                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JEFFERY S. MUSSELMAN,                           DOCKET NUMBER
                   Appellant,                        DA-1221-14-0499-W-3

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: June 17, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Jeffery S. Musselman, Vilonia, Arkansas, pro se.

           Shonte Fletcher, Esquire, Aberdeen Proving Ground, Maryland, 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 in this individual right of action (IRA)
     appeal. Generally, we grant petitions such as this one only when: the initial
     decision contains erroneous findings of material fact; the initial decision is based


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     on an erroneous interpretation of statute or regulation or the erroneous application
     of the law to the facts of the case; the administrative judge’s rulings during either
     the course of the appeal or the initial decision were not consistent with required
     procedures or involved an abuse of discretion, and the resulting error affected the
     outcome of the case; or new and material evidence or legal argument is available
     that, despite the petitioner’s due diligence, was not available when the record
     closed. See title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
     § 1201.115). After fully considering the filings in 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. Except as
     expressly MODIFIED by this Final Order to find that the appellant engaged in
     additional protected activity but nonetheless failed to prove that it was a
     contributing factor to any personnel action, we AFFIRM the initial decision.
¶2         The appellant filed this IRA appeal, alleging that he was subjected to
     improper retaliation for engaging in protected activity. Musselman v. Department
     of the Army, MSPB Docket No. DA-1221-14-0499-W-1, Initial Appeal File (IAF),
     Tab 1.   He alleged that each of the following disclosures and activities were
     protected: (a) on June 28, 2013, he arranged a teleconference between his
     Director, K.N., and a number of term employees; (b) on June 28, 2013, he
     informed K.N. that loss of the term employees could result in mission failure and
     result in a gross waste of funds; (c) on April 5, 2011, he reported an employee’s
     sexual harassment complaint to his Program Manager; (d) on July 18, 2011, he
     reported that his Program Manager was engaged in time fraud; and (e) on October
     24, 2011, he prepared a memorandum in relation to an equal employment
     opportunity (EEO) complaint filed by another individual. 2 See id. at 11-15. The
     appellant further alleged that, because of these activities, he was relieved of his


     2
       For the sake of simplicity and clarity, this decision follows the initial decision by
     identifying the appellant’s disclosures and activities as (a)-(e).
                                                                                        3

     duties as Acting Program Manager and denied a temporary promotion. IAF, Tab
     1 at 4, Tab 11 at 4.
¶3         The administrative judge found that the appellant met his jurisdictional
     burden, but twice dismissed the matter, without prejudice, to postpone
     adjudication due to the unavailability of witnesses.          IAF, Tab 37 at 1-2;
     Musselman      v.      Department   of    the    Army,     MSPB       Docket     No.
     DA-1221-14-0499-W-2, Refiled Appeal File (RAF-I), Tab 36 at 2-3; Musselman
     v. Department of the Army, MSPB Docket No. DA-1221-14-0499-W-3, Refiled
     Appeal File (RAF-II), Tab 6, Initial Decision (ID) at 1 n.1. Ultimately, after
     holding the requested hearing, the administrative judge denied the appellant’s
     request for corrective action. ID at 2, 30. Concerning the appellant’s allegations
     that he had made protected disclosures or engaged in protected activity, (a)-(e),
     the administrative judge first found that (a), (c), and (e) were not protected
     activity or disclosures. ID at 10-14, 16-18. She also found that, while (d) was a
     protected disclosure, the appellant failed to prove that it was a contributing factor
     to any personnel action. ID at 18-19. Finally, the administrative judge found that
     (b) was a protected disclosure, and the appellant proved that it was a contributing
     factor to the removal of his “acting” duties and the denial of his temporary
     promotion, ID at 14-16, 18-19, but the agency proved by clear and convincing
     evidence that it would have taken the personnel actions notwithstanding the
     disclosure, ID at 20-30.
¶4         The appellant has filed a petition for review. Musselman v. Department of
     the Army, MSPB Docket No. DA-1221-14-0499-W-3, Petition for Review (PFR)
     File, Tab 1. The agency has filed a response. PFR File, Tab 3.
     The Board will not consider the appellant’s new argument and evidence
     concerning activity (a), his arrangement of a teleconference.
¶5         The appellant arranged a teleconference on June 28, 2013, between K.N.
     and a number of term employees that wanted to discuss their impending release.
     IAF, Tab 5 at 5-7. He alleged that this was protected activity under 5 U.S.C.
                                                                                       4

