                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     RAJESH K. GUPTA,                                DOCKET NUMBER
                   Appellant,                        DC-1221-13-0650-W-1

                  v.

     DEPARTMENT OF HEALTH AND                        DATE: April 22, 2016
       HUMAN SERVICES,
                 Agency.



                       THIS ORDER IS NONPRECEDENTIAL 1

           Rajesh K. Gupta, North Potomac, Maryland, pro se.

           James E. Simpson, Esquire, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For
     the reasons discussed below, we GRANT the appellant’s petition for review and



     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                       2

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

                        DISCUSSION OF ARGUMENTS ON REVIEW
¶2        The appellant was the Deputy Division Director and Lab Chief for an
     agency component that is responsible for, among other things, ensuring the
     quality and safety of vaccines before they are released into the market. Initial
     Appeal File (IAF), Tab 1 at 2.     The agency terminated the appellant, and the
     appellant filed a Form 11 complaint and a stay request with the Complaints
     Examining Unit (CEU) of the Office of Special Counsel (OSC) alleging that the
     agency took numerous personnel actions against him in retaliation for protected
     whistleblowing. 2 IAF, Tab 1, Exhibits (Exs.) 13-14. On March 26, 2013, OSC
     notified the appellant that it had closed its file without taking corrective action.
     IAF, Tab 1, Ex. 18. It informed him of his right to file an IRA appeal with the
     Board. Id.
¶3        The appellant filed the instant appeal and requested a hearing. IAF, Tab 1
     at 3. After affording the appellant notice of how to establish jurisdiction over his
     appeal and taking documentary evidence and argument on the issue, the
     administrative judge dismissed the appeal for lack of jurisdiction without a
     hearing. IAF, Tab 3, Tab 14, Initial Decision (ID) at 1, 8. She found that the
     appellant failed to exhaust his administrative remedies concerning the claims that
     he was attempting to bring in his Board appeal because his submissions to OSC
     lacked sufficient specificity to form the basis for an OSC investigation.        ID
     at 6-7. The appellant has filed a petition for review, Petition for Review (PFR)
     File, Tab 5, the agency has filed a response, PFR File, Tab 9, and the appellant
     has filed a reply to the agency’s response, PFR File, Tab 10.

     2
       The Form 11 has been developed by OSC for submitting whistleblower reprisal
     complaints. OSC has also developed a Form 12, which is used to submit disclosures of
     government wrongdoing to OSC. See Clemente v. Department of Homeland Security,
     101 M.S.P.R. 519, ¶ 13 (2006).
                                                                                         3

¶4           To establish jurisdiction over an IRA appeal, an appellant must prove that
     he exhausted his administrative remedies with OSC and nonfrivolously allege
     that: (1) he engaged in whistleblowing activity by making a protected disclosure;
     and (2) the disclosure was a contributing factor in the agency’s decision to take or
     fail    to    take    a    personnel     action.      Shibuya v.   Department       of
     Agriculture, 119 M.S.P.R. 537, ¶ 25 (2013).         To satisfy the OSC exhaustion
     requirement, the appellant must inform OSC of the precise ground of his charge
     of whistleblowing, giving OSC a sufficient basis to pursue an investigation that
     might     lead   to   corrective   action.     Clarke v.   Department   of   Veterans
     Affairs, 121 M.S.P.R. 154, ¶ 12 (2014), aff’d, 623 F. App’x 106 (Fed. Cir. 2015);
     Cassidy v. Department of Justice, 118 M.S.P.R. 74, ¶ 5 (2012). An appellant may
     demonstrate exhaustion through his initial OSC complaint, evidence that he
     amended the original complaint, including but not limited to OSC’s determination
     letter and other letters from OSC referencing any amended allegations, and the
     appellant’s written responses to OSC referencing the amended allegations.
     Kukoyi v. Department of Veterans Affairs, 111 M.S.P.R. 404, ¶ 13 (2009),
     overruled on other grounds by Mason v. Department of Homeland Security, 116
     M.S.P.R. 135, ¶26 n.7 (2011).          The test of the sufficiency of an employee’s
     charges of whistleblowing to OSC is the statement that he makes in the complaint
     requesting corrective action, not his post hoc characterization of those statements.
     Ellison v. Merit Systems Protection Board, 7 F.3d 1031, 1036 (Fed. Cir. 1993);
     Clarke, 121 M.S.P.R. 154, ¶ 12.
¶5           The appellant bases his IRA appeal on 11 alleged protected disclosures.
     IAF, Tab 8.      Accordingly, with regard to each disclosure, the Board must
     determine whether the appellant: exhausted his administrative remedies before
     OSC; made nonfrivolous allegations that the disclosure was protected; and made
     nonfrivolous allegations that it was a contributing factor in a personnel action.
                                                                                          4

