                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DAVID J. MCCAULEY,                               DOCKET NUMBER
                   Appellant,                         CH-1221-14-0721-W-1

                  v.

     DEPARTMENT OF VETERANS                           DATE: February 18, 2016
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           David J. McCauley, Coral Springs, Florida, pro se.

           Kimberly Negley, Esquire, St. Louis, Missouri, for the agency.


                                            BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                        FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     denied his request for corrective action. 2 After fully considering the filings in


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
       A substantial portion of the appellant’s petition for review is devoted to a discussion
     of his separate appeal alleging that he was not selected for a Medical Support Assistant
     position in violation of the Veterans Employment Opportunities Act of 1998 (VEOA).
                                                                                             2

     this appeal, we conclude that the petitioner has not established any basis under
     section 1201.115 for granting the petition for review. Therefore, we DENY the
     petition for review. We dismiss the appeal in part for lack of jurisdiction and,
     regarding the parts of the appeal over which we have jurisdiction, we deny the
     appellant’s request for corrective action.

                                        BACKGROUND
¶2         The agency hired the appellant as a GS-5 Clerk in the Beneficiary Travel
     Office (BTO) in the Jefferson Barracks Division of the St. Louis Veterans Affairs
     Medical Center (VAMC) in St. Louis, Missouri. Initial Appeal File (IAF), Tab 9.
     The BTO reimburses veterans for travel costs incurred in coming to the VAMC
     for service. Id. While the appellant was at the Jefferson Barracks, he wrote a
     letter to the head of the agency alleging that the agency had not replaced a BTO
     Clerk who had left the agency, and identifying ways that the BTO could operate
     more efficiently.    IAF, Tab 4, Exhibit (Ex.) 1.        The appellant also provided
     veterans coming to the BTO who were complaining about long wait times with
     business-size envelopes addressed to the head of the agency so that they could
     directly communicate their concerns about the wait times. IAF, Tab 1. Shortly
     thereafter, the agency transferred the appellant to the BTO in the John Cochran
     Division (Cochran) of the VAMC. Id.
¶3         In December 2012, the appellant voluntarily transferred from the position at
     Cochran to a Medical Support Assistant (MSA) position in Bay Pines, Florida, to
     help his brother who was recovering from a serious motor cycle accident. By the


     The Board recently issued a decision on the appellant’s petition for review of the initial
     decision in that case. In a nonprecedential order, the Board remanded the case to the
     regional office for issuance of a jurisdictional notice, and, if the administrative judge
     finds that the Board has jurisdiction, development of the record to determine whether,
     through the agency’s reconstructed selection process, the appellant obtained all of the
     relief he could have obtained had he prevailed on his VEOA claim before the Board.
     McCauley v. Department of Veterans Affairs, MSPB Docket No. CH-3443-14-0099-I-3,
     Final Order (July 8, 2015).
                                                                                        3

     appellant’s admission, he transferred without assurance from the VAMC that he
     could later return. Id. Sometime in 2013, the appellant attempted to return to the
     VAMC, and was told that applying for vacant positions was the only way he
     could return.   IAF, Tab 9.   The appellant applied for two vacancies, an MSA
     position and a Gardener position, and he was not selected for either one.
¶4         The appellant filed an individual right of action (IRA) appeal alleging that
     the agency transferred him to Cochran, failed to noncompetitively transfer him
     back to the VAMC from Florida, and failed to select him for the MSA and
     Gardener positions in violation of the Whistleblower Protection Act (WPA). He
     asserted that the agency’s actions constituted retaliation for the following actions:
     (1) sending his letter to the head of the agency; (2) providing veterans who were
     complaining about long wait times with envelopes addressed to the head of the
     agency so that they could directly communicate their concerns; (3) reporting that
     his supervisor closed the BTO 15 minutes early; and (4) notifying the head of the
     agency that he needed police protection when he closed the BTO because a
     veteran had become violent when he was refused travel reimbursement.            IAF,
     Tabs 1, 8.
¶5         The appellant did not request a hearing. IAF, Tab 1. Based on the written
     submissions of the parties, the administrative judge found the appellant showed
     that he had exhausted administrative procedures before the Office of Special
     Counsel (OSC). IAF, Tab 28, Initial Decision (ID) at 4-5. She also found that
     the appellant could not have reasonably believed that the failure of the agency to
     timely replace a BTO Clerk at the Jefferson Barracks was gross mismanagement.
     However, she found that, because he made it known to high-level managers that
     he had complained to the head of the agency, he established that he was perceived
     as a whistleblower, and, as such, his letter to the head of the agency constituted a
     protected disclosure under 5 U.S.C. § 2302(b)(8). ID at 7-9. Additionally, she
     found that the appellant’s providing envelopes to assist veterans with informing
     the head of the agency of their frustrations with long wait times was a protected
                                                                                             4