     § 2302(b)(9)(B). IAF, Tab 11 at 4. The administrative judge determined that it
     was not. ID at 10-14.
¶6        Section 2302(b)(9)(B) makes it unlawful for an individual to take, fail to
     take, or threaten to take or fail 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); Alarid v. Department of the Army, 122 M.S.P.R. 600, ¶ 10
     (2015). 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). Alarid, 122 M.S.P.R. 600, ¶ 10.
¶7        Below, the appellant did not assert that he was representing the term
     employees in any negotiated grievance procedures. ID at 13; RAF-II, Tab 3 at 7.
     Instead, he argued that he was facilitating the term employees’ request to discuss
     the end of their terms under the agency’s Open Door policy statement. ID at 12;
     IAF, Tab 11 at 4, Tab 26 at 5; RAF-II, Tab 3 at 7.          That policy statement
     indicates that the doors to the Command Sergeant Major’s and Brigadier
     General’s offices are open “to air any issues, grievances, or to offer suggestions
     that have not been adequately addressed through the Chain of Command.” IAF,
     Tab 26 at 5. The administrative judge found that the Open Door policy was not a
     “law, rule, or regulation” granting employees any “appeal, complaint, or
     grievance right” under 5 U.S.C. § 2302(b)(9). ID at 13.
¶8        On review, the appellant does not dispute the administrative judge’s
     conclusion about the Open Door policy. Instead, he argues, for the first time, that
     the term employees were covered by a collective bargaining agreement (CBA).
     PFR File, Tab 1 at 4. He submitted a copy of that CBA, and asserts that he was
     complying with the grievance procedures portion of the agreement by scheduling
     the June 28, 2013 teleconference. Id. at 4, 8-53. However, the Board generally
     will not consider an argument raised for the first time in a petition for review
     absent a showing that it is based on new and material evidence not previously
                                                                                                           5

      available despite the party’s due diligence.                 Banks v. Department of the Air
      Force, 4 M.S.P.R. 268, 271 (1980). Because the appellant failed to show that his
      new argument and evidence were previously unavailable, we will not address
      them further, and we will not disturb the administrative judge’s conclusion that
      (a) was not protected.
      We modify the initial decision to find that the activities (c) and (e) were protected
      activity, but the appellant failed to prove that either was a contributing factor in a
      personnel action.
¶9           In his initial appeal, the appellant alleged that he reported an employee’s
      sexual harassment complaint to his Program Manager on April 5, 2011, and he
      prepared a memo in relation to an EEO complaint filed by another individual on
      October 24, 2011. IAF, Tab 1 at 14-15. The administrative judge found that
      those activities, (c) and (e), were not protected because they occurred prior to the
      enactment of the Whistleblower Protection Enhancement Act of 2012 (WPEA),
      Pub. L. No. 112-19, 126 Stat. 1465. ID at 16-18. On review, the appellant seems
      to argue otherwise. PFR File, Tab 1 at 5.
¶10          Pursuant to the WPEA, which became effective on December 27, 2012,
      Congress expanded the grounds on which an appellant may file an IRA appeal
      with      the   Board.        See     Hooker       v.    Department      of    Veterans        Affairs,
      120 M.S.P.R. 629, ¶ 9 (2014); WPEA § 101(b)(1)(A). Prior to the enactment of
      the WPEA, an appellant only could file an IRA appeal with the Board based on
      allegations of whistleblower reprisal under 5 U.S.C. § 2302(b)(8). See Wooten v.
      Department of Health & Human Services, 54 M.S.P.R. 143, 146 (1992),
      superseded by statute as stated in Carney v. Department of Veterans Affairs,
      121 M.S.P.R. 446, ¶ 5 (2014). Following the WPEA’s enactment, an appellant
      also may file an IRA appeal with the Board concerning alleged reprisal based on
      certain     other   classes     of     protected        activity   as   defined    in      5    U.S.C.
      § 2302(b)(9)(A)(i),      (B),       (C),   and   (D).         5    U.S.C.     § 1221(a);       Hooker,
      120 M.S.P.R. 629, ¶ 9.          However, the Board has declined to give retroactive
                                                                                         6

