                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JANEL N. SMITH,                                 DOCKET NUMBER
                    Appellant,                       CH-1221-13-0304-W-2

                  v.

     DEPARTMENT OF JUSTICE,                          DATE: September 9, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Janel N. Smith, Fairview Heights, Illinois, pro se.

           Katherine Meng and Lance Simon, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review, and the agency has filed a
     cross petition for review of the initial decision, which denied the appellant’s
     request for corrective action in this individual right of action (IRA) appeal.
     Generally, we grant petitions such as these only when:           the initial decision
     contains erroneous findings of material fact; the initial decision is based on an

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     erroneous interpretation of statute or regulation or the erroneous application of
     the law to the facts of the case; the administrative 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, we conclude that
     neither party has established any basis under section 1201.115 for granting the
     petition or cross petition for review. Therefore, we DENY the petition for review
     and the cross petition for review. Except as expressly MODIFIED by this Final
     Order, which finds that the appellant has proven that her disclosure was a
     contributing factor in a personnel action, we AFFIRM the initial decision.

                                      BACKGROUND
¶2        The appellant, an Industry Operations Analyst in the agency’s Bureau of
     Alcohol, Tobacco, Firearms, and Explosives (ATF), filed this IRA appeal alleging
     that, in reprisal for a September 21, 2010 complaint she filed with the agency’s
     Office of Inspector General (OIG) and her contacting the Equal Employment
     Opportunity (EEO) Office, the agency included negative comments under the
     Attitude critical element on her October 18, 2010 performance appraisal, although
     both her overall rating and her rating in the Attitude critical element were Fully
     Successful. Initial Appeal File (IAF), Tab 1 at 1, 3, 5, 8; Appeal File (I-2 AF),
     Tab 4 at 44, 48-49, Tab 8 at 9-10, Tab 33 at 1-2. 2 The appellant alleged that she
     disclosed on September 21, 2010, that her immediate supervisor, L.S., added
     extra inspection hours on assignments after the assignments had been completed,

     2
       It appears that the appellant’s date of first contact with the EEO Office was on
     September 22, 2010. I-2 AF, Tab 4 at 22. She received notice of a final interview with
     the EEO counselor in December 2010, and filed her complaint of discrimination on
     January 7, 2011, after the agency took the personnel action at issue in this case. Id.
                                                                                        3

     thereby manipulating inspection hours in a database that the agency utilized in
     providing information to Congress. I-2 AF, Tab 8 at 5.
¶3         After finding that the Board had jurisdiction over the appeal and holding a
     hearing, I-2 AF, Tabs 15, 37, the administrative judge denied the request for
     corrective action, I-2 AF, Tab 40, Initial Decision (ID) at 1-2. The administrative
     judge found that the appellant proved by preponderant evidence that she made a
     protected disclosure. ID at 2, 4-7. The administrative judge also found, however,
     that the appellant did not prove by preponderant evidence that her disclosure was
     a contributing factor in a personnel action.       ID at 7-9.   In this regard, the
     administrative judge held that L.S. was not aware, before she completed the
     appellant’s performance appraisal, that the disclosure involved allegations of
     fraudulent or inflated data or statistics. ID at 8. Instead, the administrative judge
     found that the appellant had notified L.S. and other management officials only
     that her OIG complaint and EEO contact involved an assertion of “unprofessional
     internal disparity of treatment.” ID at 7-8. The administrative judge also found
     that the appellant did not show that someone with actual or constructive
     knowledge of the disclosure influenced L.S. to include the comments at issue in
     the appraisal. ID at 8‑9.
¶4         The administrative judge further held that, even if the appellant had shown
     that her disclosure was a contributing factor in the agency’s decision to provide
     her with a less than favorable performance appraisal, the agency showed by clear
     and convincing evidence that it would have taken the same personnel action in the
     absence of her protected disclosure. ID at 9. In this regard, the administrative
     judge found that the agency produced compelling evidence to support the written
     comments expressed by L.S. in the Attitude critical element of the appellant’s
     performance appraisal, there was no evidence of a retaliatory motive on the part
     of L.S., and L.S. included similar comments in the performance appraisal of a
     nonwhistleblower who was similarly situated to the appellant. ID at 10‑15.
                                                                                      4