     Parameters of the Exhaustion Evidence
¶6         The appellant made numerous filings with OSC.                 These include a
     January 21, 2013 whistleblower complaint to OSC’s CEU, a March 1, 2013 stay
     request to the CEU, a January 21, 2013 submission to OSC’s Disclosure Unit, and
     a May 23, 2013 submission to the CEU. IAF, Tab 1, Attachment (Att.) 1; IAF,
     Tab 1, Exs. 9, 13-14.      In her exhaustion analysis, the administrative judge
     considered only the January 21, 2013 whistleblower complaint and the March 1,
     2013 stay request to OSC’s CEU. ID at 2. She reasoned that the appellant’s
     January 21, 2013 submission to the Disclosure Unit was not submitted to the CEU
     and therefore was irrelevant to a determination of whether he satisfied the
     exhaustion requirement of 5 U.S.C. § 1214(a)(3). 3           ID at 2; see Mason v.
     Department of Homeland Security, 116 M.S.P.R. 135, ¶ 16 (2011).
¶7         In reviewing the evidence that was considered by the administrative judge,
     we find that the appellant exhausted his administrative remedies before OSC as to
     six of these disclosures; specifically, disclosures 1, 4, 5, 7, 8, and 10. We find
     that the appellant did not exhaust his administrative remedies concerning
     disclosures 3 and 11. While the appellant has submitted a March 4, 2013 email

     3
       Regarding the appellant’s May 23, 2013 submission to OSC’s CEU, this submission
     does not satisfy the exhaustion requirement for this appeal. IAF, Tab 1, Att. 1. OSC
     already had closed its file on the appellant’s complaint and notified him of his Board
     appeal rights on March 26, 2013. IAF, Tab 1, Ex. 18. The close-out letter was the key
     document triggering the appellant’s right to appeal to the Board. See 5 U.S.C.
     § 1214(a)(3)(A); 5 C.F.R. § 1209.5(a). Any subsequent communications with OSC may
     have triggered a new investigation and begun a new exhaustion process, but they have
     nothing to do with the exhaustion process that concluded on March 26, 2013. On
     review, the appellant requests that the Board stay the instant appeal pending OSC’s
     action on the May 23, 2013 letter, which he alleges “concern[s] the same issues and
     facts” as the instant appeal. PFR File, Tab 1 at 4-6. The agency requests that the
     petition for review be dismissed on the same basis. PFR File, Tab 9 at 6-12. We deny
     the parties’ requests at this time because a significant period of time has elapsed
     without any update on the status of the matter before OSC. However, the parties are not
     precluded from renewing their requests before the administrative judge, who will be in
     a better position to make rulings on them; she will have both the benefit of this Order
     delineating the proper scope of the instant appeal and, presumably, updated information
     on OSC’s processing of the appellant’s May 23, 2013 letter.
                                                                                         5

     on review indicating that he did, in fact, provide CEU a copy of his January 21,
     2013 submission to the Disclosure Unit and various other documents before OSC
     closed out his whistleblower reprisal complaint, PFR File, Tab 5 at 8-9, 30,
     consideration of this evidence does not alter our finding that the appellant failed
     to exhaust his administrative remedies concerning disclosures 3 and 11.
     However, consideration of such evidence may change the exhaustion analysis
     regarding disclosures 2, 6, and 9. We do not, therefore, make findings on these
     disclosures in our jurisdictional analysis below. Rather, as specified below, the
     administrative judge on remand will conduct an exhaustion analysis concerning
     disclosures 2, 6, and 9 in light of the appellant’s March 4, 2013 email.

