                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     LAURANELL BURCH,                                DOCKET NUMBER
                 Appellant,                          DC-1221-14-0894-W-1

                  v.

     DEPARTMENT OF HEALTH AND                        DATE: November 16, 2015
       HUMAN SERVICES,
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Vanessa Katherine Lucas, Esquire, Raleigh, North Carolina, for
             the appellant.

           Keith A. Eichenholz, Esquire, and Laura VanderLaan, Esquire, Atlanta,
             Georgia, 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,

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     VACATE the initial decision, and REMAND the case to the regional office for
     further adjudication in accordance with this Order.

                                       BACKGROUND
¶2         The appellant was employed as a Staff Scientist with the agency’s National
     Institute of Environmental Health Sciences (NIEHS) in a time-limited, renewable
     position under 42 U.S.C. § 209(g). Initial Appeal File (IAF), Tab 1 at 10. By
     letter dated May 26, 2013, the agency informed her that her appointment
     would not be extended beyond June 30, 2014, due to budget constraints. Id. She
     filed the instant appeal alleging, in part, that her appointment was not renewed in
     retaliation for her prior protected disclosures. Id. at 5, 7.
¶3         Regarding her protected disclosures, the appellant alleged the following:
     (1) since 2007 she made repeated disclosures to management concerning wasteful
     contractor charges, mismanaged research studies, and underutilized facilities;
     (2) on April 26, 2013, 2 during a meeting with the NIEHS Scientific Director, she
     disclosed underutilization of the microarray core facility laboratories and inflated
     contractor costs related to mouse genotyping; (3) on May 5, 2013, she disclosed
     inflated contractor charges, Environmental Polymorphism Registry (EPR) study
     waste, and personnel mismanagement to the Office of Special Counsel (OSC); 3
     and (4) in a May 21, 2013 email to the NIEHS Scientific Director, she disclosed
     the underutilization and mismanagement of microarray core staff and molecular
     genetics staff, and other waste and mismanagement issues. IAF, Tab 1 at 13-14,
     Tab 12 at 18-22, 27. The appellant further alleged that, in retaliation for these
     disclosures, the agency took a number of personnel actions against her,



     2
      The appellant asserts that the meeting occurred on or about April 25, 2013 or April 26,
     2013. IAF, Tab 12 at 21.
     3
      The appellant references her OSC disclosure as being filed on May 3, 2013, however,
     according to OSC’s records it was filed on or about May 5, 2013. IAF, Tab 1 at 22,
     Tab 12 at 8, 22.
                                                                                            3

     culminating in the nonrenewal of her appointment in 2013. 4 IAF, Tab 1 at 10,
     13-14, 16.
¶4         Without holding the appellant’s requested hearing, the administrative judge
     issued an initial decision dismissing the appeal for lack of jurisdiction.          IAF,
     Tab 1 at 3, Tab 14, Initial Decision (ID). 5 The administrative judge found that
     the appellant failed to make nonfrivolous allegations of protected disclosures. ID
     at 6-9.   Regarding the appellant’s repeated disclosures since 2007 of wasteful
     contractor charges, mismanaged research studies, and underutilized facilities, the
     administrative judge found that she failed to identify specifically what she
     disclosed, to whom she disclosed it, and when; thus, she failed to satisfy the
     requirement that disclosures be detailed and specific. ID at 7-8. Regarding the
     appellant’s April 26, 2013 disclosure of inflated contractor costs and the
     underutilization of the microarray core facility laboratories, the administrative
     judge found that such a claim, even if true, was not a disclosure of gross
     mismanagement or a gross waste of funds. ID at 8-9. The administrative judge
     also found that an agency’s decision not to renew an appointment under 42 U.S.C.
     § 209(g) is not an action otherwise appealable to the Board. ID at 2-3.
¶5         The appellant has filed a petition for review in which she asserts that the
     administrative judge incorrectly identified her disclosures, improperly failed to
     address two of her disclosures, and erred in finding that her disclosures were not
     protected. Petition for Review (PFR) File, Tab 1 at 12-13, 16-19. The appellant
     also asserts that she was denied the opportunity to participate in discovery. Id.


