                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOHN D. EVANS,                                  DOCKET NUMBER
                         Appellant,                  DA-1221-13-0422-W-1

                  v.

     DEPARTMENT OF THE AIR FORCE,                    DATE: September 2, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           John D. Evans, Normal, Illinois, pro se.

           Charles R. Vaith, Esquire, Randolph Air Force Base, Texas, for the agency.


                                           BEFORE

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


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     denied his request for corrective action in connection with his individual right of
     action (IRA) appeal. Generally, we grant petitions such as this one only when:
     the initial decision contains erroneous findings of material fact; the initial


     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                      2

     decision is based on an erroneous interpretation of statute or regulation or the
     erroneous application of the law to the facts of the case; the judge’s rulings
     during either the course of the appeal or the initial decision were not consistent
     with required procedures or involved an abuse of discretion, and the resulting
     error affected the outcome of the case; or new and material evidence or legal
     argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. See Title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, and based on the following points and authorities, we conclude that the
     petitioner has not established any basis under section 1201.115 for granting the
     petition for review. Therefore, we DENY the petition for review and AFFIRM
     the initial decision, which is now the Board’s final decision.             5 C.F.R.
     § 1201.113(b).
¶2        The appellant, formerly a GS-13 Educational Services Officer, filed an IRA
     appeal, submitting a closure letter from the Office of Special Counsel (OSC).
     Initial Appeal File (IAF), Tab 1. In the letter, OSC stated that it had terminated
     its inquiry into the appellant’s complaint in which he alleged that the agency
     retaliated against him for reporting violations of agency regulations by issuing
     him an unwarranted Letter of Reprimand, failing to promote him, changing his
     work duties, promoting another employee (R.G.) over him through a settlement
     agreement, and subjecting him to disparate procedures when he made
     work-related requests. Id. at 4. The appellant declined a hearing. Id. at 2.
¶3        In response to the administrative judge’s jurisdictional order, IAF, Tab 4,
     the appellant described his disclosure as involving Air Force Instruction (AFI)
     36-2605, which deals with the Air Force Military Personnel Testing System, IAF,
     Tab 6, and he claimed that he disclosed that the agency had appointed certain
     employees to perform Weighted Airman Promotion System testing without
     appropriate security clearances, as required by AFI 36-2605, resulting in security
     violations, id. at 3.   He indicated, and provided evidence to show, that he
                                                                                         3

     disclosed this matter to various agency officials and other individuals, including
     Senator Kay Bailey Hutchison, beginning in October 2009 and continuing through
     August 2012. Id. at 1-2, 29-30. The appellant alleged that, in retaliation for his
     disclosure, the agency improperly promoted R.G. over him in June 2011, and
     forced him and his staff to participate in an external manpower study for
     excessive overtime use and that, after he resigned on July 27, 2012, agency
     officials misinformed the Texas Workforce Commission (TWC) that he quit his
     job because he felt he was a victim of harassment, resulting in his being denied
     unemployment benefits.      Id. at 4, 59.   The appellant stated that he filed his
     complaint with OSC on November 13, 2012. Id. at 6.
¶4        The agency moved that the appeal be dismissed for lack of jurisdiction on
     the basis that the appellant had filed an earlier IRA appeal involving the same
     protected disclosure and that the administrative judge in that case had denied the
     appellant’s request for corrective action. IAF, Tab 7; see Evans v. Department of
     the Air Force, MSPB Docket No. DA-1221-12-0240-W-1, Initial Decision (June
     22, 2012). 2 The administrative judge advised the appellant that she planned to
     dismiss his current appeal on the basis of res judicata unless he showed that his
     most recent OSC complaint involved allegations of retaliation for whistleblowing
     that were not previously adjudicated. IAF, Tab 9; see Peartree v. U.S. Postal
     Service, 66 M.S.P.R. 332, 337 (1995).       In response, the appellant submitted a
     number of emails he sent to OSC concerning the security violations, IAF, Tab 10
     at 8-12, 13-17, the agency’s promotion of R.G. over him, id. at 32-33, the alleged
     misinformation provided to the TWC, id. at 43-44, and the external manpower
     study of excessive use of overtime in which he alleged he was forced to
     participate, IAF, Tab 11 at 4-6.
¶5        The administrative judge ruled that the personnel actions addressed in the
     appellant’s earlier IRA appeal were barred by res judicata. IAF, Tab 12. She
     2
       That decision became the Board’s final decision on July 27, 2012, when neither party
     filed a petition for review.
                                                                                             4