     Disclosure 1
¶8        In his Board appeal, the appellant alleged that he raised public health and
     safety concerns regarding the agency’s amendment to 21 C.F.R. § 610.12,
     “Sterility Test Requirements for Biological Products.”          IAF, Tab 8 at 5.
     Specifically, he alleged that he opposed the agency removing the regulatory
     requirement that vaccines undergo sterility testing at the final “bulk” stage. Id.
     He lists numerous written and oral communications through which he made this
     disclosure. Id.
¶9        We have reviewed the appellant’s original OSC complaint.              It contains
     practically no information about this or any of his other 10 alleged protected
     disclosures.   IAF, Tab 13.   The complaint merely describes these disclosures
     generically as “raising unanswered scientific issues during reviews of license
     applications and supplements that affect public safety and efficacy of our
     products,” “bringing to attention deficiencies in reviews performed by my staff,”
     “objections to wasteful spending by the Division,” and “mismanagement in the
     Division.” IAF, Tab 1, Ex. 13 at 4-5. We agree with the administrative judge
     that these statements by themselves are not sufficiently specific to provide the
     basis for an OSC investigation. ID at 3.
                                                                                             6

¶10        We also have reviewed the appellant’s March 1, 2013 stay request. IAF,
      Tab 1, Ex. 14.      Although nothing in that document refers to the appellant’s
      opposition to any regulatory amendments per se, it does refer to his continued
      advocacy for bulk stage sterility testing despite opposition from the Division
      Director, the same agency official who eventually terminated the appellant’s
      employment. Id. at 2, 11-12. Thus, the appellant informed OSC of the nature of
      the disclosure and one of the individuals to whom he made the disclosure. He
      also informed OSC of the general timeframe of the disclosure—September 2012.
      Id. at 2.    Furthermore, this stay request, in conjunction with the appellant’s
      original OSC complaint, was sufficient to apprise OSC of at least some
      subsequent personnel actions that the Division Director allegedly took against the
      appellant in retaliation, including his placement on administrative leave,
      termination from employment, and what might arguably be described as
      significant changes in duties, responsibilities, or working conditions. IAF, Tab 1,
      Ex. 13 at 5-11. We find that this information provided OSC an adequate basis to
      begin an investigation into this disclosure and its circumstances.
¶11        We further find that the appellant made a nonfrivolous allegation that he
      reasonably believed that the lack of sterility testing at the bulk stage presented a
      substantial and specific danger to public health and safety, see 5 U.S.C.
      § 2302(b)(8)(A)(ii), because it would seem on its face that some sort of sterility
      testing for vaccines is important; otherwise the agency’s regulations would not
      require it at all, see 21 C.F.R. § 610.12. The potential impact on public health
      and safety from contaminated vaccines is self-evident. The appellant’s expertise
      in the area of public health further supports our conclusion that he, at least, has
      made a nonfrivolous allegation that his belief was reasonable. IAF, Tab 8 at 6;
      see Chambers v. Department of the Interior, 602 F.3d 1370, 1379 (Fed. Cir. 2010)
      (finding    that   the   appellant’s   expertise   in   public   safety   supported   the
      reasonableness of her belief that the reallocation of police officers constituted a
      substantial and specific danger to public health and safety). He will have the
                                                                                          7

      opportunity to present proof by preponderant evidence as to whether his belief
      was reasonable at a hearing.
¶12        We also find that the appellant has made a nonfrivolous allegation through
      the knowledge/timing test that this disclosure was a contributing factor to the
      personnel actions with which the Division Director was involved from
      September 2012 up to the February 25, 2013 termination decision. IAF, Tab 1,
      Ex. 14 at 11-12; see 5 U.S.C. § 1221(e)(1) (the contributing factor element may
      be established through circumstantial evidence, such as a showing that the person
      taking the personnel action knew of the protected disclosure and the personnel
      action occurred within a period of time such that a reasonable person could
      conclude that the disclosure was a contributing factor); Gonzalez v. Department
      of Transportation, 109 M.S.P.R. 250, ¶ 20 (2008) (explaining that once an
      appellant has satisfied the knowledge/timing test, he has demonstrated that a
      protected disclosure was a contributing factor in a personnel action); Rubendall v.
      Department of Health & Human Services, 101 M.S.P.R. 599, ¶ 13 (2006) (finding
      that a gap of less than 6 months between a disclosure and a personnel action is
      sufficiently proximate to satisfy the timing prong of the knowledge/timing test).

