                             UNITED STATES OF AMERICA
                          MERIT SYSTEMS PROTECTION BOARD
                                      2016 MSPB 3

                             Docket No. DC-1221-15-0102-W-1

                                Christine Ann Runstrom,
                                       Appellant,
                                            v.
                             Department of Veterans Affairs,
                                         Agency.
                                     January 14, 2016

           Bobby Devadoss, Esquire, Dallas, Texas, for the appellant.

           Christina Knott and Katherine Seto, Washington, D.C., for the agency.

                                        BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member



                                 OPINION AND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     denied her request for corrective action in her individual right of action (IRA)
     appeal. For the reasons discussed below, we GRANT the appellant’s petition for
     review, AFFIRM the initial decision IN PART, REVERSE the initial decision IN
     PART, and REMAND the appeal for a determination of the appropriate
     corrective action.

                                     BACKGROUND
¶2         The appellant is a Learning Resource Officer in Strategic Learning
     Services (SLS), a division of the Office of Employee Development and Training
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     (ED&T), within the agency’s Veterans Benefits Administration (VBA). Initial
     Appeal File (IAF), Tab 7 at 5.      ED&T also includes a division of Technical
     Training and Evaluation (TT&E).       IAF, Tab 17 at 15.     During the events that
     remain at issue in this appeal, the appellant’s supervisor was the Assistant
     Director of SLS, who in turn reported to the Deputy Director of ED&T. Id. at 14.
¶3          During fiscal year (FY) 2012 and FY 2013, the appellant served as Project
     Manager for SLS’s development of “competency models” for various VBA
     occupations. IAF, Tab 6 at 25, Tab 7 at 9. This project was a major focus of
     SLS.   IAF, Tab 6 at 25, Tab 7 at 9.     However, TT&E was responsible for the
     agency’s related competency-based training program.          IAF, Tab 19 at 51-52.
     Among other tasks, TT&E was assigned to develop “curriculum maps,” and to
     “plan, budget, and manage the execution of contracts to support training and
     training products.” Id. at 52.
¶4          In late June or early July 2013, the appellant’s supervisor informed her that
     ED&T management was considering reassigning the SLS competency project to
     TT&E. IAF, Tab 6 at 17. However, at some point later that month, a decision
     was made to set up a “matrix relationship,” 1 including members of both SLS and
     TT&E, intended to merge all competency efforts into a single program. IAF,
     Tab 19 at 51.    The appellant avers, and the agency does not dispute, that on
     July 16, 2013, following a meeting with her supervisor and the Director of TT&E,
     she was designated Program Manager for the joint competencies project. IAF,
     Tab 4 at 5, Tab 12 at 12, 41; see IAF, Tab 17 at 15. She subsequently received a
     blanket travel authorization for her work on the joint project, which entailed
     regular visits to the TT&E office in Orlando, Florida. IAF, Tab 12 at 65-66.
¶5          On or about October 24, 2013, the appellant disclosed to her supervisor
     what she believed to be violations of Federal Acquisition Regulations (FAR) in

     1
       The matrix relationship was also referred to as a “matrix organization.” IAF, Tab 19
     at 51.
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     the assignment of contract work for the project of “mapping” competencies. IAF,
     Tab 19 at 35-39, 52.      The focus of the disclosures was her belief that TT&E
     employee S.R., who was acting as the Contracting Officer’s Representative
     (COR), was assigning work improperly on the project to contractor Camber, when
     another contractor, General Dynamics Information Technology (GDIT), had won
     the bid for the contract. 2   IAF, Tab 12 at 7-9, 17-22, 43-44, Tab 19 at 30-33,
     35-39, 60-62.
¶6         Also on October 24, 2013, or shortly before, the Director of TT&E met
     with VBA acquisitions personnel to discuss the concerns the appellant had raised
     regarding the Camber/GDIT issue. IAF, Tab 12 at 20. In an email memorializing
     the meeting, the Director of TT&E was advised that Camber’s involvement
     was not improper, as it was sharing deliverables completed on a previously
     awarded contract, but that “we must be certain that all contractors work and
     charge their time to their awarded contract, with those tasks/deliverables, so that
     the invoices reflect the correct labor hours worked for that particular contract.”
     Id. (emphasis removed). The email noted that it was the COR’s responsibility “to
     ensure that all work is completed and charged according to the terms and
     conditions of that particular contract.”     Id.   Later that day, the appellant’s
     supervisor canceled a business trip that the appellant had previously planned.
     IAF, Tab 19 at 50-51. 3
¶7         On October 29, 2013, the appellant’s supervisor and the Director of TT&E
     discussed the competencies project, and the appellant’s supervisor called the
     appellant to share the outcome of their discussion. Id. at 51. That afternoon, the