     activity under 5 U.S.C. § 2302(b)(9)(B) of the Whistleblower Protection
     Enhancement Act (WPEA), a provision that defines a protected activity as
     lawfully assisting any individual in the exercise of any appeal right granted by
     any law, rule, or regulation. ID at 7-9.
¶6         The administrative judge further found that transfers and nonselections are
     personnel actions, and that, under the knowledge/timing test, the appellant
     established that his disclosures were a contributing factor to his transfer.           ID
     at 9-11. However, she found that, because the appellant failed to show that the
     agency officials who denied the appellant’s transfer from Florida to St. Louis and
     did not select him for the MSA and Gardener positions were aware of his
     disclosures, he failed to show that his disclosures were a contributing factor in
     those personnel actions. ID at 11-13. Finally, the administrative judge found that
     the agency established by clear and convincing evidence that it would have
     reassigned the appellant absent the perception of him as a whistleblower because
     his reassignment was voluntary. ID at 14-17.

                                           ANALYSIS
¶7         Before addressing the merits of an IRA appeal, the Board first must
     determine    whether    all   its   jurisdictional   requirements    have    been    met.
     Schmittling v. Department of the Army, 219 F.3d 1332, 1337 (Fed. Cir. 2000).
     Moreover, the issue of Board jurisdiction is always before the Board and may be
     raised at any time.     Ney v. Department of Commerce, 115 M.S.P.R. 204, ¶ 7
     (2010). 3 Thus, notwithstanding the administrative judge’s reaching the merits of
     the appeal, we find we must make a jurisdictional determination regarding the
     appellant’s IRA appeal. Further, the agency filed a motion to dismiss the appeal


     3
       Attached to the appellant’s petition for review are a number of documents, most of
     which are already in the record, and those that are not were available before the close of
     the record. We have not considered these documents except as they relate to the issue
     of Board jurisdiction. See Meier v. Department of the Interior, 3 M.S.P.R. 247, 256
     (1980); Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980).
                                                                                          5

      for lack of jurisdiction. IAF, Tab 7. The administrative judge did not rule on the
      motion, and made no jurisdictional findings.
¶8          Generally, to establish jurisdiction over an IRA appeal regarding activity
      protected under 5 U.S.C. § 2302(b)(8), an appellant must prove that he exhausted
      his administrative remedies before OSC and make nonfrivolous allegations that:
      (1) he engaged in whistleblowing activity by making a protected disclosure
      under 5 U.S.C. § 2302(b)(8); and (2) the disclosure 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). Yunus v. Department of Veterans Affairs, 242 F.3d 1367,
      1371 (Fed. Cir. 2001); Rusin v. Department of the Treasury, 92 M.S.P.R. 298,
      ¶ 12 (2002). 4
      The appellant exhausted his administrative remedies regarding only some of
      his disclosures.
¶9          Under 5 U.S.C. § 1214(a)(3), an employee is required to “seek corrective
      action from [OSC] before seeking corrective action from the Board” through an
      IRA appeal. To satisfy this requirement, an appellant must articulate to OSC the
      basis for his request for corrective action “with reasonable clarity and precision.”
      Ellison v. Merit Systems Protection Board, 7 F.3d 1031, 1037 (Fed. Cir. 1993);
      see Ward v. Merit Systems Protection Board, 981 F.2d 521, 526 (Fed. Cir. 1992).
      Although an appellant may add further detail to his claims before the Board, see
      Briley v. National Archives & Records Administration, 236 F.3d 1373, 1378 (Fed.
      Cir. 2001), he first must make a reasonably clear and precise claim with OSC,
      see, e.g., Mintzmyer v. Department of the Interior, 84 F.3d 419, 422 (Fed.
      Cir. 1996).
¶10         As noted, the appellant’s alleged protected disclosures are writing a letter to
      the head of the agency, providing veterans who were complaining about long wait


