                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     KEVIN RAY ZYGMUNT,                              DOCKET NUMBER
                  Appellant,                         PH-0752-15-0292-I-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: May 13, 2016
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Marc Pasekoff, Esquire, Washington, D.C., for the appellant.

           Stephen A. Douglas, Esquire, and Teresa A. Robison, Esquire,
             Mechanicsburg, Pennsylvania, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     found that he failed to prove his affirmative defense of reprisal for
     whistleblowing and denied his request for corrective action and damages. 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        A nonprecedential order is one that the Board has determined does not add
     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 Parties may cite nonprecedential orders,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

     REMAND the case to the regional office for further adjudication in accordance
     with this Order.

                        DISCUSSION OF ARGUMENTS ON REVIEW
¶2         On or about April 6, 2015, the appellant timely filed an appeal challenging
     the agency’s decision to suspend him for 15 days beginning on March 22, 2015,
     and he raised an affirmative defense of whistleblower retaliation. Initial Appeal
     File (IAF), Tab 1. During the course of the appeal, the agency rescinded the
     suspension action and returned the appellant to the status quo ante. IAF, Tab 26.
     Although the appellant did not dispute that he was returned to the status quo ante,
     the administrative judge held a hearing on November 9, 2015, based on his
     finding that the appellant made a nonfrivolous claim of retaliation for
     whistleblowing under the Whistleblower Protection Enhancement Act (WPEA).
     IAF, Tab 47, Initial Decision (ID) at 2. 2
¶3         After holding a hearing, the administrative judge issued an initial decision
     finding   that   the   appellant   failed    to   prove   his   affirmative   defense    of
     whistleblowing reprisal and denying his requests for corrective action and
     damages. ID at 2. The administrative judge found that the appellant made three
     protected disclosures before the agency issued the notice proposing to suspend
     him and that the timing of his disclosures relative to the agency’s suspension
     action satisfied the timing part of the knowledge-timing test.                 Id.      The
     administrative judge found, however, that the appellant did not prove that his
     2
       The administrative judge found that, although the appellant claimed that the agency
     subjected him to various other prohibited personnel actions, the Board’s jurisdiction
     over an appeal is determined by the nature of the agency’s action at the time the appeal
     is filed. ID at 13. The administrative judge found that the appellant challenged his
     15-day suspension in his chapter 75 appeal, and he did not file a whistleblowing
     complaint with the Office of Special Counsel (OSC). Id. The administrative judge
     further found that the appellant did not exhaust his administrative remedies with OSC
     regarding the other personnel actions, and therefore this is not an individual right of
     action appeal. Id. The administrative judge found, moreover, that the Board does not
     have jurisdiction over the appellant’s claims that are not encompassed by 5 U.S.C.
     § 7512. Id. The parties do not dispute these findings on review.
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     protected disclosures were a contributing factor in the agency’s decision to
     suspend him because he failed to establish the knowledge element of the
     knowledge-timing test. ID at 10, 12-14.
¶4         The appellant filed a petition for review challenging the administrative
     judge’s finding that he failed to prove that his protected disclosures were a
     contributing factor in the agency’s decision to suspend him. Petition for Review
     (PFR), Tab 1.     The agency filed a response in opposition to the appellant’s
     petition for review, and the appellant replied. PFR File, Tabs 2, 6.
¶5         In an adverse action appeal, such as this, an appellant’s claim of
     whistleblower reprisal is treated as an affirmative defense.               Shannon v.
     Department of Veterans Affairs, 121 M.S.P.R. 221, ¶ 21 (2014). Once the agency
     proves its charge or charges, the appellant must show by preponderant evidence
     that he engaged in whistleblowing activity by making a protected disclosure
     under 5 U.S.C. § 2302(b)(8) and that the disclosure was a contributing factor in
     the agency’s personnel action.      Id.   A protected disclosure is a disclosure of
     information that the appellant reasonably believes evidences any violation of any
     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.
     5 U.S.C. § 2302(b)(8)(A); Shannon, 121 M.S.P.R. 221, ¶ 22.                   Here, the
     administrative judge found that the appellant proved that he engaged in
     whistleblowing activity by making protected disclosures under 5 U.S.C.
     § 2302(b)(8) when he reported a theft of government property, a hostile work
     environment, and safety issues. 3 ID at 8, 10-12. The agency does not dispute that
     finding, and we discern no reason to disturb it on review.
¶6         An employee who establishes that he made a protected disclosure has the
     additional burden of proving by preponderant evidence that his disclosure was a

