                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     THOMAS J. QUATRINI,                             DOCKET NUMBER
                  Appellant,                         AT-1221-14-0586-W-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: January 30, 2015
       SECURITY,
                 Agency.



                       THIS ORDER IS NO NPRECEDENTIAL 1

           Archibald J. Thomas, III, Jacksonville, Florida, for the appellant.

           Joel Alexander, Esquire, Irving, Texas, 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
     dismissed his 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.

                        DISCUSSION OF ARGUMENTS ON REVIEW
¶2        The agency terminated the appellant, a GS-9 Paralegal Specialist in the
     agency’s Freedom of Information Act (FOIA) Office, during his 1-year
     probationary period for unsatisfactory performance and conduct in the workplace.
     Initial Appeal File (IAF), Tab 9 at 14-16 (removal notice), 43 (Standard Form
     50). The appellant filed a complaint with the Office of Special Counsel (OSC),
     alleging reprisal for protected disclosures.   IAF, Tab 1 at 10-21.     Once OSC
     closed its investigation, the appellant filed the instant IRA appeal. Id. at 1-8.
     The administrative judge informed the appellant of his burden to establish
     jurisdiction over an IRA appeal and the parties responded. IAF, Tabs 3, 7-8. In
     an initial decision, the administrative judge found that the appellant had failed to
     nonfrivolously allege that any of his alleged disclosures were protected by the
     Whistleblower Protection Act (WPA) and dismissed the matter for lack of
     jurisdiction without holding the requested hearing. IAF, Tab 12, Initial Decision
     (ID) at 2-8. The appellant has filed a petition for review and the agency has
     responded in opposition. Petition for Review (PFR) File, Tabs 1-2.
¶3        The Board has jurisdiction over an IRA appeal if the appellant has
     exhausted his administrative remedies before OSC and makes nonfrivolous
     allegations that: (1) he engaged in whistleblowing activity by making a protected
     disclosure; and (2) the disclosure was a contributing factor in the agency’s
     decision to take or fail to take a personnel action.      Yunus v. Department of
     Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). As set forth below, we
     find that the appellant exhausted his remedies before OSC and that he
     nonfrivolously alleged that his disclosures regarding alleged overtime and
     compensatory time violations and email fraud were protected and that these
     disclosures were a contributing factor in the personnel action.
                                                                                    3

     The appellant exhausted his OSC remedies as to some disclosures.

¶4        The administrative judge did not make an explicit finding on exhaustion of
     remedies but purported to rely on the appellant’s OSC complaint in outlining the
     appellant’s alleged disclosures.   ID at 2 n.1.   An appellant may demonstrate
     exhaustion of his OSC remedies through his initial OSC complaint and evidence
     that he amended or supplemented his initial OSC complaint, including OSC’s
     determination letter. Mason v. Department of Homeland Security, 116 M.S.P.R.
     135, ¶ 8 (2011).    Thus, we find that the following alleged disclosures were
     exhausted before OSC:     (1) the appellant informed his supervisor and other
     employees that personnel regulations did not permit the agency to require
     employees to work uncompensated overtime and that compensatory time could
     not be mandatory, IAF, Tab 1 at 14, 15; (2) he informed the FOIA Officer that
     she could not “reflect” an employee’s use of compensatory time on his or her
     performance evaluation, id. at 15; (3) he complained to the FOIA Officer and
     Deputy Officer that probationary employees had not been provided objective
     performance measures or performance feedback and that there was no consistency
     between the reviewers, id. at 16-17; (4) he informed his supervisor that
     performing FOIA request intake duties was not part of his duties, and requested
     instructions in writing relieving him from FOIA analyst duties while performing
     intake duties, id.; (5) he informed the FOIA Officer that the probationary
     employees lacked objective performance measures and performance feedback and
     that she had made rude and disrespectful comments to the office employees, id.
     at 17; (6) he “engaged” the Office of Inspector General and office leadership
     regarding office efficiency, employee treatment, and FOIA processes; (7) he
     “decr[ied]” gross mismanagement and an abuse of authority in the agency’s
     treatment of employees and the establishment of an unfair work output quota;
     (8) he disclosed to an unspecified person that agency officials did not train him
     properly; and (9) he disclosed to an unspecified person that the agency failed to
                                                                                            4

     investigate alleged nepotism and alleged email fraud/forgery after an email was
     sent from a fake gmail account associated with the appellant’s name. 2 Id. at 8.
     The appellant made a nonfrivolous allegation of a protected disclosure.