      4
        The administrative judge’s show cause order set forth the necessary jurisdictional
      elements of an IRA appeal under the WPA and the WPEA, including the elements
      required to establish that the appellant was perceived as a whistleblower. IAF, Tab 3.
                                                                                           6

      times with envelopes addressed to the head of the agency so that they could
      directly communicate their concerns, reporting that his supervisor closed the BTO
      15 minutes early, and notifying the head of the agency that he needed police
      protection when he closed the BTO because a veteran had become violent when
      he was refused travel reimbursement.
¶11         The appellant submitted a copy of the complaint that he filed with OSC and
      a copy of OSC’s letter notifying him that he may seek corrective action from the
      Board. IAF, Tabs 1, 4 at 11. 5 In his complaint, he states that, in the fall of 2012,
      he directed veterans to complain to the head of the agency regarding issues that
      impacted their travel pay reimbursement. IAF, Tab 4 at 15-16. He also states
      that he had alerted the head of the agency about his transfer and nonselections.
      Id. at 16. OSC’s letter to the appellant identifies his alleged protected activity as
      sending a letter to the head of the agency concerning reimbursement policies and
      lack of staffing of the BTO, and directing veterans to complain to the head of the
      agency about travel pay reimbursement issues. IAF, Tab 1.
¶12         The appellant’s submissions to OSC mention neither reporting that his
      supervisor closed the BTO 15 minutes early, nor notifying the head of the agency
      that he needed police protection when he closed the BTO because a veteran had
      become violent. Thus, we find that the appellant exhausted his administrative
      remedies before OSC only regarding writing a letter to the head of the agency and
      suggesting to veterans that they complain to the head of the agency about long
      wait times in the BTO.




      5
        The administrative judge mistakenly stated in the initial decision that the appellant
      did not submit a copy of his OSC complaint. ID at 5 n.3. The administrative judge’s
      error is of no legal consequence, however, because it did not adversely affect the
      appellant’s substantive rights. See Karapinka v. Department of Energy, 6 M.S.P.R.
      124, 127 (1981).
                                                                                                  7

      The appellant failed to make a nonfrivolous allegation that writing his letter to
      the agency head was a protected activity.
¶13         We first address whether the appellant made a nonfrivolous allegation that
      his   letter   to    the   head   of   the   agency     is    a   disclosure   protected   by
      section 2302(b)(8). A protected disclosure is a disclosure of information that an
      appellant reasonably believes evidences a 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.                 Schoenig v.
      Department      of    Justice,    120 M.S.P.R.   318,        ¶8   (2013)   (citing   5 U.S.C.
      § 2302(b)(8)). At the jurisdictional stage, the appellant only is burdened with
      making a nonfrivolous allegation that he reasonably believed that his disclosure
      evidenced a violation of one of the circumstances described in 5 U.S.C.
      § 2302(b)(8). Id. The proper test for determining whether an employee had a
      reasonable belief that his disclosure was protected is whether a disinterested
      observer with knowledge of the essential facts known to and readily ascertainable
      by the employee could reasonably conclude that the actions evidenced a violation
      of one of the other conditions set forth in 5 U.S.C. § 2302(b)(8). Id.
¶14         In his September 24, 2012 letter to the head of the agency, the appellant
      notes that generally the BTO is staffed with two clerks, that one of the clerks had
      recently resigned, and states that, as the only clerk in the office, he cannot get
      time off to visit his brother in Florida who was seriously hurt in a motorcycle
      accident. IAF, Tab 7, Ex. 1. He also states that veterans are experiencing long
      wait times in the BTO and have expressed their concerns about the lack of
      staffing in that office. Id. He further identifies ways that he believes that the
      BTO could change to operate with one clerk. Id. Neither the appellant’s letter to
      the head of the agency nor his complaint filed with OSC identifies any category
      of disclosure found in section 2302(b)(8). Id.; IAF, Tab 4. In his response to the
      administrative judge’s jurisdictional order, the appellant, for the first time, uses
                                                                                        8