     4
      The appellant asserts that, in 2012, the agency eliminated her supervisory duties,
     micromanaged her, and forced her to change offices. IAF, Tab 12 at 28-29.
     5
       The initial decision dismissed the appeal for lack of jurisdiction without reaching the
     merits; however, the administrative judge improperly stated that “the appellant’s
     request for corrective action is DENIED.”          ID at 2; Hagen v. Department of
     Transportation, 103 M.S.P.R. 595, ¶ 10 (2006) (holding that it is improper to deny a
     request for corrective action on the merits without first determining whether the Board
     has jurisdiction over the appeal).
                                                                                       4

     at 4 n.1. The agency has filed a response in opposition to the appellant’s petition.
     PFR File, Tab 3. The appellant has filed a reply. PFR File, Tab 4.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶6        The Board has jurisdiction over an IRA appeal if the appellant exhausts her
     administrative remedies before OSC and makes nonfrivolous allegations that:
     (1) she made a disclosure described under 5 U.S.C. § 2302(b)(8), or engaged in
     protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D);
     and (2) the disclosure or protected activity was a contributing factor in the
     agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C.
     § 2302(a). 5 U.S.C. §§ 1214(a)(3), 1221(e)(1); Yunus v. Department of Veterans
     Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).
     The appellant exhausted her administrative remedies before OSC.
¶7        The administrative judge did not make explicit findings on exhaustion, but
     rather identified two disclosures and two personnel actions referenced in OSC’s
     close-out letter. ID at 5-6. To satisfy the exhaustion requirement, an appellant
     must inform OSC of the precise ground of her whistleblowing claim, giving OSC
     a sufficient basis to pursue an investigation that might lead to corrective action.
     Ward v. Merit Systems Protection Board, 981 F.2d 521, 526 (Fed. Cir. 1992). An
     appellant must prove exhaustion by preponderant evidence.            See Mason v.
     Department of Homeland Security, 116 M.S.P.R. 135, ¶¶ 9-10 (2011) (finding
     that an administrative judge failed to provide proper jurisdictional notice
     regarding the appellant’s burden to prove exhaustion of the alleged disclosures
     and personnel actions). Exhaustion with OSC is a jurisdictional prerequisite to
     Board consideration of the substance of the appellant’s allegedly protected
     disclosures, Ward, 981 F.2d at 526, and the scope of an IRA appeal is limited to
     those disclosures raised before OSC, Sazinski v. Department of Housing & Urban
     Development, 73 M.S.P.R. 682, 685 (1997).
                                                                                      5

¶8         The record reflects that the appellant filed a complaint with OSC and
     subsequently provided OSC with additional documentation and emails concerning
     her claims. IAF, Tab 1 at 11-17; see IAF, Tab 12 at 19, 24-53. Before OSC she
     alleged first that she had disclosed waste related to contractor charges,
     mismanaged research studies, and underutilized facilities to NIEHS leadership
     since 2007. IAF, Tab 1 at 13. She also alleged that she was subsequently forced
     to change offices, her supervisory duties were eliminated, and she received an
     overly controlling job plan in 2012. IAF, Tab 12 at 28-30.
¶9         Second, she alleged that during a meeting on April 26, 2013, she disclosed
     inflated contractor charges related to mouse genotyping and the underutilization
     of the microarray core facility to the NIEHS Scientific Director.      IAF, Tab 1
     at 13. Third, she alleged that she disclosed waste and mismanagement, including
     underutilization and mismanagement of the microarray core staff and molecular
     genetics staff via a May 21, 2013 email to the NIEHS Scientific Director and
     others. Id. at 14. Finally, she alleged that, in a May 5, 2013 OSC disclosure
     complaint, she disclosed inflated contractor charges, EPR study waste, and
     personnel mismanagement issues resulting in gross waste.       Id.   The appellant
     contended that the agency threatened her job and then declined to renew her
     appointment in retaliation for her April and May 2013 disclosures. Id. at 13-14;
     IAF, Tab 12 at 21, 31-32.    The record includes a copy of an August 30, 2013
     letter from OSC summarizing the appellant’s allegations consistent with the
     above as well as a May 12, 2014 close-out letter from OSC. IAF, Tab 1 at 21-22,
     29.   Accordingly, we find that the appellant exhausted her administrative
     remedies as to all four of her alleged disclosures, and as to the alleged personnel
     actions of changing offices, her job plan, the elimination of her supervisory
                                                                                              6