      Disclosure 2
¶13        The appellant describes his second disclosure as protesting that the
      regulatory amendment removed a requirement to test new sterility testing
      methods against old methods to ensure that the new methods are as effective as
      the old ones.    IAF, Tab 8 at 8.    He describes this process in shorthand as
      “methodology of sterility testing.” Id. For reasons previously discussed, we will
      not make jurisdictional findings on this disclosure. See supra ¶7.

      Disclosure 3
¶14        The appellant characterizes his third disclosure as concerning a substantial
      and specific danger to public health and safety for failure to perform sterility
      testing at the bulk stage on a particular drug, Flucelvax. IAF, Tab 8 at 10. We
                                                                                       8

      have reviewed the appellant’s OSC complaint, his stay request, OSC’s
      preliminary determination letter, and the September 5, 2012 and January 23, 2013
      emails, and we find insufficient information to conclude that he provided OSC an
      adequate basis to investigate this disclosure and its attendant circumstances. IAF,
      Tab 1, Exs. 1, 10, 13-14, 17. None of these documents even contain the word
      “Flucelvax.” Although the appellant’s stay request generically refers to “release
      of lots of vaccines for healthy population without required testing,” we find that
      this was not sufficiently informative for OSC to begin an investigation
      concerning his alleged disclosures regarding the safety of Flucelvax. IAF, Tab 1,
      Ex. 14 at 1. We thus find that the appellant did not exhaust his administrative
      remedies as to disclosure 3.

      Disclosure 4
¶15        The appellant characterizes his fourth disclosure as pertaining to the lack of
      adequate sterility testing for another vaccine—Flublok. IAF, Tab 8 at 12-13. He
      brought the matter to OSC’s attention in his stay request as follows:
            Beginning in Summer 2012, [the appellant] voiced his concerns with
            the questionable safety, efficacy and potential unsafe manufacturing
            process for the Influenza Vaccine Flublok. His supervisor, [the
            Division Director], ordered him not to raise his concerns at review
            committees for this vaccine. [The appellant] asked the reviewers in
            his Division if they would administer this vaccine to themselves or
            loved ones. They all responded, “No.”
      IAF, Tab 1, Ex. 14 at 2. This articulation of the issue is not ideal; it is rather
      imprecise in that it does not provide exact dates, incidents, or documents
      connected to this disclosure. Nevertheless, it identified one of the individuals to
      whom the appellant made the disclosure and the approximate timeframe of the
      disclosure. Id. In addition, the January 23, 2013 email mentions the appellant’s
      concerns about Flublok, stating that he discussed the matter with the Division
      Director “a few days back,” and confirming in the address line that the Division
      Director, the Office Director, and several other individuals received the
      disclosure in writing. IAF, Tab 1, Ex. 10 at 1-2. The OSC complaint lists several
                                                                                      9