      the phrase “gross mismanagement” by his manager at the VAMC to characterize
      his disclosure. IAF, Tab 4 at 5.
¶15        The Board has held, however, that it will not require, as a basis for its
      jurisdiction, that an appellant in an IRA appeal correctly label, in a whistleblower
      reprisal complaint to OSC, a category of wrongdoing under 5 U.S.C. § 2302(b)(8)
      that might be implicated by a particular set of factual allegations.      Pulcini v.
      Social Security Administration, 83 M.S.P.R. 685, ¶ 8 (1999), aff’d, 250 F.3d 758
      (Fed. Cir. 2000). Thus, we must examine the appellant’s allegations to determine
      the appropriate whistleblower category. See id. For the reasons discussed below,
      we find that the applicable (b)(8) categories are “abuse of authority” and
      “gross mismanagement.”
¶16        The Board has defined abuse of authority as “an arbitrary or capricious
      exercise of power by a Federal official or employee that adversely affects the
      rights of any person or that results in personal gain or advantage to himself or to
      preferred other persons.”    Id., ¶ 9.   The Board has stated that there is no
      de minimis standard for abuse of authority. Id.
¶17        Gross mismanagement means a management action or inaction that creates a
      substantial risk of significant adverse impact upon the agency’s ability to
      accomplish its mission. Embree v. Department of the Treasury, 70 M.S.P.R. 79,
      85 (1996). It requires “more than de minimis wrongdoing or negligence,” and
      “does not include management decisions which are merely debatable,” nor does it
      “mean action or inaction which constitutes simple negligence or wrongdoing.”
      Id. “There must be an element of blatancy.” Id. Thus, the appellant has a higher
      burden of proof because of the standard applied to allegations of gross
      mismanagement. See id.; see also Smith v. Department of the Army, 80 M.S.P.R.
      311, ¶ 8 (1998).
¶18        The letter that the appellant wrote to the head of the agency is dated
      September 24, 2012. IAF, Tab 7, Ex. 1. In the letter, the appellant’s disclosure is
      that, as of the date of the letter, the agency had not hired a replacement for an
                                                                                         9

      employee who resigned earlier from his position in the BTO and that this caused
      long lines of veterans seeking travel reimbursement.        Although the appellant
      does not give the exact date that this employee left the BTO, he indicates that the
      employee gave his 30-days’ notice sometime after June 22, 2012. Id. Thus, the
      longest time interval that the BTO operated with one clerk by the date of the
      appellant’s letter would have been from July 23 to August 24, 2012, an interval of
      only 2 months. We find that failure to fill a position for 2 months is not in and of
      itself an arbitrary and capricious exercise of authority, and the appellant has
      alleged no additional facts that, if proven, would show that the failure was
      arbitrary and capricious. See Pulcini, 83 M.S.P.R. 685, ¶ 8. Consequently, we
      find that the appellant’s disclosure fails to rise to a nonfrivolous allegation of an
      abuse of authority.    Additionally, we find that a failure to fill a vacancy for
      2 months is merely a debatable management decision, or at most inaction that
      constitutes simple negligence. See Embree, 70 M.S.P.R. at 85. Therefore, we
      likewise find that the appellant’s disclosure fails to rise to the level of a
      nonfrivolous allegation of gross mismanagement.
      The appellant failed to make a nonfrivolous allegation that he was perceived as
      a whistleblower.
¶19         Because the appellant’s letter was known to his managers, including the
      Associate Director of the VAMC, we also have considered whether the appellant
      made a nonfrivolous allegation that he was perceived as a whistleblower. One
      who is perceived as a whistleblower is entitled to the protection of the WPA, even
      if   he   has not   made   protected   disclosures.    Juffer v.   U.S.   Information
      Agency, 80 M.S.P.R. 81, ¶ 12 (1998).
¶20         The Board has found that a variety of fact patterns can support a finding
      that an individual was perceived as a whistleblower. In Mausser v. Department of
      the Army, 63 M.S.P.R. 41, 44 (1994), the appellant compiled a list of “waste,
      fraud, and abuse,” “safety issues,” and violations of “government regulations”
      that he observed at the agency, with the intention of disclosing the list to the
                                                                                     10

