                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                      2014 MSPB 62

                            Docket No. NY-1221-13-1018-W-1

                                    James E. Carney,
                                        Appellant,
                                             v.
                           Department of Veterans Affairs,
                                         Agency.
                                      August 6, 2014


           Robert C. Laity, Tonawanda, New York, for the appellant.

           Sheila Q. Weimer, Esquire, Buffalo, New York, for the agency.

                                         BEFORE

                             Susan Tsui Grundmann, Chairman
                             Anne M. Wagner, Vice Chairman
                                Mark A. Robbins, Member



                                 OPINION AND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For
     the reasons set forth below, we GRANT the appellant’s petition for review and
     AFFIRM those parts of the initial decision finding that the appellant proved that
     he exhausted his administrative remedies and nonfrivolously alleged that he
     engaged in the protected activity of assisting a coworker in a grievance
     proceeding.   We VACATE the portion of the initial decision finding that the
     appellant failed to make a nonfrivolous allegation that his protected activity was
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     a contributing factor to the agency’s personnel action and REMAND the appeal
     for further adjudication consistent with this Opinion and Order.

                                       BACKGROUND
¶2         The appellant filed an IRA appeal alleging, among other things, that the
     agency retaliated against him for assisting a coworker in a grievance proceeding
     by suspending him for 5 days and, shortly thereafter, suspending him for an
     additional 14 days. Initial Appeal File (IAF), Tab 1 at 5, 7, 13-14; see id., Tab 8
     at 29, 34. The administrative judge found that the appellant had exhausted his
     administrative remedies with the Office of Special Counsel (OSC) regarding the
     two suspensions and that the appellant made a nonfrivolous allegation that he
     assisted a coworker in a grievance, which the administrative judge found was a
     protected activity under the Whistleblower Protection Enhancement Act (WPEA) 1
     provisions codified at 5 U.S.C. § 2302(b)(9). IAF, Tab 20, Initial Decision (ID)
     at 7-11.   However, the administrative judge found that the appellant failed to
     exhaust his administrative remedies with OSC concerning his purported 2010
     whistleblowing disclosures and a 2011 reprimand.                 ID at 9-11.       The
     administrative judge further found that the appellant failed to make a
     nonfrivolous allegation that the agency officials who proposed and decided the
     suspension actions knew of his protected activity and thus that he failed to make
     a nonfrivolous allegation that his protected activity was a contributing factor to
     his suspensions. ID at 11-14. The administrative judge dismissed the appeal for


     1
       Pub. L. No. 112-199, 126 Stat. 1465. Pursuant to section 202 of the statute, the
     WPEA became effective on December 27, 2012. The appellant represented a coworker
     at an informal grievance meeting on March 6, 2013. See IAF, Tab 1 at 13. The
     decision on the appellant’s 5-day suspension was issued to the appellant on March 22,
     2013. IAF, Tab 8 at 29. Additionally, the decision on the 14-day suspension was
     issued on August 12, 2013. Id. at 34. Thus, all of the actions relevant to consideration
     of whether the agency retaliated against the appellant in violation of 5 U.S.C.
     § 2302(b)(9)(B) occurred after the December 27, 2012 effective date of the WPEA.
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     lack of jurisdiction, without holding the appellant’s requested hearing. ID at 2,
     15; IAF, Tab 1 at 3.
¶3          The appellant has petitioned for review. Petition for Review (PFR) File,
     Tab 1. The agency has responded in opposition to the petition, PFR File, Tab 3,
     and the appellant has replied to the response, PFR File, Tab 4.

                                          ANALYSIS
¶4          As with all IRA appeals, the first element to Board jurisdiction over an
     IRA appeal involving an allegation of reprisal for activities protected by 5 U.S.C.
     § 2302(b)(9) is exhaustion by the appellant of his administrative remedies before
     OSC.     5 U.S.C. § 1214(a)(3); Mudd v. Department of Veterans Affairs,
     120 M.S.P.R. 365, ¶ 4 (2013); see Yunus v. Department of Veterans Affairs,
     242 F.3d 1367, 1371 (Fed. Cir. 2001).        In the instant case, the administrative
     judge found that the appellant exhausted his administrative remedies before OSC
     regarding the claim that the agency suspended him for 5 days and again for 14
     days in reprisal for assisting a coworker in a grievance proceeding. 2 ID at 7-11.