     found that the matter of the agency’s allegedly providing incorrect information to
     the TWC, resulting in the appellant’s being denied unemployment compensation,
     was not a personnel action because it did not involve a decision made by the
     agency.    The administrative judge ordered the appellant to submit further
     information concerning his failure to be promoted, the agency’s promoting R.G.
     over him, the change of his work duties, his being subjected to disparate
     procedures when making work-related requests, and his being forced to
     participate in an external manpower study of excessive overtime use. Id. The
     appellant made several further submissions. IAF, Tabs 13, 15.
¶6         Thereafter, the administrative judge determined that the issue to be resolved
     was whether the agency retaliated against the appellant by promoting R.G. to a
     position over him because he disclosed to various people on various occasions
     that agency officials were violating AFI 36-2605 by allowing individuals without
     the proper security clearance to conduct certain testing and failing to disclose this
     violation. 3 IAF, Tab 16.
¶7         In her initial decision based on the written record, the administrative judge
     denied the appellant’s request for corrective action. IAF, Tab 21, Initial Decision
     (ID) at 1, 15. After repeating her earlier rulings, 4 ID at 6-9, the administrative

     3
       The administrative judge noted that the appellant had earlier indicated that he was not,
     in fact, claiming that he was denied a promotion in retaliation for protected
     whistleblowing. The administrative judge confirmed her earlier ruling concerning the
     issues barred by res judicata, and she found that, although the appellant raised before
     OSC issues regarding the change of his work duties, his being subjected to disparate
     procedures when making work-related requests, and his being forced to participate in an
     external manpower study on excessive overtime use, he failed to show that he provided
     OSC with a sufficient basis to pursue an investigation which might lead to corrective
     action regarding those claims and that therefore the Board lacked jurisdiction over
     them. IAF, Tab 16.
     4
       The administrative judge acknowledged that the basis for the denial of corrective
     action in the appellant’s earlier IRA appeal, that his disclosures were made in the
     normal performance of his duties and were therefore not protected, was an
     interpretation of the Whistleblower Protection Act which has since been abrogated by
     the Whistleblower Protection Enhancement Act. See Day v. Department of Homeland
     Security, 119 M.S.P.R. 589, ¶ 18 (2013). The administrative judge found, however, that
                                                                                            5

     judge found that the appellant did establish the Board’s jurisdiction over his
     claim that R.G. was given a promotion over him in retaliation for his
     whistleblowing. The administrative judge found that the appellant’s disclosure
     regarding the agency’s violation of AFI 36-2605 was protected and that it was a
     contributing factor in the agency’s promoting R.G. over him because agency
     officials were aware of the appellant’s disclosure before the agency entered into a
     settlement agreement with R.G., which had the effect of making her the
     appellant’s supervisor. ID at 9-10. The administrative judge found, however,
     that the agency showed by clear and convincing evidence that it would have
     placed R.G. in that position, even absent the appellant’s protected disclosure. ID
     at 10-15.
¶8         The appellant has filed a petition for review, Petition for Review (PFR)
     File, Tab 1, the agency has filed a response, PFR File, Tab 5, and the appellant
     has submitted a reply thereto. 5 PFR File, Tab 7.
¶9         An employee or a former employee like the appellant may seek corrective
     action under the Whistleblower Protection Act concerning any “personnel action”
     taken or proposed to be taken against him as a result of a prohibited personnel
     practice described in 5 U.S.C. § 2302(b)(8).          5 U.S.C. § 1221(a); Mattil v.
     Department of State, 118 M.S.P.R. 662, ¶ 14 (2012). In an IRA appeal, after
     establishing the Board’s jurisdiction, the appellant must then establish a prima