      duties, the threat to terminate or not renew her appointment, and the nonrenewal
      of her appointment. 6
      The appellant nonfrivolously alleged that she made two protected disclosures.
¶10         A nonfrivolous allegation of a protected disclosure is an allegation of facts
      that, if proven, would show that the matter disclosed was one that a reasonable
      person in the appellant’s position would believe evidenced one of the situations
      specified in 5 U.S.C. § 2302(b)(8). See Mudd v. Department of Veterans Affairs,
      120 M.S.P.R. 365, ¶ 8 (2013).       At the jurisdictional stage, an appellant is not
      required to prove that her disclosure is protected under 5 U.S.C. § 2302(b)(8). Id.
      Once an appellant establishes jurisdiction over her IRA appeal, she is entitled to a
      hearing on the merits of her claim, which she must prove by preponderant
      evidence.   Benton-Flores v. Department of Defense, 121 M.S.P.R. 428, ¶¶ 4-5
      (2014).
¶11         The appellant alleges that her disclosures revealed gross mismanagement
      and gross waste of funds. 7 IAF, Tab 1 at 13-14. An employee discloses a gross

      6
        An agency’s decision not to renew a title 42 appointment is a personnel action under
      5 U.S.C. § 2302(a). See Belyakov v. Department of Health & Human Services,
      120 M.S.P.R. 326, ¶ 4 (2013). Further, the threat to take a personnel action, such as a
      termination or the nonrenewal of an appointment, is a personnel action. 5 U.S.C.
      § 2302(a)(2)(A)(iii), (v), (vi), (b)(8). In light of our findings below, we find it
      unnecessary to reach the issue of whether the appellant’s office change, job plan, or the
      elimination of her supervisory duties were personnel actions because the appellant
      failed to nonfrivolously allege that the disclosures that preceeded these personnel
      actions were protected. IAF, Tab 12 at 28-29; see Hooker v. Department of Veterans
      Affairs, 120 M.S.P.R. 629, ¶¶ 3, 6 (2014) (agreeing with an administrative judge’s
      finding that an appellant could not prove that his disclosure was a contributing factor in
      his proposed removal because the proposed removal was issued prior to the disclosure).
      7
         The appellant also alleged that each of her disclosures evidenced an abuse of
      authority. IAF, Tab 1 at 13-14. Such an abuse occurs when there is an arbitrary or
      capricious exercise of power by a Federal official or employee that adversely affects
      the rights of any person or results in personal gain or advantage to himself or preferred
      other persons. Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 15 (2014). There
      is no evidence in the record that the appellant disclosed any actions that resulted in
      personal gain. Although she alleged that the Scientific Director “prioritized the
      purchase of new carpeting for the floor of the module where his office is located, and
      also recovered perfectly functional cubicles in cloth of a different color,” IAF, Tab 12
                                                                                        7

      waste of funds when she alleges that a more than debatable expenditure is
      significantly out of proportion to the benefit reasonably expected to accrue to the
      Government.     Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶ 10
      n.3 (2015).
¶12        Gross mismanagement is more than de minimis wrongdoing or negligence;
      it means a management action or inaction that creates a substantial risk of
      significant adverse impact on the agency’s ability to accomplish its mission.
      Swanson v. General Services Administration, 110 M.S.P.R. 278, ¶ 11 (2008); see
      S. Rep. No. 112-155, at 8 (2012), reprinted in 2012 U.S.C.C.A.N. 589, 596
      (citing Swanson with approval in a U.S. Senate report on the Whistleblower
      Enhancement     Protection   Act   of   2012).    The   statutory   protection   for
      whistleblowers is not a weapon in arguments over policy or a shield for
      insubordinate conduct; policy disagreements with agency decisions or actions
      are not protected unless they separately constitute a protected disclosure of one of
      the categories of wrongdoing listed in section 2302(b)(8)(A).              5 U.S.C.
      § 2302(a)(2)(D); Webb, 122 M.S.P.R. 248, ¶ 8.
            The administrative judge properly found that the appellant failed to
            nonfrivolously allege that her repeated disclosures since 2007
            were protected.
¶13        The appellant’s first alleged disclosure concerns her repeated disclosures to
      management of mismanagement and waste. IAF, Tab 12 at 19-20. We find that
      the appellant has not identified the specific disclosures she made, to whom, and
      when, despite multiple opportunities to do so. PFR File, Tab 1 at 12 (containing
      the appellant’s description of her “repeated disclosures since 2007” as
      “[g]enerally disclosing information to different NIEHS leadership”); IAF, Tab 12
      at 18 (naming some individuals to whom disclosures were made, but again failing



      at 26, she did not allege additional facts from which a reasonable person might
      conclude that the expenditure was arbitrary and capricious, or that the Scientific
      Director or other preferred individuals personally benefitted from the expenditures.
                                                                                        8