                      DISCUSSION OF ARGUMENTS ON REVIEW
     The appellant’s petition for review is denied.
¶5        The appellant asserts on review that L.S. had constructive knowledge of the
     content of the September 21, 2010 disclosure because the appellant previously
     had disclosed the inflation of inspection hours to L.S. in 2009 and in April 2010,
     and L.S. had responded to those disclosures by telling the appellant in 2009 to
     “ignore it” and by issuing an April 8, 2010 email to the office investigators
     regarding the matter. Petition for Review (PFR) File, Tab 1 at 5-6. The appellant
     contends that, based on the 2009 and April 2010 disclosures to L.S., L.S. should
     have reasonably suspected that the appellant’s September 21, 2010 disclosure also
     related to the inflation of inspection hours.    Id. at 13.   The appellant further
     asserts that she disclosed harassment in the workplace, that L.S. had constructive
     knowledge of an attempt by the appellant to meet with L.S.’s supervisor in
     June 2010, that the appellant and L.S. were the only individuals who could add
     inspection hours into the database after inspections were closed, and that the
     appellant’s 2011 performance appraisal reflects animus by L.S. toward the
     appellant.   Id. at 5, 8.   The appellant contends that all of these events show
     retaliatory animus by L.S. both before and after the appellant’s September 21,
     2010 disclosure. Id.
¶6        In determining whether reprisal for whistleblowing activities occurred, an
     inquiry must be made into whether the appellant made a disclosure protected
     under 5 U.S.C. § 2302(b)(8), the disclosure was a contributing factor in the
     agency’s personnel action, and the agency can prove by clear and convincing
     evidence that it would have taken the same personnel action in the absence of the
     disclosure. Armstrong v. Department of Justice, 107 M.S.P.R. 375, ¶ 15 (2007).
     An employee may demonstrate that a disclosure was a contributing factor in a
     personnel action through circumstantial evidence, such as evidence that the
     official taking the personnel action knew of the disclosure, and that the personnel
     action occurred within a period of time such that a reasonable person could
                                                                                        5

     conclude that the disclosure was a contributing factor in the personnel action.
     Scott v. Department of Justice, 69 M.S.P.R. 211, 238 (1995), aff’d, 99 F.3d 1160
     (Fed. Cir. 1996) (Table). To show that a disclosure was a contributing factor in a
     personnel action, the appellant need only demonstrate that the fact of, or the
     content of, the protected disclosure was one of the factors that tended to affect the
     personnel action in any way.      Marano v. Department of Justice, 2 F.3d 1137,
     1143 (Fed. Cir. 1993). An appellant also can show that a disclosure described
     under 5 U.S.C. § 2302(b)(8) was a contributing factor in a personnel action by
     proving that the official taking the personnel action had constructive knowledge
     of the protected disclosure; an appellant may establish constructive knowledge by
     showing that an individual with actual or constructive knowledge of the
     disclosure influenced the official accused of taking the retaliatory action.
     Marchese v. Department of the Navy, 65 M.S.P.R. 104, 108‑09 (1994).
¶7         Although the appellant appears to assert that L.S. had constructive
     knowledge of the content of the September 21, 2010 disclosure because the
     appellant previously had disclosed to L.S. the inflated inspection hours, the
     appellant has not alleged or shown that an individual with actual or constructive
     knowledge of the content of the September 21, 2010 disclosure influenced L.S.
     Moreover, given that the appellant informed L.S. only that the September 21,
     2010 OIG complaint and EEO contact were “due to unprofessional internal
     disparity of treatment from Management,” I-2 AF, Tab 8 at 42-43, we find that
     the administrative judge correctly concluded, based in part on her finding that the
     testimony of L.S. was credible, that L.S. reasonably believed that the complaints
     related to ongoing issues between the appellant and one of the investigators,
     rather than inflated or fraudulent data. ID at 5 n.2, 8.
¶8         To the extent that the appellant is alleging that she made protected
     disclosures before the September 21, 2010 disclosure that were a contributing
     factor in her October 18, 2010 performance appraisal, that she disclosed
     harassment in the workplace, and that L.S. demonstrated retaliatory animus
                                                                                       6