     the res judicata consequences of the earlier initial, and now final, decision are
     unaffected by the subsequent change in the law. ID at 7 n.1; see Federated Department
     Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981).
     5
       With his reply, the appellant has submitted evidence which he asks the Board to
     consider. PFR File, Tab 7. A copy of the appellant’s residential lease is not material to
     the dispositive issues in his appeal. See Russo v. Veterans Administration, 3 M.S.P.R.
     345, 349 (1980). A copy of a February 3, 2011 letter from the appellant to Senator
     Hutchison is part of the record below, IAF, Tab 10 at 6, and therefore is not new
     evidence, see Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980). And, a
     copy of the agency’s April 4, 2011 reply to that letter is also not new evidence because
     the appellant has not shown that it was unavailable before the record was closed despite
     his due diligence. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980).
                                                                                       6

      facie case of whistleblower retaliation by proving by preponderant evidence that
      he made a protected disclosure that was a contributing factor in a personnel action
      taken against him. Mattil, 118 M.S.P.R. 662, ¶ 11.
¶10         As noted, the administrative judge found that the appellant made a protected
      disclosure regarding AFI 36-2605 and that the disclosure was a contributing
      factor in the agency’s promoting R.G. into a position supervising him.          ID
      at 9-10. On review, the appellant argues that the administrative judge failed to
      consider considerable evidence he submitted showing that the agency did not
      comply with AFI 36-2605 and that various agency officials falsely stated in their
      affidavits that they did not violate any security regulations and/or were unaware
      of any violations. PFR File, Tab 1 at 1-3. In assessing whether disclosures are
      protected, however, an appellant is not required to prove that the alleged
      misconduct actually occurred. The test for protected status is not the truth of the
      matter disclosed but whether it was reasonable believed. Shannon v. Department
      of Veterans Affairs, 121 M.S.P.R. 221, ¶ 28 (2014); see Special Counsel v.
      Spears, 75 M.S.P.R. 639, 654 (1997). In finding that the appellant’s disclosure
      was protected, the administrative judge necessarily found that a disinterested
      observer with knowledge of the essential facts known to and readily ascertainable
      by the appellant could reasonably conclude that, by allowing individuals without
      the proper security clearance to conduct certain testing, the agency violated AFI
      36-2605 and that this evidenced a violation of law, rule, or regulation.       See
      Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, ¶ 27 (2013).           The
      appellant was not required to prove, and the administrative judge was not
      required to find, an actual violation.
¶11         The administrative judge then addressed whether the agency proved by clear
      and convincing evidence that it would have promoted R.G. to a position over the
      appellant, even absent his protected disclosures.     ID at 10-15; see Shibuya,
      119 M.S.P.R. 537, ¶ 32. In this regard, she first considered whether the agency
      had a legitimate reason for its action. She found that, in 2010, R.G. successfully
                                                                                        7

      challenged the agency’s action reducing her in grade by means of reduction in
      force, that the Board found that she was entitled to bump into the appellant’s
      position, IAF, Tab 19, Agency Exhibit (Ex.) 5 (R.G. v. Department of the Air
      Force, MSPB Docket No. DA-0351-11-0033-I-1, Initial Decision (Feb. 17,
      2011)), and that the agency thereafter settled her compliance appeal by placing
      her in the vacant position of Force Development Flight Chief, GS-12, IAF,
      Tab 19, Agency Ex. 4, a position to which the appellant, although a GS-13,
      reported, IAF, Tab 19, Agency Ex. 3. ID at 10-14. The administrative judge
      relied on the sworn declaration of Lieutenant Colonel E.B., Squadron
      Commander, who signed the settlement agreement in R.G.’s case on behalf of the
      agency, in which he stated that his decision to agree to her placement to avoid
      any further liability or judgments against the agency was based on the advice of
      his servicing legal and civilian personnel office. IAF, Tab 19, Agency Ex. 2.
      E.B. stated, moreover, that he did not consider the impact R.G.’s placement
      would have on the appellant or his disclosure regarding AFI 36-2605. Id. Further
      finding that, according to an organizational chart, the prior Flight Chief was also
      a GS-12 and also the appellant’s supervisor, and notwithstanding his claim that
      the agency’s action was improper, the administrative judge concluded that the
      agency showed by clear and convincing evidence that it had legitimate reasons to
      enter into the settlement agreement with R.G. making her a GS-12 Flight Chief.
      ID at 12-14.
¶12        The administrative judge next considered whether agency officials involved
      in the decision were motivated to retaliate against the appellant. She considered
      E.B.’s sworn declaration that he did not consider the appellant’s disclosures
      regarding AFI 36-2605 when he entered into the agreement resolving R.G.’s
      appeal because that matter was addressed prior to his taking over the Command
      and resolved soon thereafter.   ID at 13; IAF, Tab 19, Agency Ex. 2. She found
      that a specific email from E.B. did not show a motive to retaliate, but rather that,
      on its face, it showed only E.B.’s acknowledgement of the investigation into the
                                                                                            8