      allegedly retaliatory personnel actions to which the appellant alleges the Office
      and Division Directors subjected him. IAF, Tab 1, Ex. 13 at 5-11. Reading these
      documents in conjunction, we find that they provided OSC an adequate starting
      point for an investigation into disclosure 4.
¶16         For the same reasons as discussed above in connection with disclosure 1,
      we find that the appellant made a nonfrivolous allegation that he reasonably
      believed that the sterility testing was inadequate and posed a substantial and
      specific danger to public health and safety. IAF, Tab 8 at 13-14; supra ¶ 14.
¶17         We also find, for the same reasons discussed in connection with
      disclosure 1, that the appellant has made a nonfrivolous allegation through the
      knowledge/timing test that this disclosure was a contributing factor to the
      personnel actions with which the Division Director was involved from the
      summer of 2012 up to the February 25, 2013 termination decision. Supra ¶ 15.
      Disclosure 5
¶18         The appellant characterizes his fifth disclosure as reporting to upper level
      management that he had been suffering hostility and harassment in reprisal for his
      protected disclosures. IAF, Tab 8 at 15-16. We find that he exhausted this matter
      with OSC. The September 5, 2012 and January 23, 2013 emails themselves are
      more or less litanies of complaints in this regard, IAF, Tab 1, Exs. 1, 10, and
      OSC’s preliminary determination letter shows that OSC construed them as such,
      stating that they constituted “disclosures concerning harassment and a hostile
      work environment,” IAF, Tab 1, Ex. 17 at 2. The address lines of these emails
      show the individuals who received them, including the Office and Division
      Directors, IAF, Tab 1, Ex. 1 at 1, Ex. 10 at 1, and the appellant’s OSC complaint
      sets forth various personnel actions to which some of these officials allegedly
      subjected him in retaliation, IAF, Tab 1, Ex. 13 at 5-11.       We find that the
      appellant provided OSC a sufficient foundation for investigating this disclosure
      and the personnel actions that it supposedly precipitated.
                                                                                      10

¶19        We also find that the appellant made a nonfrivolous allegation that this
      disclosure evidenced a violation of law, rule, or regulation, i.e., retaliation for
      protected whistleblowing. IAF, Tab 8 at 16; see 5 U.S.C. § 2302(b)(8) (it is a
      prohibited personnel practice to retaliate against an individual for engaging in
      whistleblowing activity). The appellant alleged that he had been employed by the
      agency since September 2006, but that the alleged harassment and hostile work
      environment did not begin until he made the disclosures that are the subject of
      this appeal. IAF, Tab 8 at 16. We cannot make a definitive finding at this time
      on whether the appellant actually had a reasonable belief that the agency was
      retaliating against him for protected activity.   That determination will likely
      depend, in part, on whether the appellant reasonably believed that his other
      disclosures concerned the categories of wrongdoing set forth in 5 U.S.C.
      § 2302(b)(8)(A)(i) or (ii). Nevertheless, we find that he has made a sufficient
      showing to bring this issue to a hearing.
¶20        We further find, as with disclosures 1 and 4, that the appellant made a
      nonfrivolous allegation of contributing factor through the knowledge/timing test
      as to disclosure 5 for matters occurring between September 5, 2012, through the
      date of his termination. See supra ¶ 15.

      Disclosure 6
¶21        In his Board appeal, the appellant describes disclosure 6 as involving
      numerous irregularities with safety tests for the pandemic H5N1 vaccine. IAF,
      Tab 8 at 18. For reasons previously discussed, we will not make jurisdictional
      findings on this disclosure. See supra ¶ 7.

      Disclosure 7
¶22        The appellant describes disclosure 7 as involving a gross waste of funds by
      the agency when it purchased certain software for $600,000 and never used it.
      IAF, Tab 8 at 21. The appellant specifically mentioned this matter in his stay
      request. He informed OSC that he opposed the original purchase of the software
                                                                                                11

      in 2011 and 2012 and that “[t]his drew the ire of the [Division Director].” IAF,
      Tab 1, Ex. 14 at 2.          Although not a particularly detailed account of this
      disclosure, we find that, read in conjunction with the appellant’s original
      complaint outlining the actions that the Division Director allegedly took against
      him, it was adequate to form the basis of an OSC investigation.                  IAF, Tab 1,
      Ex. 10 at 5-10. Specifically, the appellant provided OSC with a fairly precise
      account of the nature of the disclosure, the approximate timeframe, and the name
      of the individual who allegedly retaliated against him for it. IAF, Tab 1, Ex. 14
      at 2. Thus, OSC at least had the name of an individual other than the appellant
      with whom it could follow up, as well as the basis for some questions to that
      individual.   We find that the appellant exhausted his administrative remedies
      concerning disclosure 7.
¶23        We also find that the appellant made a nonfrivolous allegation that he
      reasonably believed that the expenditure was a gross waste of funds.                      In
      particular, he alleged that the software proved to be “of limited to no use,” and
      that it was easily available for significantly less money. IAF, Tab 8 at 22. On its
      face, the expenditure of $600,000 on useless or near useless software would
      appear to be a gross waste of funds. The appellant will have the opportunity at a
      hearing to put on evidence concerning the utility of the software and the
      reasonableness       of     his   belief   in    order     to   prove     the    matter   by
      preponderant evidence.
¶24        In addition, we find that the appellant’s allegation that the Division Director
      knew about this 2011 or 2012 disclosure, coupled with its relative temporal
      proximity to the personnel actions that occurred between 2012 and the
      February 25, 2013 termination decision, is sufficient to constitute a nonfrivolous
      allegation    that   this     disclosure   was    a      contributing   factor   under    the
      knowledge/timing          test.     See    Ontivero v.       Department     of    Homeland
      Security, 117 M.S.P.R. 600, ¶ 23 (2012) (finding that a personnel action taken
                                                                                     12