     2
      The appellant contends that another employee was the officially designated COR, IAF,
     Tab 12 at 8, but that issue is not material to the outcome of this appeal.
     3
      The agency asserts that the cancellation was the result of the furlough of ED&T
     employees from October 8 to 17, 2013, and that no travel was approved for any ED&T
     employee that month. IAF, Tab 17 at 17.
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      appellant sent an email to her supervisor with the subject line “Retaliation.” Id.
      at 52-53. The appellant stated that the Director of TT&E had “insisted” that her
      supervisor remove her as Program Manager, which she took as retaliation for her
      disclosures of alleged contracting improprieties.     Id. at 52.   She expressed
      disappointment that her supervisor had failed to protect her from the Director of
      TT&E and what she described as his “abuse,” and had now “acquiesced” in his
      request to remove her as Program Manager of the competencies project. Id. at 53.
¶8           The following day, the appellant’s supervisor sent the appellant an email
      memorializing his discussion with the Director of TT&E.         Id. at 51-52.   He
      explained that, “Our matrix organization is not working and should be
      discontinued.     Effective immediately, we will return to the working
      relationship in place for our two organizations in July.” Id. at 51 (emphasis in
      original). The appellant’s supervisor explained that SLS would continue to be
      responsible for duties relating to competency models, while TT&E would
      continue to be responsible for “development of a competency based training
      system” and other related duties. Id. at 51-52. The appellant contends that the
      discontinuation of the “matrix relationship” relieved her of her duties as Program
      Manager for the joint competencies project, which she had been assigned on
      July 16, 2013. Id. at 5.
¶9           On November 20, 2013, the appellant’s supervisor issued the appellant a
      performance appraisal for FY 2013, rating her as “Exceptional” in all three
      critical   elements        (Program   Management,    Customer      Service,     and
      Communications), but “Fully Successful” on the two noncritical elements (Team
      Performance and Socio-Economic Goal). IAF, Tab 6 at 20-28. As a result, the
      appellant received an overall rating of “Excellent.” Id. at 24. This was a lower
      rating than her “Outstanding” rating for FY 2012, when she was rated
      “Exceptional” on all five elements. IAF, Tab 7 at 9-14.
¶10          Subsequently, the appellant filed a complaint with the Office of Special
      Counsel (OSC), in which she alleged, inter alia, that the agency had relieved her
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      of her duties as “Program Manager for Competencies” and lowered her
      performance appraisal in retaliation for her disclosures concerning the
      Camber/GDIT issue.       IAF, Tab 1 at 4.     Upon receiving notice that OSC had
      terminated its investigation, she timely filed this IRA appeal. Id. at 1-3. Based
      on the parties’ written submissions, the administrative judge found that the
      appellant established jurisdiction by making nonfrivolous allegations that she
      made protected disclosures concerning the Camber/GDIT issue that were a
      contributing factor in the removal of her Program Manager duties and her
      lowered performance appraisal. 4 IAF, Tab 15 at 1-5.
¶11         The appellant withdrew her request for a hearing, and the administrative
      judge issued a decision based on the written record. Id. at 6; IAF, Tab 20, Initial
      Decision (ID) at 1. In her decision, the administrative judge implicitly found that
      the appellant’s disclosures concerning the Camber/GDIT issue were protected
      under 5 U.S.C. § 2303(b)(8). 5 ID at 5-6. She further found that these disclosures