      Inspector General after he completed his probationary period.       Although the
      appellant never actually disclosed the list and was therefore not a whistleblower
      when the agency terminated him, the Board found that the agency may have
      perceived him as a whistleblower to the extent that the agency knew about the list
      and his intention to disclose it.    Mausser, 63 M.S.P.R. at 44.   In Thompson v.
      Farm Credit Administration, 51 M.S.P.R. 569, 581 (1991), the appellant
      disagreed with the agency Chairman’s public position on the agency’s financial
      condition, and he expressed his disagreement to various agency officials,
      including the Chairman himself. Although the appellant did not actually disclose
      his disagreement or the bases thereof to anyone outside the agency, and although
      he did not intend for the expression of his disagreement to constitute a
      whistleblowing disclosure, the Chairman still perceived the appellant as a
      whistleblower because he believed the appellant to be “a dangerous proponent of
      a view that could prove embarrassing—possibly evidencing mismanagement and
      abuse of discretion.” Id. In Holloway v. Department of the Interior, 82 M.S.P.R.
      435, ¶ 15 (1999), a local newspaper reported that the appellant had disclosed
      “fraud, waste and abuse” at his employing agency but did not discuss the
      particulars of the disclosures.     The appellant alleged that his supervisor was
      aware of the newspaper article and took personnel actions against him because of
      it. Id. Therefore, the Board found in that case that even absent a showing that
      the appellant made any protected disclosures, he made a nonfrivolous allegation
      that his supervisor perceived him as a whistleblower because the supervisor was
      aware of the newspaper article labeling him as such. Id.
¶21        Although the cases discussed above arose from widely different factual
      circumstances, they share a common element, i.e., that agency officials appeared
      to believe that the appellants engaged or intended to engage in whistleblowing
      activity. Thus, the analysis of whether an appellant was actually a whistleblower
      is different from the analysis of whether an appellant was perceived as a
      whistleblower. In cases falling under the former category, the Board will focus
                                                                                           11

      its analysis on the appellant’s perceptions and the disclosures themselves, i.e.,
      whether he reasonably believed that his disclosures evidenced the type of
      wrongdoing listed under 5 U.S.C. § 2302(b)(8). See, e.g., Parikh v. Department
      of Veterans Affairs, 116 M.S.P.R. 197, ¶¶ 15-18, 22-23 (2011); Rzucidlo v.
      Department of the Army, 101 M.S.P.R. 616, ¶¶ 17-18 (2006).              In cases falling
      under the latter category, the Board will focus its analysis on the agency’s
      perceptions, i.e., whether the agency officials involved in the personnel actions at
      issue believed that the appellant made or intended to make disclosures that
      evidenced the type of wrongdoing listed under 5 U.S.C. § 2302(b)(8). See, e.g.,
      Mausser, 63 M.S.P.R. at 44; Thompson, 51 M.S.P.R. at 581-82. In those cases,
      the issue of whether the appellant actually made protected disclosures is
      immaterial; the issue of whether the agency perceived the appellant as a
      whistleblower will essentially stand in for that portion of the Board’s analysis in
      both the jurisdictional and merits stages of the appeal.
¶22         Therefore, to establish jurisdiction over an IRA appeal alleging that the
      agency retaliated against an appellant based on its perception that he was a
      whistleblower, he must show that he exhausted his remedies before OSC, and
      make a nonfrivolous allegation that the agency perceived him as a whistleblower,
      and that the agency’s perception was a contributing factor in its decision to take
      or   not   take the      personnel   action   at   issue.   King   v.   Department    of
      Army, 116 M.S.P.R. 689, ¶ 6 (2011).
¶23         Here, the appellant stated in his OSC complaint that he was “called on the
      carpet” by the VAMC Assistant Director after he wrote the letter to the head of
      the agency.    IAF, Tab 4 at 15.      Under the circumstances where this allegedly
      being “called on the carpet” occurred before any alleged retaliatory action, we
      find that the appellant’s OSC complaint contained an allegation that he was
      perceived as a whistleblower, and thus he exhausted his administrative remedies
      as to this allegation.
                                                                                          12