     against her in her 2011 performance appraisal, the appellant did not raise such
     allegations below, I-2 AF, Tabs 15, 34, nor did she exhaust such allegations with
     the Office of Special Counsel (OSC), IAF, Tab 1 at 8; I-2 AF, Tab 8 at 14. Thus,
     she may not raise such allegations at this time. See Fleming v. Department of the
     Interior, 68 M.S.P.R. 222, 223-24 (1995) (finding that the Board lacked
     jurisdiction over an alleged threatened reassignment because the appellant did not
     raise this action before OSC); Lewis v. Department of the Army, 58 M.S.P.R. 325,
     332 (1993) (finding in an IRA appeal that the Board may review only those
     disclosures of information that the appellant raised before OSC, provided that the
     appellant exhausted OSC proceedings).      The mere fact that the appellant may
     have attempted to meet with L.S.’s supervisor in June 2010 does not demonstrate
     that L.S. had actual or constructive knowledge of the content of the appellant’s
     September 21, 2010 disclosure.
¶9        We nevertheless find that the September 21, 2010 disclosure was a
     contributing factor in the October 18, 2010 performance appraisal.              The
     administrative judge found that, although L.S. was aware that the appellant had
     filed the OIG complaint and contacted the EEO Office, L.S. was not aware that
     these complaints were based on allegations involving inflated statistics. ID at 8.
     Thus, the administrative judge found that, “[a]s these are the allegations
     [regarding inflated statistics] forming the basis of Ms. Smith’s protected
     disclosure, I find [L.S.] did not know of the protected disclosure prior to
     completing Ms. Smith’s appraisal,” and that no reasonable person could conclude
     that the disclosure was a contributing factor in the performance appraisal when
     “knowledge of the disclosure occurred after the personnel action.” Id. As set
     forth above, however, to satisfy the knowledge/timing 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. Marano, 2 F.3d at 1143; Ayers v. Department of the Army, 123 M.S.P.R.
     11, ¶ 25 (2015). Awareness of the fact of an appellant’s disclosure is sufficient to
                                                                                       7

      satisfy the knowledge component of the knowledge/timing test.               Ayers,
      123 M.S.P.R. 11, ¶ 26; see McCarthy v. International Boundary & Water
      Commission, 116 M.S.P.R. 594, ¶ 41 (2011) (explaining that, even though the
      record included no evidence that the acting official knew the details contained
      within the written disclosures, the fact that the appellant told him that he had
      made the disclosures is sufficient to establish the “knowledge” element of the
      knowledge/timing test), aff’d, 497 F. App’x 4 (Fed. Cir. 2012).
¶10         Here, the appellant sent an email on September 22, 2010, to several agency
      officials, including L.S., with the subject line “Complaint” and an indication that
      she had “attached a Memorandum, with pertinent information of a complaint
      filed.”   I-2 AF, Tab 33 at 6.   The attached memorandum, dated September 22,
      2010, and addressed to the “DIO,” or Director of Industry Operations, indicated
      that the appellant had filed a complaint on September 21, 2010, with the OIG
      “due to unprofessional internal disparity of treatment from Management,” that she
      previously had reported “concerns, issues, and incidents” to L.S. as they
      occurred, and that she also had contacted the EEO Office. Id. at 4, 7. As the
      administrative judge found, L.S. testified that she received the email and the
      attached memorandum. ID at 7-8; I-2 AF, Tab 37, Hearing Compact Disc (HCD)
      Track 1003. Thus, L.S. was aware of the fact of the appellant’s September 21,
      2010 disclosure on September 22, 2010, only weeks before she issued the
      October 18, 2010 performance appraisal in question. We therefore find that the
      appellant has proven that her disclosure was a contributing factor in a personnel
      action.     See 5 U.S.C. § 1221(e)(1); McCarthy, 116 M.S.P.R. 594, ¶ 41;
      DeLeonardo v. Equal Employment Opportunity Commission, 103 M.S.P.R. 301,
      ¶ 10 (2006) (finding that the appellant raised a nonfrivolous allegation that her
      disclosure was a contributing factor in a personnel action when the acting official
      knew of the appellant’s disclosure and issued her a Minimally Successful
      performance evaluation approximately 1 month later).
                                                                                             8

¶11         Having found that the appellant proved by preponderant evidence that her
      disclosure was a contributing factor in the performance appraisal, we turn to the
      question of whether the agency proved by clear and convincing evidence that it
      would have taken the same personnel action in the absence of the disclosure. 3
¶12         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).
¶13         As set forth above, the administrative judge, citing to and applying the
      court’s decision in Whitmore, found that the agency produced compelling
      evidence to support the written comments expressed by L.S. in the Attitude
      critical element of the appellant’s performance appraisal, there was no evidence