      within approximately 1 to 2 years of the appellant’s disclosures satisfies the
      knowledge/timing test).

      Disclosure 8
¶25        Disclosure 8 is similar to disclosure 7. Whereas disclosure 7 involves the
      appellant’s opposition to the original purchase of the software, disclosure 8
      involves his opposition to its renewal in September 2012. The appellant apprised
      OSC of disclosure 8 in the same portion of the stay request in which he apprised
      OSC of disclosure 7. IAF, Tab 1, Ex. 14 at 2. For the same reasons as discussed
      above in connection with disclosure 7, we find that the appellant exhausted his
      administrative remedies regarding disclosure 8, made a nonfrivolous allegation
      that he reasonably believed that it concerned a gross waste of funds, and made a
      nonfrivolous allegation that the knowledge/timing test is satisfied as to the
      personnel actions that occurred thereafter involving the Division Director. Supra
      ¶¶ 22-28; IAF, Tab 8 at 23-24.

      Disclosure 9
¶26        The appellant describes disclosure 9 as involving “intellectual stealing.”
      IAF, Tab 8 at 25. Specifically, he alleges that he was an author of a study and
      that the agency submitted an abstract of that study for approval without his
      consent and with the inclusion of “unqualified individuals” for authorship credit.
      Id. He alleges that the agency’s actions constituted gross mismanagement, an
      abuse of authority, and a violation of law, rule, or regulation. Id. For reasons
      previously discussed, we will not make jurisdictional findings on this disclosure.
      See supra ¶ 7.

      Disclosure 10
¶27        The appellant describes disclosure 10 as concerning “the lack of control and
      management of critical standards used in testing and release of vaccines for
      children.”    IAF, Tab 8 at 27.   He raised this matter in his OSC stay request
      as follows:
                                                                                      13

            Over several years, [the appellant] shared his concerns that there was
            a lack of control of management of critical standards used in testing
            and release of childhood vaccines because the agency had been
            relying on manufacturers for this information. Again, [the Division
            Director] supported the appellant at first, but his support flagged
            through the latter part of 2012.
      IAF, Tab 1, Ex. 14 at 2.   This explanation of the disclosure is not particularly
      detailed, but the appellant explained that he raised this matter over the course of
      several years and that it was not until “the latter part of 2012” that he lost his
      Division Director’s support.   Id.   Thus, we find the appellant gave OSC the
      subject matter of the disclosure at issue, the approximate timeframe of the
      disclosure, the name of an individual who knew of the disclosure, and through the
      appellant’s original complaint, a series of personnel actions that that individual
      allegedly took against the appellant in retaliation. IAF, Tab 1, Ex. 13 at 5-11,
      Ex. 14 at 2.    This was sufficient information for OSC to follow up on the
      allegation and begin an investigation.     We therefore find that the appellant
      exhausted his administrative remedies regarding disclosure 10.
¶28        We also find that the appellant made a nonfrivolous allegation that he
      reasonably believed that his disclosure concerned a substantial and specific
      danger to public health and safety.    IAF, Tab 8 at 27-28.      That dangerous or
      ineffective childhood vaccines present such a danger is self-evident. The ultimate
      question of whether the appellant reasonably believed that vaccine manufacturers
      were not an appropriate source for these criteria will be resolved after further
      development of the record, including the appellant’s requested hearing.
¶29        We further find, for the reasons explained in connection with disclosure 1
      above, that the appellant has made a nonfrivolous allegation of the contributing
      factor element for disclosure 10 through the knowledge/timing test. Supra ¶ 15.