¶24         However, as noted above, the appellant’s letter fails to characterize the
      situation as falling under any of the (b)(8) categories. Thus, the circumstances
      here are unlike those in Mausser, 63 M.S.P.R. at 44, where the employee headed
      his list with a (b)(8) category “safety.” Further, the appellant failed to allege that
      the VAMC Assistant Director identified that the appellant’s letter related to any
      (b)(8) category.    In fact, contrary to the assertion in the appellant’s OSC
      complaint that he was “called on the carpet,” he stated in his first response to the
      agency’s motion to dismiss for lack of jurisdiction that the Assistant Director
      “did indicate that I was not in trouble for the letter.” 6 IAF, Tab 4 at 6. Therefore,
      the circumstances here are unlike those in Thompson, 51 M.S.P.R. at 584, where
      an agency official identified the employee’s disagreement with agency action as
      possibly implicating a (b)(8) category. Additionally, there is no outside reference
      to the appellant that characterized the situations mentioned in his letter to the
      head of the agency as any (b)(8) category. So, the circumstances here are unlike
      the situation in Holloway, 82 M.S.P.R. 433, ¶ 5, where a newspaper reported that
      the employee disclosed a (b)(8) category.
¶25         Thus, we find that the appellant failed to make a nonfrivolous allegation
      that any agency officials involved believed that the appellant made or intended to
      make disclosures that evidenced the type of wrongdoing listed under 5 U.S.C.
      § 2302(b)(8).   See, e.g., Mausser, 63 M.S.P.R. at 44; Thompson, 51 M.S.P.R.
      at 581–82.




      6
         The administrative judge mistakenly refers to the appellant’s statements in his
      submissions as unsworn. See, e.g., ID at 16. The appellant’s submissions were e-filed.
      With each document that is e-filed, the question is asked “Do you declare, under
      penalty of perjury, that the facts stated in this pleading are true and correct.” IAF,
      Tab 3, Tab 8 at 3. Thus, all of the statements that the appellant made asserting facts
      that he knew from his personal knowledge and that he e-filed are sworn statements. We
      find that the administrative judge’s error does not affect the outcome of this case. In
      any event, we have considered the statements as sworn in making our decision.
                                                                                      13

      The appellant made a nonfrivolous allegation that the agency retaliated against
      him for activity protected under the WPEA.
¶26          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 regarding 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)(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).     Thus, to establish jurisdiction over an IRA appeal
      regarding activity protected under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D),
      an appellant must prove that he exhausted his administrative remedies before
      OSC and make nonfrivolous allegations that: (1) he engaged in activity protected
      by 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the 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).
¶27          Here, as noted, the appellant exhausted his administrative remedies
      regarding his assertion that the agency retaliated against him for suggesting to
      veterans that they complain to the head of the agency about long wait times in the
      BTO.      Further, as explained below, we find that the appellant made a
      nonfrivolous allegation that his distribution of envelopes addressed to the head of
      the agency was activity protected by section 2302(b)(9)(B) and that his protected
      activity was a contributing factor to the agency’s failure to noncompetitively
      transfer him back to the VAMC from Florida, and failure to select him for the
      MSA and Gardener positions.
¶28          Section 2302(b)(9)(B) makes it unlawful for an individual to take, fail to
      take, or threaten to take a personnel action because of the employee “testifying
      for or otherwise lawfully assisting any individual in the exercise of any right
      referred to in [5 U.S.C. § 2302(b)(8)(A)](i) or (ii).” 5 U.S.C. § 2302(b)(9)(B).
                                                                                          14