      3
        The Board may not proceed to the clear and convincing evidence test unless it has first
      found that the appellant made a protected disclosure that was a contributing factor in a
      personnel action. See 5 U.S.C. § 1221(e)(2); Clarke v. Department of Veterans Affairs,
      121 M.S.P.R. 154, ¶ 19 n.10 (2014), aff’d, 623 F. App’x 1016 (Fed. Cir. 2015). Thus,
      the administrative judge should not have addressed the clear and convincing evidence
      test in this case. Nevertheless, having found in this Final Order that the appellant
      established her prima facie case in this IRA appeal, we may now consider the
      administrative judge’s alternative finding that the agency proved by clear and
      convincing evidence that it would have taken the same action in the absence of the
      appellant’s protected disclosure.
                                                                                        9

      of a retaliatory motive on the part of L.S., and L.S. included similar comments in
      the performance appraisal of a nonwhistleblower who was similarly situated to
      the appellant.   ID at 10-15.    The administrative judge noted that the Fully
      Successful rating in the Attitude critical element was the same rating that the
      appellant gave to herself in providing input to L.S. before receiving the appraisal,
      and that the appellant did not contest the Fully Successful rating itself, but
      focused instead on the comments under this critical element, which indicated that
      there were a number of occasions on which L.S. had to intervene in disruptions in
      the workplace between the appellant and a number of Industry Operations
      Investigators (IOIs), that L.S. had stressed to the appellant the importance of
      professionalism and treating other employees with respect, and that this was an
      area that “is being worked on by all.” ID at 2, 10‑11.
¶14        Regarding the strength of the agency’s evidence, the administrative judge
      noted that the appellant’s attendance at an off-site assignment led to at least one
      confrontation with an IOI during the 2010 appraisal period, and that the IOI
      believed the appellant was confrontational and argumentative, while the appellant
      testified that she was simply asking questions during the inspection. ID at 12.
      The administrative judge also found that the appellant did not believe that she
      was respected within the office, which may have contributed to the interpersonal
      conflicts that occurred, and that documentary evidence supported the testimony of
      L.S. regarding the interpersonal conflicts in question.       Id.   Moreover, the
      administrative judge noted that L.S. attempted to obtain preventive training on
      personality conflicts for her staff and assigned two different courses regarding
      such training to them in July 2010. ID at 13. Further, the administrative judge
      found that L.S.’s appraisal comments merely indicated that interpersonal conflicts
      arose throughout 2010 and did not assign blame to the appellant. Id.
¶15        We agree with the administrative judge that the evidence in support of the
      appellant’s 2010 performance appraisal is strong.         L.S. provided extensive
      testimony, which the administrative judge found credible, regarding the
                                                                                              10

      interpersonal conflicts at issue. I-2 AF, Tab 37, HCD Track 1002-1003; ID at 5
      n.2, 12-13. The record also includes an April 27, 2010 email that L.S. sent to
      herself noting some of the conflicts the appellant was having with her coworkers;
      a June 14, 2010 email the appellant sent to L.S. addressing issues she was having
      with IOIs; a June 11, 2010 email L.S. sent to the appellant and an IOI (F.B.)
      addressing their recent lack of proper communication and stating that L.S.
      “will not allow your personal differences to fester and infect the entire office”;
      and emails from June and July 2010 documenting the efforts L.S. made to obtain
      training, including a course entitled “Building a Respectful Workforce,” for her
      employees. I-2 AF, Tab 32, Agency Exhibits 4, 6, 11. L.S. notes in one of these
      emails that she is “having some difficulties with an employee and would like to
      present this training in my next roll call,” and that “this employee is having
      difficulties dealing with other employees.” Id., Agency Exhibit 11. L.S. testified
      that the “employee” she referred to in the email was the appellant.                I-2 AF,
      Tab 37, HCD Track 1002.           All of these emails were written by L.S. several
      months before the appellant’s September 21, 2010 disclosure.
¶16         The appellant asserts that the agency’s evidence supporting its contention
      that she was confrontational or argumentative during an inspection is unfounded
      and based on hearsay. PFR File, Tab 1 at 16, 20. The appellant’s performance
      appraisal,    however,   did not    indicate   that   she    was    “confrontational”    or
      “argumentative”; rather, L.S. merely indicated that, as examples of occasions on
      which L.S. had to intervene in “disruptions” in the workplace, the appellant “had
      conflicts with the Investigators that you accompanied on inspections and on
      instances involving telephone inquiries.”        I-2 AF, Tab 8 at 64.      In any event,
      relevant     hearsay   evidence    is   admissible    in    Board   proceedings.        See
      Crawford ‑ Graham v. Department of Veterans Affairs, 99 M.S.P.R. 389, ¶ 20
      (2005).
¶17         The appellant also contends that the comments provided by L.S. in the
      appellant’s mid-year progress review in April 2010 do not indicate that she
                                                                                     11