      4
        The appellant’s disclosures concerning the Camber/GDIT issue were labeled as
      disclosures (2) and (3), although the distinction between the two is not entirely clear.
      IAF, Tab 15 at 3-4. In her response to the show cause order on jurisdiction, the
      appellant described an additional disclosure, which the administrative judge labeled as
      disclosure (1), concerning the agency’s alleged failure to consider awarding the contract
      work to small businesses, as required by FAR 19.2 and 19.5. IAF, Tab 12 at 4-5,
      Tab 15 at 2. It is unclear whether the appellant mentioned that disclosure in her
      correspondence with OSC, or first raised it before the Board. See Clarke v. Department
      of Veterans Affairs, 121 M.S.P.R. 154, ¶ 12 (2014) (finding that, to satisfy the
      exhaustion requirement, an appellant must inform OSC of the precise ground of his
      whistleblower claims), aff’d, No. 2014-3103, 2015 WL 8538501 (Fed. Cir. Dec. 11,
      2015). In any event, the administrative judge found that the appellant failed to make a
      nonfrivolous allegation that disclosure (1) was protected, IAF, Tab 15 at 2-3, and the
      appellant does not contest that finding.
      5
        This finding was not clearly stated. The administrative judge initially found that
      disclosure (2) evidenced what the appellant reasonably believed (albeit incorrectly) to
      be a violation of law, rule, or regulation. ID at 5. As the appellant observes, this
      implies that the disclosure was protected under 5 U.S.C. § 2302(b)(8). Petition for
      Review File, Tab 1 at 7-8. However, the administrative judge did not explicitly state
      that conclusion, but proceeded to find that the appellant failed to nonfrivolously allege
      that disclosure (2) evidenced gross mismanagement, gross waste of funds, or an abuse
                                                                                               6

      were a contributing factor in both the appellant’s change of duties and her
      lowered performance appraisal. 6 ID at 8-11. However, she found that the agency
      established by clear and convincing evidence that it would have taken the same
      actions in the absence of her whistleblowing activity. ID at 11-17. Accordingly,
      the administrative judge denied the appellant’s request for corrective action. ID
      at 17. The appellant’s petition for review followed. Petition for Review (PFR)
      File, Tab 1.

                                            ANALYSIS
¶12          In reviewing the merits of an IRA appeal in which the appellant alleges
      retaliation for protected disclosures, the Board first considers whether the
      appellant has established by a preponderance of the evidence that she made
      protected disclosures under 5 U.S.C. § 2302(b)(8) that were a contributing factor
      in an agency’s personnel action.             Aquino v. Department of Homeland
      Security, 121 M.S.P.R. 35, ¶ 10 (2014). Where, as here, the appellant is able to
      offer such proof, the Board must order corrective action unless the agency can




      of authority. ID at 6. Next, in discussing disclosure (3), the administrative judge
      did not state whether the appellant had established by preponderant evidence that the
      disclosure was protected, but instead reiterated her earlier finding that the appellant had
      made a nonfrivolous allegation to that effect. Id. Nonetheless, the administrative judge
      went on to find that the appellant made protected “disclosures,” that those “disclosures”
      were a contributing factor in the personnel actions at issue, and that the agency had
      shown by clear and convincing evidence that it would have taken the same actions
      absent her “disclosures.” ID at 11-17. Thus, the administrative judge appears to have
      concluded that both disclosures (2) and (3) were in fact protected. We agree with
      this finding.
      6
        In her pleadings below, the appellant provided correspondence with OSC in which she
      alleged that management took an additional retaliatory action by withholding work
      assignments beginning in December 2013.          IAF, Tab 19 at 15-21, 40-41.     The
      administrative judge found that the appellant failed to show by preponderant evidence
      that the agency withheld work from her, ID at 7-8, and the appellant does not contest
      that finding.
                                                                                        7