      to identify what information was specifically conveyed to whom or when it
      was conveyed).
¶14        On her OSC complaint form, the appellant indicated that sometime in the
      past she disclosed “to management” that a contractor was charging over $100 or
      even $1,500 per mouse tail genotype. IAF, Tab 1 at 13; PFR File, Tab 1 at 17.
      She expressed her opinion that $20 would have been an expensive contract price
      and that the work could have been performed in-house for less than $1 per
      genotype.   IAF, Tab 1 at 13.     She also asserted that she became aware that
      internal facilities were underutilized and work for which internal staff was
      available was shifted to expensive contractors, but failed to state whether she
      disclosed such information to anyone. Id. In her declaration submitted below,
      she similarly contended that she “made repeated disclosures since 2007 reporting
      waste, fraud and abuse related to inflated contractor cost, [EPR] study
      mismanagement and waste, and wasteful management practices of core facilities
      resulting in gross waste” to various management officials. IAF, Tab 12 at 18.
      She submitted a document that she described as containing a history and summary
      of her disclosures. Id. at 19, 24-34. In this summary, the appellant provided
      additional specifics. Id. at 24-28. For example, she asserted that she reported to
      her former supervisor that the failure to replace aging equipment led to the loss of
      study samples. Id. at 26. However, she provides no context or timeframe from
      which we can conclude when the disclosure was made or that it should be
      considered protected.
¶15        The appellant has failed to provide sufficient specifics regarding her alleged
      repeated disclosures since 2007.     Rather, in her summary of disclosures, she
      asserts broadly that she “expressed concerns in particular about supervisory
      issues regarding the EPR, and discussed EPR delays and problems,” “reported
      concerns regarding mismanagement of the EPR study to leadership,” and “related
      concerns about spending priorities.” Id. We agree with the administrative judge
      that the appellant’s conclusory and vague allegations of disclosures of
                                                                                           9

      wrongdoing are insufficient to constitute nonfrivolous allegations of protected
      disclosures.       ID at 7-8; see Barela v. Merit Systems Protection Board,
      388 F. App’x 965, 967 (Fed. Cir. 2010) (finding an appellant’s statements
      concerning her alleged disclosures inadequate to establish jurisdiction where they
      were “vague, conclusory, and unsupported by any evidentiary allegations”) 8;
      Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 14 (2014) (stating that a
      disclosure must be specific and detailed, not a vague allegation of wrongdoing).
             The administrative judge erred in finding that the appellant failed to
             nonfrivolously allege that her April 26, 2013 disclosure was protected.
¶16         As to the appellant’s second disclosure, she alleged that during a meeting
      on April 26, 2013, she disclosed to the NIEHS Scientific Director that the
      microarray core facility was being mismanaged in that staff were underutilized
      and working inefficiently and personnel “were not working much, if at all, in the
      laboratories.” 9    IAF, Tab 1 at 13, 26, Tab 12 at 21.         We agree with the
      administrative judge that, even if true, this alleged conduct does not constitute
      gross mismanagement or a gross waste of funds. ID at 8-9. There is no evidence
      of what other duties staff performed while not working in the laboratories, or
      otherwise to suggest that other duties were not a better use of the employee’s time
      and the agency’s resources. In any event, the appellant has not alleged that a
      disinterested person in her position could reasonably believe there was a risk of
      significant adverse impact on the agency’s mission or an expenditure significantly
      out of proportion to the reasonably anticipated benefit. See Webb, 122 M.S.P.R.
      248, ¶ 10 n.3; Swanson, 110 M.S.P.R. 278, ¶ 11.


      8
       The Board has held that it may rely on unpublished decisions of the U.S. Court of
      Appeals for the Federal Circuit if it finds the reasoning persuasive. Graves v.
      Department of Veterans Affairs, 114 M.S.P.R. 245, ¶ 11 n.2 (2010).
      9
       She claims that one individual told her that he was working at approximately one-sixth
      of his prior speed, and that the budget officer advised her that productivity “had been
      down for years without any reduction in budget, staffing or management.” PFR File,
      Tab 1 at 19; IAF, Tab 12 at 30.
                                                                                      10

