      and/or other benefits, we ORDER the agency to pay the appellant the undisputed
      amount no later than 60 calendar days after the date of this decision.
¶33         We further ORDER the agency to tell the appellant promptly in writing
      when it believes it has fully carried out the Board’s Order and of the actions it
      took to carry out the Board’s Order. The appellant, if not notified, should ask the
      agency about its progress. See 5 C.F.R. § 1201.181(b).
¶34         No later than 30 days after the agency tells the appellant that it has fully
      carried out the Board’s Order, the appellant may file a petition for enforcement
      with the office that issued the initial decision on this appeal if the appellant
      believes that the agency did not fully carry out the Board’s Order. The petition
                                                                                       17

      should contain specific reasons why the appellant believes that the agency has not
      fully carried out the Board’s Order, and should include the dates and results of
      any communications with the agency. 5 C.F.R. § 1201.182(a).
¶35         For agencies whose payroll is administered by either the National Finance
      Center of the Department of Agriculture (NFC) or the Defense Finance and
      Accounting Service (DFAS), two lists of the information and documentation
      necessary to process payments and adjustments resulting from a Board decision
      are attached. The agency is ORDERED to timely provide DFAS or NFC with all
      documentation necessary to process payments and adjustments resulting from the
      Board’s decision in accordance with the attached lists so that payment can be
      made within the 60-day period set forth above.
¶36         This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
      § 1201.113(c)).

                        NOTICE TO THE APPELLANT REGARDING
                              YOUR RIGHT TO REQUEST
                             ATTORNEY FEES AND COSTS
            You may be entitled to be paid by the agency for your reasonable attorney
      fees and costs. To be paid, you must meet the requirements set out at title 5 of
      the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
      regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
      you believe you meet these requirements, you must file a motion for attorney fees
      WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.                          You
      must file your attorney fees motion with the office that issued the initial decision
      on your appeal.
                                                                              18

                          NOTICE TO THE APPELLANT
                      REGARDING YOUR RIGHT TO REQUEST
                          CONSEQUENTIAL DAMAGES
       You may be entitled to be paid by the agency for your consequential
damages, including medical costs incurred, travel expenses, and any other
reasonable and foreseeable consequential damages. To be paid, you must meet
the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may
be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.204. If you believe you
meet these requirements, you must file a motion for consequential damages
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.                        You
must file your motion with the office that issued the initial decision on your
appeal.

                            NOTICE TO THE PARTIES
       A copy of the decision will then be referred to the Special Counsel “to
investigate and take appropriate action under [5 U.S.C.] section 1215,” based on
the determination that “there is reason to believe that a current employee may
have      committed     a   prohibited   personnel   practice”   under   5 U.S.C.
§ 2302(b)(8). 5 U.S.C. § 1221(f)(3).

                  NOTICE TO THE APPELLANT REGARDING
                     YOUR FURTHER REVIEW RIGHTS
       You have the right to request further review of this final decision. There
are several options for further review set forth in the paragraphs below. You may
choose only one of these options, and once you elect to pursue one of the avenues
of review set forth below, you may be precluded from pursuing any other avenue
of review.

Discrimination Claims: Administrative Review
       You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
                                                                                   19

of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                 P.O. Box 77960
                            Washington, D.C. 20013

If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                131 M Street, NE
                                  Suite 5SW12G
                            Washington, D.C. 20507

      You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
                                                                                  20

prepayment    of   fees,   costs,   or   other   security.   42 U.S.C.   § 2000e-5(f)
and 29 U.S.C. § 794a.

Other Claims: Judicial Review
      If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices described in 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request the United States Court of Appeals for the Federal Circuit or any
court of appeals of competent jurisdiction to review this final decision. The court
of appeals must receive your petition for review within 60 days after the date of
this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you
choose to file, be very careful to file on time.
      If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec.
27, 2012). You may read this law as well as other sections of the United States
Code, at our website, http://www.mspb.gov/appeals/uscode/htm.             Additional
information about the United States Court of Appeals for the Federal Circuit is
available at the court’s website, www.cafc.uscourts.gov. Of particular relevance
is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained
within the court’s Rules of Practice, and Forms 5, 6, and 11.             Additional
information about other courts of appeals can be found at their respective
websites,               which                can             be             accessed
through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
      If you are interested in securing pro bono representation for your appeal to
the United States Court of Appeals for the Federal Circuit, you may visit our
website at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
                                                                               21

Circuit.   The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.



FOR THE BOARD:


______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
                                                     DFAS CHECKLIST
                                      INFORMATION REQUIRED BY DFAS IN
                                     ORDER TO PROCESS PAYMENTS AGREED
                                       UPON IN SETTLEMENT CASES OR AS
                                        ORDERED BY THE MERIT SYSTEMS
                                             PROTECTION BOARD
     AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT
                                                 CASES
     CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL
         OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:

     1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address
            and POC to send.
     2. Statement that employee was counseled concerning Health Benefits and TSP and the
            election forms if necessary.
     3. Statement concerning entitlement to overtime, night differential, shift premium,
            Sunday Premium, etc, with number of hours and dates for each entitlement.
     4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay
            System), a statement certifying any lump sum payment with number of hours and
            amount paid and/or any severance pay that was paid with dollar amount.
     5. Statement if interest is payable with beginning date of accrual.

     6. Corrected Time and Attendance if applicable.

        ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:
1. Copy of Settlement Agreement and/or the MSPB Order.
2. Corrected or cancelled SF 50's.
3. Election forms for Health Benefits and/or TSP if applicable.
4. Statement certified to be accurate by the employee which includes:
      a. Outside earnings with copies of W2's or statement from employer.
       b. Statement that employee was ready, willing and able to work during the period.
       c. Statement of erroneous payments employee received such as; lump sum leave, severance
       pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew
       Retirement Funds.
5. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as
ordered by the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise
information describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
   a. Employee name and social security number.
   b. Detailed explanation of request.
   c. Valid agency accounting.
   d. Authorized signature (Table 63)
   e. If interest is to be included.
   f. Check mailing address.
   g. Indicate if case is prior to conversion. Computations must be attached.
   h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to
be collected. (if applicable)
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement. (if applicable)
2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and
amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address
to return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of
the type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual
Leave to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
Period and required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump
Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
   a. Must provide same data as in 2, a-g above.
   b. Prior to conversion computation must be provided.
   c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.