      created any conflict.     PFR File, Tab 1.     The appellant’s 2010 performance
      appraisal did not, however, indicate that she created the conflict. Rather, as the
      administrative judge found, it merely indicated that interpersonal conflicts arose
      throughout 2010 and did not assign blame to the appellant.         I‑2 AF, Tab 8
      at 63‑64; ID at 13.     Moreover, the appellant’s mid‑year progress review does
      reflect some concern regarding the appellant’s performance. L.S. indicated that:
            [a]s discussed, you are performing at a Fully Successful rate. You
            have taken on your responsibilities with a professional attitude. You
            have been assigned to an Area Office with complex personalities that
            are at times difficult to understand. As I stated, be a part of the
            solution not the problem, stay on your individual path and you will
            be a success with ATF.
      I-2 AF, Tab 8 at 66.
¶18        The appellant asserts that retaliatory animus may be inferred from a
      conversation she had with L.S. in which L.S. “mentioned instances of Agency
      employees filing grievances and/or complaints as getting ‘Blacklisted’ by the
      Agency.”    PFR File, Tab 1 at 16-17.        The appellant has not identified any
      evidence in the record supporting her contention that L.S. made the above
      statement. In any event, we agree with the administrative judge that, because the
      alleged wrongdoing implicated L.S., one could infer there would be a strong
      retaliatory motive.    ID at 13.   Nevertheless, as the administrative judge also
      found, “it would be unreasonable to suggest [L.S.] was strongly influenced by
      retaliatory motives when drafting [the appellant’s] appraisal, as the underlying
      events occurred throughout the year, prior to [the appellant’s] whistleblowing
      activities.” ID at 13-14. Further, the administrative judge correctly found that
      L.S. included similar comments in the appraisal of F.B., the IOI who engaged in a
      seemingly prolonged and repetitive conflict with the appellant and who was not a
      whistleblower, and similarly reduced F.B.’s rating for the critical element
      Interpersonal Relations from an Exceeds in 2009 to a Fully Successful in 2010.
      ID at 14; I-2 AF, Tab 32 at 32-37, 46-47, Tab 37, HCD Track 1003.
                                                                                      12

¶19        There is no requirement that an agency meet all three factors to satisfy its
      clear and convincing evidence burden in an IRA appeal.         Whitmore, 680 F.3d
      at 1374. The factors are merely considerations to determine whether the agency
      has met its burden. Id. We agree with the administrative judge that, under the
      circumstances of this case, the strong evidentiary support for the comments L.S.
      made in the appellant’s 2010 performance appraisal under the Attitude critical
      element, along with the similar comments L.S. included in the performance
      appraisal of a similarly situated nonwhistleblower, outweigh any perceived
      retaliatory motive that might have existed. ID at 14‑15.
¶20        Finally, the appellant asserts that the agency did not fully cooperate in
      discovery and destroyed evidence. PFR File, Tab 1 at 18-19. The administrative
      judge denied the appellant’s motion to compel discovery regarding this matter,
      finding that the appellant did not comply with the discovery procedures set forth
      at 5 C.F.R. § 1201.73. I-2 AF, Tab 36.      The appellant has not shown that the
      administrative judge abused her discretion in denying the motion to compel.
      See Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 16 (2016) (finding that
      an administrative judge has broad discretion in ruling on discovery matters, and
      absent an abuse of discretion the Board will not find reversible error in such
      rulings). Thus, we find no basis for disturbing the administrative judge’s rulings
      regarding discovery.
¶21        Accordingly, we agree with the administrative judge’s determination to
      deny the appellant’s request for corrective action in this case because the agency
      has proven by clear and convincing evidence that it would have taken the same
      personnel action in the absence of the appellant’s protected disclosure.
      The agency’s cross petition for review is denied.
¶22        The agency asserts that the administrative judge should have dismissed this
      appeal for lack of jurisdiction because the appellant did not nonfrivolously allege
      that her disclosure was a contributing factor in an agency personnel action.
      PFR File, Tab 3 at 15. The agency contends that the administrative judge based
                                                                                       13