¶17        However, the appellant also asserted that, during this same meeting, she
      disclosed that the same contractor at issue in her first disclosure was
      overcharging for mouse genotyping. IAF, Tab 1 at 13. She contended that the
      contractor was charging $1,500 per mouse when the work could have been
      performed in-house for less than $1 per mouse and that one investigator
      contracted out $1 million in a year genotyping a single mouse strain. PFR File,
      Tab 1 at 5; IAF, Tab 12 at 14, 27, 41.      The appellant’s allegations regarding
      overcharging by the contractor are supported by evidence in the record that the
      agency found her concerns to be “fully justified” and after looking into the
      allegations, it terminated the use of the contract. IAF, Tab 13 at 19.
¶18        Taken together, we construe the appellant’s claims as an allegation that she
      disclosed that employees were being underutilized and, instead, work which could
      have been performed in-house was being contracted out at a high cost. We find
      that a disinterested person in the appellant’s position could reasonably believe
      that that this constituted a gross waste of funds. See, e.g., Parikh v. Department
      of Veterans Affairs, 110 M.S.P.R. 295, ¶ 18 (2008) (finding the appellant made a
      nonfrivolous allegation that his disclosure that the agency continued to pay for a
      full staff, despite the fact that the facility had been scheduled to close and had
      substantially decreased its workload, was a nonfrivolous allegation of a disclosure
      of a gross waste of funds). Accordingly, we find that the appellant nonfrivolously
      alleged that her disclosure of this contract expenditure was protected.
            The administrative judge failed to address two of the appellant’s
            disclosures, one of which she nonfrivolously alleged is protected.
¶19        We agree with the appellant that the administrative judge erred in failing to
      address two of her claimed disclosures, instead considering only those disclosures
      referenced in OSC’s close-out letter.    PFR File, Tab 1 at 12-13; ID at 6; IAF,
      Tab 12 at 56.    The administrative judge improperly failed to consider the
      appellant’s May 5, 2013 disclosure to OSC or her May 21, 2013 internal
      disclosure, both of which she identified in her OSC complaint attached to her
                                                                                       11

      initial appeal as well as articulated in her brief on jurisdiction.       IAF, Tab 1
      at 13-14, Tab 12 at 5-9. Thus, we address the appellant’s additional disclosures
      on review, finding that she made a nonfrivolous allegation that one of these
      disclosures was protected.
¶20        The appellant alleged that, on May 5, 2013, she disclosed to OSC the
      agency’s   “inflated   contractor   charges,   EPR   study waste    and    personnel
      mismanagement issues resulting in gross waste.” IAF, Tab 1 at 14, Tab 12 at 22.
      While a disclosure to OSC can be protected, see 5 U.S.C. § 2302(b)(8)(B), the
      appellant has not submitted a copy of her disclosure statement and it is not clear
      from the record what specifically she disclosed. We have previously determined
      that the appellant’s broad contentions that she disclosed inflated contractor
      charges, EPR study waste, and personnel mismanagement issues resulting in gross
      waste to be too vague and conclusory to constitute nonfrivolous allegations of
      protected disclosures. See supra ¶¶ 13-15.
¶21        The appellant also specifies that she informed OSC that the agency replaced
      an experienced investigator managing the EPR study with other inexperienced or
      less experienced individuals.   IAF, Tab 12 at 14, 24-25; PFR File, Tab 1 at 6.
      She states that this change ultimately resulted in genotyping delays, and required
      additional “months of effort” by agency employees at “significant salary
      expenditure.”   IAF, Tab 12 at 14, 25; PFR File, Tab 1 at 7.       We find that the
      appellant has failed to nonfrivolously allege sufficient facts to establish that a
      reasonable person could conclude that this management decision created a
      substantial risk of significant adverse impact upon the agency’s ability to
      accomplish its mission or constituted an expenditure significantly out of
      proportion to the benefit reasonably expected to accrue.
¶22        Finally, the administrative judge failed to address the appellant’s fourth
      disclosure, an email to NIEHS leadership on May 21, 2013, which the appellant
      characterizes as a disclosure regarding “underutilization and mismanagement of
      microarray core staff and molecular genetics staff, and other waste and
                                                                                       12