      testing issue and his assertion that he and his Command would “stand by to
      support whatever the investigation needs.” See ID at 14; IAF, Tab 20 at 9. The
      appellant argues on review that E.B. lied in his declaration because the
      investigation took place after he became Commander. PFR File, Tab 1 at 5. The
      appellant also claims that the administrative judge failed to consider an affidavit
      he submitted from a coworker, which, he alleges, shows clear evidence of
      retaliation. Id. In the affidavit, J.J., Guidance Counselor, states that the appellant
      resigned his position because agency officials violated Program Action Directive
      07-11, which governs the authority and responsibility of work sections and
      personnel as directed by the agency. IAF, Tab 10 at 50-51. J.J. states that the
      appellant notified various officials of the violations but that he was undermined
      in his efforts. Id. Beyond his own statement, the appellant has failed to show
      how either E.B.’s declaration and email, or J.J.’s affidavit, evidences retaliation
      against him for his disclosure regarding AFI 36-2605. The administrative judge’s
      failure to mention all of the evidence of record does not mean that she did not
      consider it in reaching her decision. See Marques v. Department of Health &
      Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir.
      1985) (Table). In any event, the appellant has not shown that the administrative
      judge’s failure to consider J.J.’s affidavit was prejudicial to his rights.          See
      Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984).
¶13         Finally, the administrative judge found that neither party submitted any
      evidence that the agency took similar actions against any other employees. ID
      at 14. The appellant has not challenged this statement and we find no basis to
      disturb it.
¶14         Having   considered    all   the   pertinent   evidence   in   the   record,   the
      administrative judge concluded that the agency showed by clear and convincing
      evidence that it would have placed R.G. in the position it did, even if the
      appellant had not engaged in whistleblowing.          ID at 14-15; see Whitmore v.
      Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir.             2012); Carr v. Social
                                                                                     9

Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). Based on the
appellant’s arguments on review, we discern no reason to reweigh the evidence or
substitute our assessment of the record for that of the administrative judge. 6 See
Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997).

                    NOTICE TO THE APPELLANT
              REGARDING YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit.
      The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
      If you want to request review of the Board’s decision concerning your
claims   of   prohibited   personnel   practices   under   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 review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the


6
  The appellant argues on review that the agency retaliated against him by not changing
his supervisors in July 2010, November 2010, and June 2011. PFR File, Tab 1 at 7.
This alleged personnel action was not included among the issues to be adjudicated in
this appeal as set forth in the administrative judge’s August 15, 2013 summary of her
rulings during the close of the record conference. IAF, Tab 16. In that summary, the
administrative judge advised the parties that any objections to her summary must be
received by August 27, 2013. Id. The appellant responded but did not raise an issue
regarding the agency’s alleged failure to change his supervisors. IAF, Tab 18. His
failure to object to the administrative judge’s ruling below precludes his doing so on
petition for review. See Tarpley v. U.S. Postal Service, 37 M.S.P.R. 579, 581 (1988).
                                                                                   10

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. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both.    Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
        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 an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for a list of attorneys who have expressed
interest in providing pro bono representation for Merit Systems Protection Board
appellants before the Federal Circuit.       The Merit Systems Protection Board
                                                                           11

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.