¶5         On petition for review, the appellant argues that the administrative judge
     erred insofar as she determined that he had failed to nonfrivolously allege a
     protected disclosure regarding nonpayment of overtime and because she failed to
     mention or evaluate his alleged disclosure of email fraud. PFR File, Tab 1 at 4.
     He alleges that these disclosures were “so obvious” that he need not have
     identified the law, rule, or regulation violated. 3 Id. The appellant also broadly
     asserts that, taken together, his disclosures evidence gross mismanagement. Id.
     Because the appellant has not specifically challenged any other of the
     administrative judge’s findings on review, we will consider only these challenges
     to the initial decision. See 5 C.F.R. § 1201.114(b).
¶6         At   the jurisdictional    stage,   the   appellant   is only burdened        with
     nonfrivolously alleging that he reasonably believed that his disclosure evidenced
     one of the circumstances described in 5 U.S.C. § 2302(b)(8); namely, a violation
     of law, rule, or regulation, gross mismanagement, a gross waste of funds, an
     abuse of authority, or a substantial and specific danger to public health or safety. 4


     2
       The administrative judge considered an additional d isclosure regarding unauthorized
     personnel being allowed into secure areas, ID at 3, 6, wh ich only appears in the
     appellant’s Board appeal and not the OSC complaint or OSC close-out letter, see IAF,
     Tab 1 at 8, 14-21, 26-29. There is no indication that the alleged disclosure regarding
     unauthorized personnel being allowed in secure areas was ever presented to OSC. See
     id. Thus, we find that the appellant did not exhaust his OSC remedy with respect to the
     unauthorized personnel disclosure.
     3
      On petition for review, the appellant asserts that his disclosures regard ing nonpayment
     of overtime compensation sufficiently identified a vio lation of the Fair Labor Standards
     Act (FLSA), Pub. L. 75-718, ch. 676, 52 Stat. 1060 (June 25, 1938); 29 U.S.C. ch. 8,
     and that his disclosure of email fraud clearly implicated the Computer Fraud and Abuse
     Act (CFAA), 18 U.S.C. § 1030. PFR File, Tab 1 at 4.
     4
       The Whistleblower Protection Enhancement Act of 2012 amended various provisions
     of the WPA, including 5 U.S.C. § 2302(b)(9), wh ich provides for additional types of
                                                                                          5

     Mason, 116 M.S.P.R. 135, ¶ 17; see 5 U.S.C. § 2302(b)(8). The proper test for
     determining if an employee had a reasonable belief that his disclosures were
     protected 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 conditions set forth in 5 U.S.C.
     § 2302(b)(8). Mason, 116 M.S.P.R. 135, ¶ 17. Moreover, the WPA does not
     require an employee to identify the particular statutory or regulatory provision
     that the agency allegedly violated where his statements and circumstances of
     those statements clearly implicate an identifiable law, rule, or regulation.
     Baldwin v. Department of Veterans Affairs, 113 M.S.P.R. 469, ¶ 12 (2010). Any
     doubt or ambiguity as to whether the appellant made nonfrivolous jurisdictional
     allegations should be resolved in favor of finding jurisdiction.            Ingram v.
     Department of the Army, 114 M.S.P.R. 43, ¶ 10 (2010).
¶7        Below, the appellant generally asserted that some of his wage and hour
     disclosures evidenced violations of Office of Personnel Management (OPM)
     regulations, but he did not identify any specific provision of law, rule, or
     regulation. See IAF, Tabs 1, 7. The administrative judge found that the appellant
     had failed to nonfrivolously allege that he had made a protected disclosure of any
     wage and hour violation because: (1) it was not clear, and the appellant failed to
     explain, how informing employees that they could not work uncompensated
     overtime evidences a violation of law, rule, or regulation, ID at 4; (2) she was not
     aware of, and the appellant failed to identify, any law, rule, or regulation that the
     agency may have violated by offering employees compensatory time instead of
     overtime, ID at 4-5; and (3) she was not aware of, and the appellant failed to
     identify, any law, rule, or regulation that would prevent a supervisor from
     mentioning whether an employee had worked compensatory time in his
     performance evaluation, ID at 5.

     protected activities. See Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 9 (2014).
     However, none of these new activities are implicated here. See 5 U.S.C. § 2302(b)(9).
                                                                                             6