     2
       To satisfy the exhaustion requirement, an appellant must inform OSC of the precise
     ground of his protected activity, giving OSC a sufficient basis to pursue an
     investigation that might lead to corrective action. Davis v. Department of Defense,
     103 M.S.P.R. 516, ¶ 10 (2006). Here, the administrative judge found that the appellant
     demonstrated exhaustion with regard to the 5-day suspension through his initial OSC
     complaint and exhaustion with regard to the 14-day suspension through evidence that he
     supplemented the original complaint. ID at 7-9; IAF, Tab 1 at 13-14, Tab 11, Exhibit F.
     The administrative judge also found that the appellant did not establish exhaustion with
     regard to a purported disclosure he made in 2010 or a 2011 reprimand. ID at 9-11.
     Careful review of the appellant’s submissions to OSC shows that he did not identify his
     alleged 2010 disclosures in those submissions and did not allege retaliation for them in
     the form of the 2011 reprimand or anything else. See IAF, Tab 1 at 13-14, Tab 10,
     Exhibit F. We note that the appellant submitted an email dated September 8, 2010, to
     other agency employees regarding agency records. IAF, Tab 11 at 5. However, there is
     no evidence that the appellant sent this document to OSC. Thus, the administrative
     judge correctly found that the appellant did not show that he exhausted his
     administrative remedies regarding his 2010 disclosures or the 2011 reprimand.
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     That finding is not challenged on review, and we discern no error in the
     administrative judge’s finding.
¶5         The next requirement to show Board jurisdiction over an IRA appeal is for
     the appellant to nonfrivolously allege that he engaged in an activity protected by
     the WPEA. Mudd, 120 M.S.P.R. 365, ¶ 4. Prior to the enactment of the WPEA,
     the Board lacked jurisdiction over an allegation, such as the one in the instant
     case, of retaliation for representing a coworker in a grievance proceeding. See
     Wooten v. Department of Health & Human Services, 54 M.S.P.R. 143, 146
     (1992); see also Rubendall v. Department of Health & Human Services,
     101 M.S.P.R. 599, ¶ 9 (2006).       However, the WPEA expanded the Board’s
     jurisdiction in IRA appeals to include claims that a personnel action was
     proposed or taken as a result of a prohibited personnel practice described at
     5 U.S.C. § 2302(b)(9)(B).     Specifically, section 101(b)(1)(A) of the WPEA
     amended 5 U.S.C. § 1221(a) to provide that an employee, former employee, or
     applicant for employment may seek corrective action from the Board with respect
     to any personnel action taken, or proposed to be taken, against such employee,
     former employee, or applicant for employment, as a result of a prohibited
     personnel   practice   described   in   5   U.S.C.   §   2302(b)(8)   or   5   U.S.C.
     § 2302(b)(9)(A)(i), (B), (C), or (D).       See Hooker v. Department of Veterans
     Affairs, 120 M.S.P.R. 629, ¶ 9 (2014) (discussing the scope of the WPEA
     amendments to Title 5). The amended section 2302(b)(9)(B), referenced in the
     amendments to 5 U.S.C. § 1221(a) discussed above, provides that
           [a]ny employee who has authority to take, direct others to take,
           recommend, or approve any personnel action shall not, with respect
           to such authority, take or fail to take, or threaten to take or fail to
           take, any personnel action against any employee or applicant for
           employment because of testifying for or otherwise lawfully assisting
           any individual in the exercise of any right referred to in
           subparagraph (A)(i) or (ii).
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     See Hooker, 120 M.S.P.R. 629, ¶ 9. Subparagraph (A) of 5 U.S.C. § 2302(b)(9),
     in turn, prohibits the taking or failing to take, or threatening to take or fail to
     take, “any personnel action against any employee or applicant for employment
     because of-- (A) the exercise of any appeal, complaint, or grievance right granted
     by any law, rule, or regulation-- (i) with regard to remedying a violation of
     paragraph [(b)](8); or (ii) other than with regard to remedying a violation of
     paragraph [(b)](8).” See Hooker, 120 M.S.P.R. 629, ¶ 9.
¶6         Thus, as correctly found by the administrative judge, under the WPEA the
     Board now has jurisdiction over claims of retaliation for lawfully assisting a
     coworker in a grievance proceeding. 3          The holding that the Board lacks
     jurisdiction over such claims in cases such as Rubendall, 101 M.S.P.R. 599, ¶ 9,
     and Wooten, 54 M.S.P.R. at 146, is superseded by the statutory change. In this
     appeal, the appellant alleged that he represented an agency employee during an
     informal grievance meeting on March 6, 2013.           IAF, Tab 1 at 13.      Such an
     activity clearly falls within the protective umbrella of the WPEA.          Thus, the
     appellant has nonfrivolously alleged that he engaged in a protected activity.
¶7         The next element to Board jurisdiction over an IRA appeal is for the
     appellant to nonfrivolously allege that his protected activity was a contributing
     factor in the agency’s decision to take or fail to take a personnel action. Mudd,
     120 M.S.P.R. 365, ¶ 4. An employee may establish, for jurisdictional purposes,
     that a protected activity was a contributing factor to covered personnel actions
     through circumstantial evidence, such as the acting official’s knowledge of the
     protected activity and the timing of the personnel actions. Mason v. Department