      establish by clear and convincing evidence that it would have taken the same
      personnel action in the absence of the disclosure. Id.; see 5 U.S.C. § 1221(e).
¶13         Clear and convincing evidence is that measure or degree of proof that
      produces in the mind of the trier of fact a firm belief as to the allegations sought
      to be established. 5 C.F.R. § 1209.4(e). In determining whether an agency has
      shown 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). “Evidence 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).
¶14         We agree with the administrative judge that the agency met its burden
      concerning the appellant’s lowered performance appraisal. As noted above, the
      appellant’s overall rating of “Excellent” in FY 2013 was the result of receiving a
      “Fully Successful” rating in the two noncritical elements, Team Performance and
      Socio-Economic Goal, when she had received an “Exceptional” rating in those
      same elements the previous year. IAF, Tab 6 at 23-24, Tab 7 at 8, 14. While the
      record does not establish clearly what achievements were required to obtain an
      “Exceptional” rating in Team Performance or Socio-Economic Goal, the
      appellant’s FY 2013 appraisal, which was based on her own self-assessment, lists
      markedly fewer achievements under those elements than are listed in her FY 2012
      appraisal. Compare IAF, Tab 6 at 28, with IAF, Tab 7 at 12-13. Further, the
      description of the activities performed in FY 2012 are more detailed and reflect a
      greater level of involvement in the work performed. For example, in FY 2012,
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      the appellant reviewed employee survey results “as a source of information about
      compassion fatigue and how it plays out in the workforce,” participated in a
      recruitment fair for veterans by greeting veterans and identifying potential
      candidates for employment, and conducted market research to identify three
      possible locations for a training conference.     PFR File, Tab 7 at 12-13.      By
      contrast, in FY 2013, she “drafted reports” and performed other duties while
      serving on a subcommittee, “assisted with the planning and execution” of an
      employee appreciation event, and “[c]onducted all meetings when possible within
      the local DC area.” IAF, Tab 6 at 28. Hence, there is considerable evidence to
      support the agency’s action.
¶15         Furthermore, because the appellant’s disclosures did not implicate her
      supervisor (the rating official) or other SLS employees, we find weak evidence of
      a retaliatory motive on his part. Concerning the treatment of similarly situated
      employees who were not whistleblowers, the appellant notes that the agency
      did not provide evidence showing that other employees’ ratings were based on
      self-assessments. PFR File, Tab 1 at 10. However, assuming arguendo that the
      appellant was singled out for self-assessment, providing her greater control over
      her performance appraisal would have been more, not less, favorable treatment
      and thus would not support a finding of retaliation. Considering the record as a
      whole, we affirm the administrative judge’s conclusion that the agency
      established by clear and convincing evidence that it would have taken the same
      action absent the appellant’s whistleblowing.
¶16         We reach a different conclusion regarding the other personnel action at
      issue, i.e., the agency’s decision to relieve the appellant of her duties as Program
      Manager for the competencies matrix relationship. In finding that the agency met
      its burden of proof as to that action, the administrative judge relied on evidence
      that, as of July 1, 2013, management was considering reassigning the SLS
      competency model project to TT&E. ID at 14; see IAF, Tab 6 at 17. Based on
      that evidence, the administrative judge concluded that the agency had a “plan” to
                                                                                          9

