                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MARIA DE LA CRUZ MAGOWAN,                       DOCKET NUMBER
                   Appellant,                        DC-1221-15-0671-W-1

                  v.

     ENVIRONMENTAL PROTECTION                        DATE: June 7, 2016
       AGENCY,
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Maria de la Cruz MaGowan, Bethesda, Maryland, pro se.

           Alexandra Meighan, Esquire, Washington, D.C., 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
     dismissed her individual right of action (IRA) appeal for lack of jurisdiction. For
     the reasons discussed below, we GRANT the appellant’s petition for review and



     1
        A nonprecedential order is one that the Board has determined does not add
     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 Parties may cite nonprecedential orders,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        The Board has jurisdiction over an IRA appeal if the appellant has
     exhausted her administrative remedies before the Office of Special Counsel
     (OSC) and     makes    nonfrivolous allegations that:       (1)   she engaged in
     whistleblowing activity by making a protected disclosure; and (2) the disclosure
     was a contributing factor in the agency’s decision to take or fail to take a
     personnel action. Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371
     (Fed. Cir. 2001). The administrative judge dismissed this IRA appeal for lack of
     jurisdiction without holding a hearing, finding on the written record that “the
     appellant failed to raise a nonfrivolous allegation that she exhausted her
     administrative remedies before OSC.” Initial Appeal File (IAF), Tab 13, Initial
     Decision (ID) at 7.
¶3        In her timely filed petition for review, the appellant asserts that the
     disclosures involved in this IRA appeal are the same April 2003 disclosures
     reported in her prior IRA appeal, MaGowan v. Environmental Protection Agency,
     MSPB Docket No. DC-1221-11-0737-B-2, Appeal File (B-2 AF), which the
     Board remanded to the regional office and was pending before a different
     administrative judge when the appellant filed this IRA appeal, 2 Petition for
     Review (PFR) File, Tab 1 at 1-2. With her petition for review, the appellant
     includes OSC’s February 9, 2015 letter explaining its preliminary decision to
     close its investigation of her allegations, her email correspondence with OSC both
     before and after that date, and a copy of her OSC complaint, dated December 21,
     2
       The administrative judge assigned to the appellant’s prior IRA appeal subsequently
     denied that request for corrective action, MaGowan v. Environmental Protection
     Agency, MSPB Docket No. DC-1221-11-0737-B-2, Initial Decision (B-2 ID) (Nov. 13,
     2015), and the Board denied the appellant’s subsequent petition for review, MaGowan
     v. Environmental Protection Agency, MSPB Docket No. DC-1221-11-0737-B-2, Final
     Order (May 9, 2016).
                                                                                            3

     2014. Id. at 7-29. The agency responds in opposition to the appellant’s petition
     for review. PFR File, Tab 3.
     The appellant established that she exhausted her administrative remedies before
     OSC.
¶4         As noted above, to establish jurisdiction over an IRA appeal, an appellant
     must, among other things, establish OSC exhaustion. Yunus, 242 F.3d at 1371;
     see Mason v. Department of Homeland Security, 116 M.S.P.R. 135, ¶ 9 (2011)
     (explaining that the appellant must prove exhaustion with OSC, not merely
     present nonfrivolous allegations of exhaustion); Rusin v. Department of the
     Treasury, 92 M.S.P.R. 298, ¶ 12 (2002). 3 For the reasons set forth below, we find
     that the appellant has established jurisdiction over this IRA appeal.
¶5         In the addendum to her response on the jurisdictional issue, the appellant
     submitted a copy of her OSC complaint in which she indicated that she made her
     disclosure in April 2003 and that her supervisor had “created a hostile
     environment against [her] starting around May 2010.” IAF, Tab 6 at 12, 15. In
     her narrative response on the jurisdictional issue, the appellant asserted that she
     first told her immediate supervisor about irregularities regarding fraud, waste, and
     abuse in the Office of Underground Storage Tanks, and, after being harassed in
     response, she then made her April 2003 disclosure to the agency’s Office of
     Inspector General (OIG). IAF, Tab 5 at 4-5. She provided a long list of actions
     that she claimed the agency took in retaliation for her protected disclosure, but
     she conceded that this IRA appeal was related solely to her allegations of
     harassment by her supervisor and the agency’s failure to remove her from an
     allegedly violent work environment following a November 2014 incident in which



     3
       Although the administrative judge initially gave the appellant correct notice of the
     elements and burdens of establishing jurisdiction over her IRA appeal, he articulated
     the wrong standard for OSC exhaustion in the initial decision, finding that the appellant
     “failed to raise a nonfrivolous allegation that she exhausted her administrative remedies
     before OSC.” ID at 7; IAF, Tab 3 at 2.
                                                                                               4

     she claimed that her supervisor violently confronted her. 4 Id. at 6-7. Thus, the
     record reflects that the appellant exhausted her administrative remedies before
     OSC regarding her April 2003 disclosure. Id. at 15.
     The appellant nonfrivolously alleged that she made a protected disclosure that
     was a contributing factor in a personnel action.
¶6         The administrative judge in one of the appellant’s prior IRA appeals found
     it undisputed that the appellant’s April/May 2003 contact with the agency’s OIG
     was protected whistleblower activity.         MaGowan v. Environmental Protection
     Agency, MSPB Docket No. DC-1221-11-0737-B-2, Initial Decision                     at 11-13
     (Nov. 13, 2015). 5 The appellant alleged in her December 2014 OSC complaint
     that, ever since May 2010, when her supervisor learned about the protected