     3
        Although 5 U.S.C. § 1221(a) limits Board appeal rights under 5 U.S.C.
     § 2302(b)(9)(A) to individuals who exercised appeal, complaint, or grievance rights
     under (i), with regard to remedying a violation of section 2302(b)(8), there is no such
     jurisdictional restriction for individuals filing a Board appeal pursuant to 5 U.S.C.
     § 2302(b)(9)(B), such as the appellant in this matter.
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      of Homeland Security, 116 M.S.P.R. 135, ¶ 26 (2011).          Thus, an appellant’s
      nonfrivolous allegation that the official taking the personnel action knew of the
      protected activity and that the personnel action occurred within a period of time
      such that a reasonable person could conclude that the activity was a contributing
      factor in the personnel action is sufficient to meet the knowledge-timing test and
      to satisfy the appellant’s burden to make a nonfrivolous allegation of a
      contributing factor. Id.
¶8          In Ormond v. Department of Justice, 118 M.S.P.R. 337, ¶ 13 (2012), for
      example, the Board found that 6 months between a disclosure and a personnel
      action was sufficiently proximate to allow a reasonable person to conclude that
      the disclosure was a contributing factor in the personnel action. Likewise, in
      Mudd, 120 M.S.P.R. 365, ¶ 10, the Board found that personnel actions alleged to
      have begun within 1 year of the time that an employee engaged in a protected
      activity satisfied the timing prong of the knowledge-timing test.
¶9          Here, the appellant alleged that the supervisors who suspended him in
      March and August of 2013 had knowledge that he assisted a coworker in the
      grievance on March 6, 2013, because they were apprised of the appellant’s
      everyday activities and were intensely scrutinizing him. IAF, Tab 10 at 6, Tab 15
      at 4, Tab 16 at 8. The appellant also alleged that the supervisors who suspended
      him granted the appellant official time to engage in the representational activities.
      IAF, Tab 10 at 6.
¶10         Despite these allegations that the appellant’s supervisors knew of his
      representational activity and suspended the appellant soon thereafter, the
      administrative judge found that the appellant failed to make a nonfrivolous
      allegation that his assistance to a coworker in the grievance process was a
      contributing factor to the two suspensions. ID at 11-15. In making this finding,
      the administrative judge relied on the sworn statements of the agency supervisors
      that, at the time of their involvement with the appellant’s suspensions, they had
      no knowledge of the appellant’s presence at the March 6, 2013 grievance
                                                                                         7

      meeting. ID at 13; see IAF, Tab 8 at 36-38, 40-42. The administrative judge’s
      consideration of the agency’s evidence at this stage of the proceedings was
      erroneous.
¶11         An appellant meets his jurisdictional burden and is entitled to a hearing on
      the merits in an IRA appeal if he makes nonfrivolous allegations that his
      protected activity was a contributing factor to a personnel action. See Aquino v.
      Department of Homeland Security, 121 M.S.P.R. 35, ¶ 9 (2014); Mason,
      116 M.S.P.R. 135, ¶ 7. A nonfrivolous allegation is an allegation of fact that, if
      proven, could establish a prima facie case that the Board has jurisdiction over the
      appeal. Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994); see Weed v.
      Social Security Administration, 113 M.S.P.R. 221, ¶ 18 (2010). In determining
      whether the appellant has made a nonfrivolous allegation of jurisdiction entitling
      him to a hearing, the administrative judge may consider the agency’s
      documentary submissions; however, to the extent that the agency’s evidence
      constitutes mere factual contradiction of the appellant’s otherwise adequate prima
      facie showing of jurisdiction, the administrative judge may not weigh evidence
      and resolve conflicting assertions of the parties, and the agency’s evidence may
      not be dispositive. Weed, 113 M.S.P.R. 221, ¶ 19; Ferdon, 60 M.S.P.R. at 329.
¶12         We find, contrary to the administrative judge’s conclusion, that the
      appellant’s assertions that the supervisors who suspended him in March and
      August of 2013 were aware of his representational activity on March 6, 2013,
      constitute allegations of fact that, if proven, could establish a prima facie case of
      Board jurisdiction.    The agency’s evidence regarding the knowledge of the
      agency supervisors constitutes mere factual contradiction of the appellant’s
      evidence and should not have been considered by the administrative judge. Thus,
      we conclude that the appellant met his jurisdictional burden and is entitled to a
      hearing on the merits of his claim.
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                                           ORDER
¶13         We remand the appeal to the regional office for further adjudication,
      including a hearing, consistent with this Opinion and Order.



      FOR THE BOARD:


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