      Disclosure 11
¶30        The appellant describes disclosure 11 as concerning various employees’
      falsification of time cards. Although this subject matter would doubtless qualify
                                                                                           14

      as a protected disclosure, we find that the appellant did not exhaust his
      administrative    remedies     for   disclosure 11.       Neither    the    appellant’s
      correspondence with OSC nor OSC’s preliminary determination letter indicates
      that the appellant informed OSC of this disclosure.

      Guidance for Adjudication on Remand
¶31         For these reasons, we find that the appellant has established jurisdiction
      over his appeal and we remand it for further adjudication. Because this appeal is
      complex, we believe that further adjudication on remand will benefit from the
      following guidance to the administrative judge: For disclosures 1, 4, 5, 7, 8, and
      10, the appellant has exhausted his administrative remedies with OSC and made
      nonfrivolous allegations that they were protected. The appellant also has made a
      nonfrivolous allegation that they were contributing factors in the personnel
      actions that the agency took against him. 4
¶32         There are at least two personnel actions involved in this appeal. First is the
      appellant’s February 15, 2014 placement on administrative leave.           IAF, Tab 1,
      Ex. 11; see Usharauli v. Department of Health & Human Services, 116 M.S.P.R.
      383, ¶ 14 (2011) (finding that placement on administrative leave is a “personnel
      action” for purposes of an IRA appeal).           Second is the February 25, 2012

      4
        As previously noted, the administrative judge did not consider the appellant’s January
      21, 2013 submission to the Disclosure Unit because there was no indication that the
      appellant had provided it to the CEU. For the first time on review, the appellant has
      submitted a March 4, 2013 email indicating that he provided the CEU with a copy of his
      submission to the Disclosure Unit and various other documents before OSC closed out
      his whistleblower reprisal complaint. PFR File, Tab 5 at 8-9, 30. Because the evidence
      that the appellant submitted for the first time on review shows that he did, in fact,
      provide CEU with his January 21, 2013 Form 12 complaint to the Disclosure Unit, and
      because the appellant alleged below that he provided his January 21, 2013 submission
      to the CEU, the administrative judge should consider this evidence in determining
      whether the appellant exhausted his administrative remedies regarding disclosures 2, 6,
      and 9. The administrative judge should also consider the various documents attached to
      the appellant’s March 4, 2013 email to the CEU in her exhaustion analysis. If the
      administrative judge determines that the appellant exhausted his administrative
      remedies concerning any of these disclosures, she should then determine whether the
      appellant established jurisdiction with regard to the disclosure.
                                                                                         15

      termination decision.     IAF, Tab 1, Ex. 12; see 5 U.S.C. § 2302(a)(2)(A)(iii)
      (disciplinary or corrective action constitutes a personnel action).
¶33         There also may be a third personnel action involved. The appellant alleges
      that the agency subjected him to a “hostile work environment.” 5 IAF, Tab 8 at 6,
      14, 17, 22, 24, 28. The creation of a hostile work environment is a personnel
      action for purposes of the Whistleblower Protection Act. Savage v. Department
      of the Army, 122 M.S.P.R. 612, ¶ 23 (2015); see 5 U.S.C. § 2302(a)(2)(A)(xii).
      The appellant alleges that the agency, among other things, reassigned his staff to
      work for other supervisors, encouraged his staff to be insubordinate to him,
      denied him the opportunity to participate at a meeting in person, encouraged his
      staff to have their work reviewed by the Division Director rather than by the
      appellant, recommended some of his staff members for promotions and awards
      without his input, revised his job description so that nearly all of his duties were
      performed “at the direction of the Division Director,” gave other individuals
      credit for his work, accused him of propagating a “culture of intimidation,” and
      unceremoniously escorted him from the building when it placed him on
      administrative leave. IAF, Tab 1, Ex. 10 at 5-11. Although it is questionable
      whether any one of these actions alone would constitute a significant change in
      duties, responsibilities, or working conditions to create an actionable hostile work
      environment, we find that the appellant has made a nonfrivolous allegation that
      such was their cumulative effect. See Holderfield v. Merit Systems Protection
      Board, 326 F.3d 1207, 1209 (Fed. Cir. 2003) (holding that numerous agency
      actions   may   amount     to   a   covered   personnel    action     under   5 U.S.C.
      § 2302(a)(2)(A)(xii) collectively, even if they are not covered personnel actions