¶8         As indicated above, however, the appellant need not prove that the
     condition he disclosed actually established a violation of law, rule, or regulation.
     See 5 U.S.C. § 2302(b)(8)(A)(i); see also Mason, 116 M.S.P.R. 135, ¶ 17. Here,
     we find that the appellant’s statement that management required paralegals to
     work uncompensated overtime reasonably asserts a possible violation of the
     FLSA. 5 See supra n.3; see also IAF, Tab 1 at 14, 27; Mogyorossy v. Department
     of the Air Force, 96 M.S.P.R. 652, ¶ 11 (2004) (finding a possible violation of the
     FLSA when the appellant disclosed that the agency failed to pay overtime to
     employees for overtime worked).          In addition, we find that a disinterested
     observer in the appellant’s position could reasonably believe the appellant’s
     statements, that OPM regulations prohibit agencies from requiring employees to
     work compensatory overtime and/or from reflecting an employee’s use of
     compensatory time in his or her performance evaluation, evidence violations of
     federal wage and hour laws and regulations. 6            See IAF, Tab 1 at 15, 28.
     Accordingly, as to these wage and hour disclosures, we find that the appellant
     nonfrivolously alleged that he disclosed a violation of law, rule, or regulation.
     See Chavez, 120 M.S.P.R. 285, ¶ 19.
¶9         Next, the appellant asserts that his disclosure regarding an alleged email
     sent by another employee from a “fake” gmail account associated with the




     5
       On review, the agency asserts that the appellant did not allege any wrongdoing or that
     any employee worked overtime without compensation but that he simply told employees
     that they “should not work overtime without compensation.” PFR File, Tab 3 at 12.
     However, we find this contention to be unsupported by the record. See IAF, Tab 1
     at 14, 27.
     6
       Although the appellant need not have identified any specific law or regu lation by title
     or number, we note that 5 C.F.R. § 551.531(c) and 5 U.S.C. § 5543(b) provide that an
     agency may not require an employee to be compensated for overtime work with
     compensatory time-off. Further, 5 C.F.R. § 551.531(c) prohibits an employee from
     attempting to coerce any other employee’s right to request or not request compensatory
     time-off in lieu of overtime pay.
                                                                                          7

      appellant’s name to several supervisors evidences a violation of the CFAA. 7 PFR
      File, Tab 1 at 4. Below, the appellant characterized this disclosure as evincing
      gross mismanagement based on the agency’s failure to investigate the alleged
      unethical act of email fraud/forgery, rather than as a violation of law, rule, or
      regulation, as he does on review.      See IAF, Tab 1 at 9, 26-27.       There is no
      requirement, however, that an appellant correctly label the category of
      wrongdoing under section 2302(b)(8) in order to establish Board jurisdiction.
      Tullis v. Department of the Navy, 117 M.S.P.R. 236, ¶ 7 (2012). Moreover, as
      stated above, the WPA does not require the appellant to identify a particular
      statutory or regulatory provision that the agency allegedly violated.       Baldwin,
      113 M.S.P.R. 469, ¶ 12. A disinterested person in the appellant’s position could
      reasonably believe that federal computer crime and fraud laws have been violated
      when a federal employee creates an email account in his coworker’s name,
      without authorization and then uses that email account to effectively impersonate
      the coworker in communications with his supervisors. See PFR File, Tab 1 at 4;
      see also IAF, Tab 1 at 9, 26-27; 18 U.S.C. § 1030. As such, we find that the
      appellant nonfrivolously alleged that he reasonably believed this disclosure
      evidenced a violation of law.
¶10        Lastly, the appellant contends that “the bulk of [his] disclosures under the
      totality of the circumstances and taken together as a whole” should be sufficient
      to meet the standard for gross mismanagement because they “show agency action
      or inaction which creates a substantial risk of significant adverse impact upon the
      agency’s ability to accomplish its mission.” PFR File, Tab 1 at 4. The Board,
      however, requires an appellant to provide more than vague and conclusory
      allegations of wrongdoing. Linder, 122 M.S.P.R. 14, ¶ 13. Here, the appellant’s
      allegation that some of his disclosures, taken together, would show an unspecified

      7
        The CFAA, see supra n.3, is a crim inal statute governing computer crime and fraud
      on the internet, which, among other things, makes it illegal to intentionally access a
      computer without authorization or in excess of authorization. 18 U.S.C. § 1030.
                                                                                            8