     4
       Several of the personnel actions the appellant raises here, the change of her sick leave
     to absence without leave (AWOL), the agency’s failure to promote her to the GS-15
     level, and the change of her title from Lead Program Analyst to Program Analyst, are
     implicated in one of the appellant’s prior IRA appeals, in which the Board has issued its
     final decision. See MaGowan v. Environmental Protection Agency, MSPB Docket No.
     DC-1221-11-0737-B-2, Final Order (May 9, 2016); see also 5 C.F.R. § 1201.113. At an
     earlier stage of that IRA appeal, the administrative judge found that the appellant’s
     election to file a grievance regarding the agency’s failure to promote her to GS-15
     precluded her from pursuing that claim in an IRA appeal before the Board and that the
     Board lacked jurisdiction over the agency’s action changing her title because the
     appellant had agreed to the reassignment as part of the agreement settling yet another
     prior IRA appeal, leaving the change of her sick leave to AWOL the only outstanding
     issue in that IRA appeal. See MaGowan v. Environmental Protection Agency,
     119 M.S.P.R. 9, ¶ 3 (2012). The appellant did not challenge those findings on review.
     Id. On remand, the administrative judge correctly determined that the agency would
     have changed the appellant’s sick leave to AWOL in the absence of her protected
     whistleblowing activity. B-2 ID at 15-22. Although the appellant argued in that IRA
     appeal that the agency had wrongfully denied her request for annual leave on those
     days, her request for sick leave is the only part of that episode implicated in that appeal,
     and any challenge regarding the choice to deny her annual leave is instead more
     pertinent to the hostile work environment allegations she makes herein and should
     therefore be considered by the administrative judge in this case on remand. E.g.,
     Whitmore v. Department of Labor, 680 F.3d 1353, 1375 (Fed. Cir. 2012).
     5
       In remanding the appellant’s prior IRA appeal, the Board found the appellant
     nonfrivolously alleged that she disclosed both a violation of law and a gross waste of
     funds, satisfying that element of the jurisdictional test. MaGowan, 119 M.S.P.R. 9, ¶ 7.
                                                                                        5

     disclosure, 6 the supervisor has created a hostile work environment against her
     through yelling, stating epithets, and bullying, including throwing a telephone at
     her. IAF, Tab 6 at 12. She further alleged in that OSC complaint that other
     agency officials have been aware of the harassment for years and have chosen to
     do nothing about it. Id. In that regard, she contended in her appeal below that,
     contrary to the agency’s assertion, it did not remove her from that work
     environment following the latest incident of such behavior on November 21,
     2014.    IAF, Tab 5 at 7.    The Board recently explained that the creation of a
     hostile work environment is a personnel action under the WPA.             Savage v.
     Department of the Army, 122 M.S.P.R. 612, ¶ 23 (2015).
¶7           In remanding the appellant’s prior IRA appeal, we credited her allegations
     that her supervisor had asked about both her 2003 protected disclosure and that
     the appellant provided her a copy of the OIG’s report regarding her allegations,
     just 6 months before taking the 2010 personnel action at issue in that IRA appeal.
     MaGowan, 119 M.S.P.R. 9, ¶ 10. Thus, even though the disclosures themselves
     predated the personnel action at issue by many years, we found that the May 2010
     inquiry initiated by the appellant’s supervisor into those disclosures raised a
     material issue about the agency’s reasons for the personnel action, and constituted
     a nonfrivolous allegation that her 2003 disclosure to the OIG was a contributing
     factor to that 2010 personnel action. Id., ¶ 10; see, e.g., Dorney v. Department of
     the Army, 117 M.S.P.R. 480, ¶ 15 (2012) (explaining that any weight given to a
     whistleblowing disclosure, either alone or in combination with other factors, can
     satisfy the contributing factor standard) (citing Marano v. Department of Justice,
     2 F.3d 1137, 1140 (Fed. Cir. 1993)). Given the appellant’s assertions before OSC
     and the Board in this IRA appeal that the alleged hostile work environment


     6
       The Board found that the appellant’s supervisor learned about the appellant’s
     April 2003 disclosure in May 2010 when she “demanded the details of the disclosure
     and requested that the appellant provide her with a copy of the OIG report.” MaGowan,
     119 M.S.P.R. 9, ¶ 10.
                                                                                         6

     continued unabated from when her supervisor inquired about her protected
     disclosures in May 2010 until when the appellant filed the OSC complaint at issue
     in November 2014, e.g., IAF, Tab 6 at 12, Tab 5 at 6-7, we similarly find that the
     appellant has nonfrivolously alleged that her protected disclosure was a
     contributing factor in the creation of the hostile work environment she alleges.
¶8         Consequently, we find that the appellant established OSC exhaustion
     regarding her April 2003 protected disclosure and that she made nonfrivolous
     allegations sufficient to entitle her to a hearing on the merits of her claim that the
     agency subjected her to a hostile work environment in reprisal for that April 2003
     protected disclosure. To prove her claim on the merits, the appellant must show
     by preponderant evidence that her alleged disclosure was a contributing factor in
     the agency’s personnel action. E.g., Chavez v. Department of Veterans Affairs,
     120 M.S.P.R. 285, ¶ 17 (2013). If the appellant proves her claim on the merits,
     the agency then may attempt to establish by clear and convincing evidence that it
     would have taken the same personnel action in the absence of the disclosure. Id.

                                           ORDER
           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.