      Section 2302(b)(9)(B) also bars reprisal for assisting another individual in the
      exercise of any appeal, complaint, or grievance right granted by law, rule, or
      regulation, and such a proceeding need not concern remedying a violation of
      whistleblower reprisal under section 2302(b)(8). See Carney v. Department of
      Veterans Affairs, 121 M.S.P.R. 446, ¶ 6 n.3 (2014).          For example, performing
      union-related duties, such as filing grievances and representing other employees
      in the grievance process, are protected activities under section 2302(b)(9). See
      Alarid v. Department of the Army, 122 M.S.P.R. 600, ¶ 10 (2015). Also, under
      the WPEA, the Board has jurisdiction over claims of retaliation for lawfully
      assisting a coworker in a grievance proceeding granted by law, rule, or regulation,
      even outside of the context of union-related duties.
¶29         Title 38 of the Code of Federal Regulations, section 17.33(g) provides for
      patient grievances. Specifically, it provides that:
            [e]ach patient has the right to present grievances with respect to
            perceived infringement of the rights described in this section or
            concerning any other matter on behalf of himself, herself or others,
            to staff members at the facility in which the patient is receiving care,
            other Department of Veterans Affairs officials, government officials,
            members of Congress or any other person without fear or reprisal.
      38 C.F.R. § 17.33(g).      The appellant gave the envelopes to the veterans
      experiencing long wait times in the BTO so that they could express their
      frustration to the head of the agency, consistent with the grievance rights
      provided in section 17.33(g). Therefore, we find that he made a nonfrivolous
      allegation that he was assisting patients with a grievance right granted by law,
      rule, or regulation.
¶30         The WPEA was signed into law on November 27, 2012, and it had an
      effective   date   of   December 27,    2012.         King   v.   Department   of   the
      Air Force, 119 M.S.P.R. 663, ¶ 3 (2013).        The appellant’s alleged protected
      disclosure and alleged protected activity occurred prior to the effective date of the
      WPEA. Further, his transfer to Cochran occurred on December 6, 2012, prior to
                                                                                       15

      the effective date of the WPEA, and the Board does not have jurisdiction to
      determine whether the transfer constituted retaliation for activity protected under
      the WPEA.     However, the agency’s failure to noncompetitively transfer the
      appellant back to the VAMC from Florida, and failure to select him for the MSA
      and Gardener positions occurred in 2013, after the effective date of the WPEA
      and the Board has jurisdiction to determine whether these actions constituted
      retaliation for activity protected by the WPEA.
¶31         Each of the agency actions taken regarding the appellant after the effective
      date of the WPEA are personnel actions within the meaning of the WPEA.
      See 5 U.S.C. § 2302(a)(2)(A). Additionally, the appellant made a nonfrivolous
      allegation that his protected activity was a contributing factor in the personnel
      actions. One way to establish this criterion is the knowledge/timing test, under
      which an employee may nonfrivolously allege that the protected activity was a
      contributing factor in a personnel action through circumstantial evidence, such as
      evidence that the official who took 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 disclosure was a contributing factor in
      the   personnel    action.      See   Mason       v.   Department   of   Homeland
      Security, 116 M.S.P.R. 135, ¶ 26 (2011). In his response to the administrative
      judge’s Order on Jurisdiction, the appellant stated that he believed that the
      official responsible for each of these personnel actions took the action in reprisal
      for the appellant’s protected activity. IAF, Tab 4 at 4. The appellant’s protected
      activity occurred in September 2012, and the agency took the personnel actions at
      issue here within a year of the protected activity.       The Board has held that
      personnel actions that were alleged to have begun within 1 year of the disclosures
      satisfy the “timing” component of the knowledge/timing test.          See Mudd v.
      Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 10 (2013).
                                                                                       16

      The appellant failed to prove by preponderant evidence that his protected activity
      was a contributing factor to the agency’s failure to noncompetitively transfer him
      back from Florida and to his nonselections for the MSA and Gardener positions.
¶32        Although we find that the appellant has made a nonfrivolous allegation of
      retaliation for protected activity establishing jurisdiction over his IRA appeal
      under the WPEA, he has failed to establish a prima facie case.         Only if the
      appellant makes out a prima facie case of reprisal for protected activity must the
      agency be given an opportunity to prove, by clear and convincing evidence, the
      affirmative defense that it would have taken the same personnel action in the
      absence of the protected activity.        See 5 U.S.C. § 1221(e)(2); Schnell v.
      Department of the Army, 114 M.S.P.R. 83, ¶ 18 (2010).        To establish a prima
      facie case under the WPEA, the appellant must prove, by preponderant evidence,
      that he engaged in protected activity and that the activity was a contributing
      factor in a personnel action against him. See 5 U.S.C. § 1221(e)(1); Chambers v.
      Department of the Interior, 116 M.S.P.R. 17, ¶ 12 (2011).
¶33        The agency does not dispute that the appellant distributed envelopes
      addressed to the head of the agency to veterans, directing them to complain to the
      head of the agency about travel pay reimbursement issues. Therefore, we find
      that the appellant established by preponderant evidence that he engaged in
      protected activity.   However, the appellant failed to prove by preponderant
      evidence that his protected activity was a contributing factor in the personnel
      actions taken against him. The agency submitted affidavits from the officials that
      the appellant alleges retaliated against him by disallowing his transfer back to the
      VAMC from Florida and who did not select him for the MSA and Gardener
      positions. IAF, Tab 9 at 5-13. Each official stated that he had no knowledge of
      the appellant’s protected activity when he took the personnel action involving the
      appellant. The appellant did not rebut these affidavits, and thus, we find that he
      failed to establish by preponderant evidence the knowledge prong of the
      knowledge/timing test regarding the agency’s failure to transfer/reassign him
                                                                                        17