      her jurisdictional determination on the timing of the disclosure and the personnel
      action without addressing the knowledge aspect of the knowledge/timing test. Id.
      at 16-18. The agency asserts that the appellant did not allege that L.S. had actual
      or constructive knowledge of the disclosure. Id. at 17.
¶23        The evidence submitted below, however, shows that L.S. received the
      appellant’s email and attachment indicating that the appellant had filed a
      complaint with the OIG and contacted the EEO Office. I-2 AF, Tab 33 at 6-7. As
      set forth above, L.S. testified that she received the email and the attached
      memorandum. I-2 AF, Tab 37, HCD Track 1003. There is no dispute that L.S.
      was aware of the fact of the appellant’s disclosure. Given that L.S. issued the
      contested performance appraisal approximately 1 month after the appellant made
      her protected disclosure, the administrative judge correctly held that the appellant
      nonfrivolously alleged that a protected disclosure was a contributing factor in a
      personnel action and that the Board had jurisdiction over this appeal.
¶24        The agency also asserts that the administrative judge erred in finding that
      the appellant proved by preponderant evidence that she made a protected
      disclosure to the OIG.    PFR File, Tab 3 at 18-19.       In this regard, the agency
      contends that the appellant did not submit a copy of her September 21, 2010
      disclosure to the OIG, but instead produced an August 30, 2012 letter from the
      OIG that did not address the nature of her disclosure. Id. at 18. Thus, the agency
      asserts that there is no evidence in the record supporting the administrative
      judge’s finding that the OIG disclosure was related to the conduct of L.S. and
      demonstrated gross mismanagement by L.S. Id.
¶25        The record does not appear to include a copy of the complaint the appellant
      filed with the OIG. In fact, it appears that she submitted the complaint by means
      of an agency website and indicated in a May 25, 2011 email to a supervisory EEO
      manager that she could not find the OIG complaint and thought that she had
      deleted it when the OIG did not respond and the matter was agreed to be handled
      through the EEO Office.      I-2 AF, Tab 33 at 15-18.       The OIG informed the
                                                                                      14

      appellant in an August 30, 2012 letter that her complaint had been erroneously
      routed to an unrelated email folder location, which resulted in the nearly 2‑year
      delay in addressing her complaint. I-2 AF, Tab 8 at 25.
¶26        The administrative judge found that the appellant credibly testified that she
      noticed in 2009 and 2010 a pattern of “funny” and inflated numbers concerning
      the reporting of hours worked by Investigators. ID at 5-6; see I‑2 AF, Tab 37,
      HCD Track 1001. Moreover, the appellant asserted in numerous pleadings that
      she disclosed to the OIG that L.S. “was manipulating the inspection hours (adding
      on) after closing the inspections in the database (Nspect).” IAF, Tab 7 at 1-2;
      see I-2 AF, Tab 8 at 5-6; Scott, 69 M.S.P.R. at 228 (finding that an unsworn
      statement by an appellant in an initial appeal file is simply one form of
      admissible hearsay evidence). In a September 27, 2010 email to an individual in
      the agency’s Office of Chief Counsel, the appellant notified him that her
      complaint to the OIG involved “[s]upervisory misconduct.”             I-2 AF, Tab 8
      at 38‑39. All of this evidence is consistent with the appellant’s OSC complaint,
      which indicated that she asserted in the OIG complaint that L.S. had inflated
      inspection reporting hours for her area office.       Id. at 13-14.    Under these
      circumstances, and given this pro se appellant’s indication that she believed that
      she had deleted the OIG complaint, as well as the OIG’s indication, nearly 2 years
      after the fact, that it had mishandled the complaint, we find that the agency has
      shown no error in the administrative judge’s determination that the appellant
      proved by preponderant evidence that she made a protected disclosure of a
      violation of law, rule, or regulation and gross mismanagement as it related to the
      reporting of fraudulent and inflated statistics in a database relied upon by
      Congress to determine the agency’s budget.
¶27        Accordingly, we deny the petition for review and the cross petition for
      review and affirm the initial decision as modified by this Final Order.
                                                                                 15

                   NOTICE TO THE APPELLANT REGARDING
                      YOUR FURTHER REVIEW RIGHTS
      The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request review of this final decision by the U.S. 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 U.S. 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 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 U.S. 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 U.S. 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 U.S. Code, at our
                                                                                 16

website, http://www.mspb.gov/appeals/uscode.htm. Additional information about
the U.S. 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 the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
      If you are interested in securing pro bono representation for an appeal to
the U.S. 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 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:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