      5
        The appellant refers the Board to “Appendix B of Appeal” for further information on
      his allegations of a hostile work environment. IAF, Tab 8 at 6, 14, 17, 22, 24, 28. We
      were unable to locate an “Appendix B” in the initial appeal. We instead have referred
      to his initial complaint to OSC, which discusses the matter in some detail.
                                                                                              16

      individually). 6 The appellant alleges that two individuals were involved in the
      allegedly retaliatory actions—the Office Director and the Division Director. 7
      IAF, Tab 1, Ex. 13 at 11.
¶34         On remand, the administrative judge shall conduct a hearing. See Aquino v.
      Department of Homeland Security, 121 M.S.P.R. 35, ¶ 9 (2014) (stating that once
      an appellant establishes jurisdiction over his IRA appeal, he is entitled to a
      hearing on the merits of his claim). She shall determine whether the appellant
      met his burden of proving by preponderant evidence that disclosures 1, 4, 5, 7, 8,
      and 10 were protected (if she determines that the appellant has met his
      jurisdictional burden concerning disclosures 2, 6, and/or 9, the administrative
      judge shall also determine whether the appellant proved by preponderant evidence
      that the disclosure(s) were protected). If the administrative judge finds that any
      of these disclosures were protected, then she shall decide whether the appellant
      established through the knowledge/timing test that they were contributing factors
      to the personnel actions that the agency took against the appellant after the date
      of his disclosures.     In this regard, the administrative judge shall determine


      6
        The appellant alleged to OSC that the agency subjected him to two other personnel
      actions—a lowered performance rating for calendar year 2011, IAF, Tab 1, Ex. 13 at 5,
      8-9; see 5 U.S.C. § 2302(a)(2)(A)(viii) (a chapter 43 performance evaluation is a
      personnel action), and an October 1, 2012 letter warning him that “further instances of
      misconduct . . . may result in a formal disciplinary action,” IAF, Tab 1, Ex. 13 at 5, 8-9;
      see Campo v. Department of the Army, 93 M.S.P.R. 1, ¶¶ 7-8 (2002) (finding that a
      memorandum of warning constituted a personnel action because it threatened to take a
      disciplinary action). However, when the administrative judge ordered the appellant to
      identify the personnel actions that the agency took against him in reprisal, IAF, Tab 3
      at 5, the appellant did not list these as separate personnel actions, see IAF, Tab 8.
      Nevertheless, these matters may be relevant to the appellant’s claim that the agency
      subjected him to a significant change in duties, responsibilities, or working conditions.
      7
        The appellant states in his Board appeal that “Other [agency] managers” contributed to
      the hostile work environment by pressuring his subordinates to “testify against him.”
      IAF, Tab 8 at 7, 14, 17, 22, 24, 28. He has not specifically identified these “other”
      managers, and he has not made a nonfrivolous allegation that anyone other than the
      Office Director and Division Director were involved in effecting personnel actions
      against him.
                                                                                     17

      whether the appellant’s claim of a “hostile work environment” amounts to a
      personnel action under 5 U.S.C. § 2302(a)(2)(A)(xii). She also shall determine,
      for each protected disclosure, whether the Office Director, the Division Director,
      or both, satisfied the knowledge element of the test and were involved in
      effecting the personnel actions.   If the appellant establishes by preponderant
      evidence that a protected disclosure was a contributing factor to a personnel
      action, then and only then shall the administrative judge proceed to the issue of
      whether the agency established by clear and convincing evidence that it would
      have taken the personnel action in the absence of the protected disclosure.
      See 5 U.S.C. § 1221(e)(2); Clarke, 121 M.S.P.R. 154, ¶ 19 n.10.

                                          ORDER
¶35        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.