      threat to an agency’s ability to accomplish its mission, is a conclusory allegation
      lacking in specificity, and, as such, does not constitute a nonfrivolous allegation
      of IRA jurisdiction.    PFR File, Tab 1 at 4; see Rzucidlo v. Department of the
      Army, 101 M.S.P.R. 616, ¶ 17 (2006).          Accordingly, we need not consider it
      further.
¶11         Even if we were to consider the appellant’s vague claim that some of his
      disclosures, when considered together, show gross mismanagement, the result
      would be the same. See IAF, Tab 1 at 9-21, 26-29; see also PFR File, Tab 1 at 4.
      Gross mismanagement is more than de minimis wrongdoing or negligence; it
      means a management action or inaction that creates a substantial risk of
      significant adverse impact on the agency’s ability to accomplish its mission.
      Shriver v. Department of Veterans Affairs, 89 M.S.P.R. 239, ¶ 7 (2001).               A
      disclosure questioning management decisions that are merely debatable or
      constitute just simple negligence, with no element of blatancy, is not protected as
      a disclosure of gross mismanagement. Id. In the instant case, the appellant’s
      disclosures regarding alleged unfair output quotas, lack of objective performance
      standards,   office inefficiencies,    rude   or disrespectful    comments by the
      supervisors, and management’s failure to investigate allegations of unethical acts,
      even if true, do not reveal anything more than a questioning of management
      decisions that are merely debatable or simple negligence, and we discern no
      indication of blatant wrongdoing. 8       See Fisher v. Environmental Protection
      Agency, 108 M.S.P.R. 296, ¶ 9 (2008); see also IAF, Tab 1 at 9-21. As such, we
      agree with the administrative judge’s finding that the appellant failed to make any
      disclosure that a disinterested person in his position would reasonably believe

      8
        The appellant also claimed below that he d isclosed gross mismanagement insofar as he
      requested “dispensation” from his analyst duties in order to perform leadership-directed
      intake duties. IAF, Tab 1 at 16-17, 28. However, it is not clear, and the appellant has
      not explained, how a request to be excused from duties constitutes a disclosure of gross
      mismanagement or any other situation under 5 U.S.C. § 2302(b)(8). Accordingly, we
      will not address this alleged disclosure further.
                                                                                        9

      evidenced gross mismanagement. See ID at 6; see also Chavez v. Department of
      Veterans Affairs, 120 M.S.P.R. 285, ¶ 18 (2013).
      The appellant nonfrivolously alleged that his disclosures were a contributing
      factor in the agency’s decision to take a personnel action against him.
¶12        To establish Board jurisdiction over his IRA appeal, the appellant also must
      nonfrivolously allege that his protected activity was a contributing factor in the
      agency’s decision to take the personnel action. Carney v. Department of Veterans
      Affairs, 121 M.S.P.R. 446, ¶ 7 (2014).         Because the administrative judge
      determined that the appellant failed to nonfrivolously allege that he made a
      protected disclosure, she did not make any finding as to whether any protected
      disclosure was a contributing factor in the appellant’s termination. See ID at 8.
      Having determined on review that the appellant nonfrivolously alleged that he
      made several protected disclosures, we also will consider whether a protected
      disclosure was a contributing factor in the agency’s decision to terminate him.
¶13        For jurisdictional purposes, an employee may establish that a protected
      activity was a contributing factor to a covered personnel actions through
      circumstantial evidence, such as the acting official’s knowledge of the protected
      activity and the timing of the personnel actions. Carney, 121 M.S.P.R. 446, ¶ 7.
      The Board has held that personnel actions that were alleged to have begun within
      1 year of the disclosures satisfy the “timing” component of the knowledge-timing
      test. See Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 10 (2013).
      In the instant case, the record shows that the appellant entered on duty with the
      agency on May 20, 2012, and was terminated on November 28, 2012, by the
      Deputy FOIA Officer. IAF, Tab 1 at 22-24. The appellant alleges that he made
      disclosures pertaining to overtime and compensatory time to his immediate
      supervisor and the FOIA Officer in June and July 2012, and that the information
      was also conveyed to the Deputy FOIA Officer. Id. at 14-15, 27-28. He also
      asserts that, at some point during his 6-month employment, he informed the
      Deputy FOIA Officer and FOIA Officer of the alleged email fraud. See id. at 9,
                                                                                    10

      26-27. Thus, we find that the appellant has made a nonfrivolous allegation that a
      protected disclosure was one factor that tended to affect the personnel action in
      some way based on the knowledge-timing test because the acting official was
      aware of the disclosures and the personnel action occurred within 6 months or
      less of all of his disclosures. See Carney, 121 M.S.P.R. 446, ¶ 7.
¶14        Accordingly, we find that the appellant has nonfrivolously alleged that that
      the disclosures were a contributing factor in the agency’s decision to terminate
      his employment.

                                           ORDER
           For the reasons discussed above, we REMAND this case to the regional
      office for further adjudication on the merits of this IRA appeal. On remand, the
      administrative judge shall hold a hearing and shall determine whether the
      appellant established by preponderant evidence that he engaged in whistleblowing
      activity by making a protected disclosure under 5 U.S.C. § 2302(b)(8) when he
      allegedly disclosed wage and hour violations and email fraud, and that such
      whistleblowing activity was a contributing factor in the personnel action; if so,
      the administrative judge 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 disclosure.         5 U.S.C. §§ 1221(e),
      2302(b)(8); Fisher, 108 M.S.P.R. 296, ¶ 15.




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