      mismanagement issues.” IAF, Tab 1 at 14. In her email, which is a part of the
      record below, the appellant asserted that certain managers lacked the technical
      knowledge and ability to manage the facility and to advise individuals in their
      work, expressed her disagreement with management’s decisions, and urged that
      she be returned to supervising the molecular genetics staff because of her superior
      knowledge of the work being performed. IAF, Tab 12 at 32-34. We find that the
      appellant has failed to nonfrivolously allege sufficient facts to establish that a
      reasonable person could conclude that such matters constituted a disclosure of a
      gross waste of funds or gross mismanagement. Rather, the appellant was voicing
      her   disagreement   with   management’s     policy   decisions.      See   5 U.S.C.
      § 2302(a)(2)(D); Webb, 122 M.S.P.R. 248, ¶ 8.
¶23         In her email, the appellant also disagreed with a recent decision to renew an
      equipment servicing contract for $35,000. IAF, Tab 12 at 33. She identified an
      agency employee who had successfully performed the servicing maintenance on
      the equipment for years and alleged that this individual could have performed the
      majority of the contract work in-house for no cost.        Id.     According to the
      appellant, any work that could not have been performed in-house could have been
      contracted out “for about 3k in cost.” Id. We find that the appellant has made a
      nonfrivolous allegation that a reasonable person in her position would believe that
      it was a gross waste of funds for the agency to renew the contract rather than
      perform the work itself at a fraction of the cost. See Smith v. Department of the
      Army, 80 M.S.P.R. 311, ¶¶ 8, 10 (1998) (finding that the appellant made a
      nonfrivolous allegation that he had disclosed a gross waste of funds by disclosing
      that the agency spent $15,000 on a fuel management system that would provide
      no benefit to the Government because the new system provided the same
      information as the system it replaced); Van Ee v. Environmental Protection
      Agency, 64 M.S.P.R. 693, 698 (1994) (finding the appellant’s disclosure
      regarding an expenditure of $400,000 for an allegedly unnecessary research study
      was a nonfrivolous allegation of gross waste of funds).
                                                                                     13

      The appellant nonfrivolously alleged that her disclosures were a contributing
      factor in the agency’s decision not to renew her contract.
¶24           The final jurisdictional inquiry is whether the appellant made a
      nonfrivolous allegation that her April 26, 2013 and May 21, 2013 disclosures
      were a contributing factor in the agency’s alleged threat to her employment and
      decision not to renew her appointment.      The record reflects that the NIEHS
      Scientific Director, the official who allegedly threatened the appellant’s job and
      made the decision not to renew her appointment, IAF, Tab 1 at 10, knew of the
      two disclosures because they were made directly to him, IAF, Tab 1 at 13, Tab 12
      at 7, 32-33.   Further, the appellant alleges that, during a meeting on May 23,
      2013, her supervisor informed her that her appointment would not be extended
      beyond June 30, 2014, and read her a “termination letter” written by the NIEHS
      Scientific Director. IAF, Tab 12 at 51.
¶25           To make a nonfrivolous allegation that a disclosure was a contributing
      factor in the agency’s decision to take a personnel action, an appellant need only
      raise a nonfrivolous allegation that the fact of, or content of, the protected
      disclosure was one factor that tended to affect a personnel action in any way.
      Mason, 116 M.S.P.R. 135, ¶ 26.      One way to establish this criterion is the
      “knowledge-timing test,” under which an employee may nonfrivolously allege
      that the 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 conclude that the disclosure
      was a contributing factor in the personnel action. 5 U.S.C. § 1221(e)(1); Mason,
      116 M.S.P.R. 135, ¶ 26. Once the appellant has made a nonfrivolous allegation
      that the knowledge-timing test has been met, she has met her jurisdictional
      burden concerning the contributing factor criterion. Mason, 116 M.S.P.R. 135,
      ¶ 26.
                                                                                      14

¶26         The Board has held that a personnel action that occurred within 1 year of a
      protected disclosure satisfies the “timing” component of the knowledge-timing
      test. See Mudd, 120 M.S.P.R. 365, ¶ 10. Thus, we find that the appellant made a
      nonfrivolous allegation that she made protected disclosures that contributed to a
      threat to her employment and the nonrenewal of her appointment. Accordingly,
      she is entitled to a hearing on the merits of her claim. See Rusin v. Department of
      the Treasury, 92 M.S.P.R. 298, ¶ 20 (2002) (explaining that an appellant is
      entitled to a hearing on the merits if she makes the required nonfrivolous
      allegations of the elements of an IRA appeal).
      The administrative judge did not abuse his discretion concerning discovery.
¶27         Lastly, we find unavailing the appellant’s argument that she was denied the
      opportunity to participate in discovery below. PFR File, Tab 1 at 4. The record
      reflects that the administrative judge made no rulings on discovery and the
      appellant did not file a motion to compel.       See Szejner v. Office of Personnel
      Management, 99 M.S.P.R. 275, ¶ 5 (2005) (determining that an appellant’s failure
      to file a motion to compel below precluded him from raising a discovery dispute
      for the first time on petition for review), aff’d, 167 F. App’x 217 (2006).

                                            ORDER
¶28         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.