     3
      Although the creation of a hostile work environment is a personnel action for purposes
     of the WPEA, the reporting of a hostile work environment is also a protected disclosure.
     ID at 11-12; see Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 23 (2015).
                                                                                           4

     contributing   factor   in   the   covered   personnel   actions.      See   5   U.S.C.
     § 2302(b)(8)(A); see Shibuya v. Department of Agriculture, 119 M.S.P.R. 537,
     ¶ 22 (2013).      The most common way of proving that a disclosure was a
     contributing factor in a personnel action is the knowledge-timing test. Shannon,
     121 M.S.P.R. 221, ¶ 23. Under that test, an appellant can prove the contributing
     factor element through evidence that the official taking the personnel action knew
     of the whistleblowing disclosure and took the personnel action within a period of
     time such that a reasonable person could conclude that the disclosure was a
     contributing factor in the personnel action. 4 Id.
¶7         On review, the appellant disputes the administrative judge’s finding that he
     failed to satisfy the knowledge element of the knowledge-timing test and prove
     that the official taking the personnel action knew of the whistleblowing
     disclosure. PFR File, Tabs 1, 6; ID at 13-14. Based on our review of the record,
     we find that the record does not support the administrative judge’s finding on this
     issue. The deciding official’s testimony, as summarized by the administrative
     judge, reflects that the deciding official knew about the appellant’s protected
     disclosures of theft of government property and safety issues on March 6, 2015,
     which is less than a week before he issued the suspension decision on March 12,
     2015. ID at 13.
¶8         Moreover, although the deciding official testified that he was unaware of
     the disclosed issues before March 6, 2015, and that he was unaware of the
     appellant’s claims of a hostile work environment at any time prior to his issuance
     of his March 12, 2015 decision letter, there is evidence in the agency file refuting

     4
       An appellant also may show that a protected disclosure was a contributing factor by
     proving that the official taking the action had constructive knowledge of the protected
     disclosure, even if the official lacked actual knowledge. Nasuti v. Department of State,
     120 M.S.P.R. 588, ¶ 7 (2014). One way of establishing constructive knowledge is by
     demonstrating that an individual with actual knowledge of the disclosure influenced the
     official accused of taking the retaliatory action. Id. On review, the appellant argues
     that the deciding official had actual knowledge that the appellant made a protected
     disclosure before suspending him. PFR File, Tab 6 at 7.
                                                                                         5

      his testimony on this issue. ID at 13; IAF, Tab 7 at 37-38. In the appellant’s
      January 9, 2015 written reply to his notice of proposed suspension, he informed
      the deciding official, in pertinent part, that: “I believe that this excessive action
      is reprisal against me for my complaints about a hostile work environment,
      physical intimidation, and theft and damaging of government property.”          IAF,
      Tab 7 at 37. The appellant also informed the deciding official that, in November
      2014, he “reported several safety concerns to be addressed.” Id. at 38.
¶9          In addition, the deciding official participated in the appellant’s reply
      meeting on January 16, 2015, during which the appellant restated his belief that
      the proposed adverse action was reprisal for his complaints and the pending
      management inquiry into his complaints.      Id. at 60. At a follow up meeting on
      January 20, 2015, the deciding official reviewed what the appellant asserted at the
      reply meeting.    Id. at 42.   The deciding official also was copied on email
      communications in February 2015, discussing the agency’s investigation of the
      appellant’s hostile work environment claim. Id. at 40.
¶10         Further, in the deciding official’s March 12, 2015 suspension decision, he
      referenced his participation in the appellant’s January 16, 2015 reply meeting and
      stated that he “carefully considered [the appellant’s] written and personal
      replies.”   Id. at 71.   We therefore find that the appellant proved, under the
      knowledge-timing test, that the deciding official had actual notice that the
      appellant made protected disclosures before he issued the decision suspending the
      appellant. See Shibuya, 119 M.S.P.R. 537, ¶ 23 (finding that the deciding official
      knew about disclosures when he expressly stated that he gave careful
      consideration to the appellant’s written response to proposed notice).
¶11         Having found that the appellant satisfied the knowledge element of the
      knowledge-timing test, we affirm the administrative judge’s finding that the
      appellant satisfied the timing element of the test. ID at 13. The deciding official
      knew of the appellant’s disclosures in January and February 2015, and shortly
      thereafter decided to take a personnel action against the appellant by suspending
                                                                                     6

      him in March 2015.     Here, the length of time between the deciding official’s
      actual knowledge of the appellant’s disclosures and his decision to suspend the
      appellant is sufficient for a reasonable person to conclude that the appellant’s
      disclosures were a contributing factor in the agency’s personnel action.     See
      Redschlag v. Department of the Army, 89 M.S.P.R. 589, ¶ 87 (2001) (determining
      that the appellant’s disclosures were a contributing factor in his removal when
      they were made approximately 21 months and then slightly over a year before the
      agency removed him). We therefore find that the appellant established a prima
      facie case of whistleblowing.
¶12        Once an appellant establishes a prima facie case of whistleblowing, the
      burden shifts to the agency to prove by clear and convincing evidence that it
      would have taken the same personnel action absent any protected activity. See
      Jenkins v. Environmental Protection Agency, 118 M.S.P.R. 161, ¶ 16 (2012).
      Because the administrative judge found that the appellant failed to make a prima
      facie case of whistleblower reprisal, the administrative judge did not apply the
      clear and convincing evidence test to determine whether the agency proved that it
      would have taken the same personnel action absent the appellant’s protected
      disclosures. We remand this appeal for adjudication of this issue. In analyzing
      whether the agency presented clear and convincing evidence, the administrative
      judge shall, consistent with the guidance provided by the court in Whitmore v.
      Department of Labor, 680 F.3d 1353 (Fed. Cir. 2012), reconsider the record as a
      whole and make thoroughly reasoned findings that address both the evidence
      supporting his conclusions and the countervailing evidence.
                                                                                    7

                                          ORDER
¶13        For the reasons discussed above, we remand this case to the regional office
      for further adjudication in accordance with this Remand Order.




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