      reassign that project, which “was well underway” before the appellant made her
      disclosures. ID at 14. However, the personnel action at issue is the appellant’s
      removal as Program Manager of the matrix relationship, a role she was assigned
      in mid-July 2013. IAF, Tab 4 at 5, Tab 12 at 12. The October 30, 2013 email
      from the appellant’s supervisor indicates that the “matrix relationship” between
      SLS and TT&E was being terminated pursuant to his discussion with the Director
      of TT&E the previous day, after the appellant had already made her disclosures
      concerning the Camber/GDIT issue.        IAF, Tab 19 at 51-52.      Thus, the record
      does not support the administrative judge’s finding that the contested action
      already was underway when the appellant made her disclosures. Moreover, the
      only evidence explaining the agency’s decision is the vague statement by the
      appellant’s supervisor that the matrix relationship “is not working and should be
      discontinued.” Id. at 51. The agency failed to provide declarations or sworn
      statements from either the appellant’s supervisor or the Director of TT&E, who
      were the individuals that made the decision to terminate the matrix relationship.
¶17         There is little evidence of retaliatory motive on the part of the appellant’s
      supervisor, and the Director of ED&T was not informed of the appellant’s
      disclosures until November 1, 2013, after the decision to end the joint project
      between SLS and TT&E already had been made.            Id. at 35.   The Director of
      TT&E, as the supervisor of S.R., the employee the appellant accused of
      wrongdoing, potentially had a motive to retaliate against the appellant.         See
      Ayers v. Department of the Army, 123 M.S.P.R. 11, ¶ 29 (2015) (finding that
      agency officials had a possible motive to retaliate based on the appellant’s
      disclosure that an individual within their chain of command was harassing her,
      which reflected on the officials’ capacities as managers and employees); Chavez
      v. Department of Veterans Affairs, 120 M.S.P.R. 285, ¶¶ 32-33 (2013) (finding
      that disclosures of subordinate employees’ wrongdoing created a motive to
      retaliate on the part of their first- and second-level supervisors). However, in this
      case, the documentary evidence, including S.R.’s declaration sworn under penalty
                                                                                        10

      of perjury, reveals that agency officials looked into the appellant’s allegations
      and, within a few days of the appellant’s disclosure, found no wrongdoing by
      S.R. IAF, Tab 12 at 20-27, Tab 19 at 30-38, 60-62. Therefore, we find that the
      appellant’s disclosure did not reflect negatively on the Director of TT&E.
      Further, there is no evidence that either S.R. or the Director of TT&E suffered
      any ramifications as a result of the appellant’s disclosure.
¶18         Finally, the record includes no evidence that there were any employees
      similarly situated to the appellant, regardless of their whistleblower status. The
      appellant was the sole Program Manager for the matrix relationship, which was
      discontinued. Thus, the third Carr factor is not a significant factor for analysis in
      this case.
¶19         Ultimately, however, because the agency failed to present evidence to
      explain its reasons for discontinuing the matrix relationship, which resulted in the
      removal of the appellant’s duties as Program Manager of that project, we find that
      it has failed to prove by clear and convincing evidence that it would have
      removed those duties in the absence of her whistleblowing.             Because the
      appellant has established by preponderant evidence that her protected disclosures
      were a contributing factor in the removal of her Program Manager duties, and the
      agency has not established by clear and convincing evidence that it would have
      taken that action in the absence of her disclosures, the Board is required to order
      appropriate corrective action. 5 U.S.C. § 1221(e). In addition to attorney fees
      and consequential and compensatory damages, corrective action may include
      status quo ante relief including: cancellation of the retaliatory personnel action;
      the appellant’s reinstatement to her former position or to another substantially
      equivalent, as appropriate; back pay; interest on back pay; and other employment
      benefits that she would have received had the action not occurred.          5 U.S.C.
      § 1221(g)(1); Schnell v. Department of the Army, 114 M.S.P.R. 83, ¶ 25 (2010).
¶20         It is unclear from the existing record what, if any, relief may be available
      in this case. For example, it appears that the matrix relationship that gave rise to
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      the appellant’s Program Manager duties no longer exists.         IAF, Tab 19 at 51.
      Therefore, there is a question as to what duties, if any, to restore to the appellant
      to ensure that she receives the career opportunities she claims she lost when the
      relationship    ended.    Id.   at 53-54;   see   Ingram   v.   Department   of   the
      Army, 116 M.S.P.R. 525, ¶¶ 14, 19 (2011) (ordering an agency to restore an
      appellant’s team assignment after he proved that his transfer off the team was
      retaliatory).   In addition, it appears that the parties have not yet presented
      evidence regarding compensatory and consequential damages. Accordingly, the
      record is not developed on the damages issues, and we remand the case to the
      regional office for a determination of an appropriate corrective action.

                                            ORDER
¶21          The case is remanded to the regional office for further adjudication
      consistent with this Opinion and Order.



      FOR THE BOARD:


      ______________________________
      William D. Spencer
      Clerk of the Board
      Washington, D.C.