      back to the VAMC from Florida, and the agency’s failure to select him for the
      MSA and Gardener positions.
¶34         The official involved in the agency’s decision not to transfer the appellant
      from Florida averred that he first heard of the appellant when he called in 2013
      requesting a reassignment/transfer to the VAMC from the Florida VAMC. Id.
      at 6. The official stated further that, at that time, he had not heard about any of
      the appellant’s protected activity. Id. He stated that he informed the appellant
      that the VAMC did not have an active reassignment/transfer program, and
      encouraged the appellant to apply for vacancies at the VAMC. Id. He stated that
      the decision not to transfer/reassign the appellant back to the VAMC had nothing
      to do with his protected activity. Id. Rather, the official stated that it had been a
      longstanding practice of the VAMC not to transfer/reassign employees back to the
      VAMC and it had declined to do so in other cases as well. Id.
¶35         The official who did not select the appellant for the MSA position stated in
      an affidavit that he had no knowledge of the appellant’s protected activity when
      he made the selection for the MSA position. Id. at 10. Similarly, the official who
      did not select the appellant for the Gardener position stated in an affidavit that he
      received no information about the appellant other than his application and
      résumé, which did not include anything about the appellant’s protected activity.
      Id. at 13.
¶36         Based on our review of the evidence, we conclude that, although the
      appellant exhausted his remedies with OSC regarding his disclosure in a letter to
      the head of the agency that the BTO failed to fill a clerk vacancy, he failed to
      make a nonfrivolous allegation that his disclosure was protected under the WPA.
      We also conclude that the appellant failed to make a nonfrivolous allegation that
      he was perceived as a whistleblower, even though the fact that he wrote the letter
      to the head of the agency was known to his manager. Accordingly, we dismiss
      the appeal for lack of jurisdiction regarding these claims.
                                                                                             18

¶37         We also conclude that the appellant exhausted his remedies with OSC
      regarding his activity of distributing envelopes to patients so that they could
      complain about long wait times in the BTO, and he made a nonfrivolous
      allegation that he had a reasonable belief that this activity is protected activity
      under the WPEA. 7 However, for the reasons set forth above, we find that the
      appellant failed to make a prima facie case that the agency refused his request to
      noncompetitively transfer him back to the VAMC from Florida, and did not select
      him for the MSA and Gardener positions, in retaliation for his activity protected
      under 5 U.S.C. § 2302(b)(9)(B). Accordingly, we deny the appellant’s request for
      corrective action under the WPEA as to these personnel actions.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
            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).




      7
        In a footnote in the initial decision, the administrative judge ruled on the appellant’s
      motion to compel the agency to produce copies of documents that he signed asking to
      be moved to Cochran. ID at 4 n.1; see IAF, Tab 14. She found, based on the agency’s
      responses, that the agency had no documents responsive to the appellant’s request.
      Because we do not need to reach the issue of whether the appellant’s move to Cochran
      was voluntary, we need not determine whether the administrative judge’s discovery
      ruling was an abuse of discretion. See Vaughn v. Department of the Treasury,
      119 M.S.P.R. 605, ¶ 15 (2013) (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).
                                                                                  19

      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
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
                                                                               20

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