      effect to the new IRA appeal rights provided under the WPEA for alleged
      violations of section 2302(b)(9)(A), (B), or (C). See Hooker, 120 M.S.P.R. 629,
      ¶¶ 11-15.
¶11         The administrative judge determined that (c) and (e) were not protected
      because both occurred prior to the enactment of the WPEA. ID at 17. In doing
      so, the administrative judge erred.      The date of the purported retaliation is
      dispositive, not the date of the protected activity. See Hooker, 120 M.S.P.R. 629,
      ¶ 15 (explaining that the Board would not apply the WPEA retroactively for
      violations of section 2302(b)(9)(B) because doing so would increase a party’s
      liability for past conduct).    Because the purported retaliation, the removal of
      “acting” duties and the denial of a temporary promotion, occurred in 2013, after
      the   enactment      of   the    WPEA,      both     are      covered   by   5 U.S.C.
      §§ 1221(a), 2302(b)(9)(B).      IAF, Tab 5 at 4.           We, therefore, vacate the
      administrative judge’s findings to the contrary.           Nevertheless, based on our
      analysis below, we find that the appellant’s claim still fails.
¶12         To establish a prima facie case of reprisal, an 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); Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, ¶ 25
      (2013).     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, that it would have taken the same personnel action in the
      absence of the protected activity.         See 5 U.S.C. § 1221(e)(2); Shibuya,
      119 M.S.P.R. 537, ¶ 32.
¶13         Although we find that (c) and (e) were protected activities, the appellant
      failed to prove that either was a contributing factor in the removal of his “acting”
      duties or the denial of his temporary promotion.           An appellant can establish
      contributing factor by showing that the official responsible for the personnel
      action knew of the protected activity and took the personnel action within a
                                                                                         7

      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 this case, the
      administrative judge determined that even if (c) and (e) were protected, the
      appellant failed to show that K.N., the individual responsible for removing his
      “acting” duties, had any knowledge of the same. ID at 19 n.9. In his petition, the
      appellant asserts that K.N. was copied on emails “detailing EEOC and sexual
      assault cases in which the appellant provided sworn testimony.” PFR File, Tab 1
      at 5. However, he failed to identify any evidence that shows K.N. knew of the
      appellant’s involvement, and we are aware of none. See id.; Tines v. Department
      of the Air Force, 56 M.S.P.R. 90, 92 (1992) (finding that a petition for review
      must contain sufficient specificity to enable the Board to ascertain whether there
      is a serious evidentiary challenge justifying a complete review of the record);
      Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133 (1980) (determining that,
      before the Board will undertake a complete review of the record, the petitioning
      party must explain why the challenged factual determination is incorrect, and
      identify the specific evidence in the record which demonstrates the error), review
      denied, 669 F.2d 613 (9th Cir. 1982) (per curiam); cf. IAF, Tab 32 at 18; RAF-I,
      Tab 27 at 20-21. Similarly, to the extent that individuals other than K.N. were
      responsible for the denial of the appellant’s temporary promotion, which the
      agency attributes to a hiring freeze stemming from sequestration, see, e.g., IAF,
      Tab 16 at 7-8, 22-28, the appellant failed to show that such individuals had any
      knowledge of (c) or (e). Accordingly, we find that the appellant failed to prove,
      by preponderant evidence, that activities (c) or (e) were a contributing factor to
      the agency removing his “acting” duties or denying his temporary promotion.
      The administrative judge properly found that the agency met its burden of proof.
¶14        Although the administrative judge found that the appellant established a
      prima facie case of whistleblower retaliation concerning disclosure (b), she also
      found that the agency met its burden of proving that it would have removed the
                                                                                        8

      appellant’s “acting” duties and denied his temporary promotion notwithstanding
      that disclosure. ID at 20-30. The appellant appears to dispute that finding on
      review. PFR File, Tab 1 at 5-7. We find no merit to his arguments.
¶15        Clear and convincing evidence “is that measure or degree of proof that
      produces in the mind of the trier of fact a firm belief as to the allegations sought
      to be established.” 5 C.F.R. § 1209.4(e). In determining whether an agency has
      proven, by clear and convincing evidence, that it would have taken an action
      notwithstanding an employee’s whistleblowing, the Board will consider all of the
      relevant factors, including the following:      (1) the strength of the agency’s
      evidence in support of its action; (2) the existence and strength of any motive to
      retaliate on the part of the agency officials who were involved in the decision;
      and (3) any evidence that the agency takes similar actions against employees who
      are not whistleblowers but who are otherwise similarly situated. Carr v. Social
      Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). The Board must
      consider all the pertinent record evidence in making this determination, both
      evidence that supports the agency’s case and evidence that detracts from it. See
      Whitmore v. Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012).
¶16        In short, the administrative judge found that the agency presented evidence
      of legitimate reasons for its personnel actions, including K.N.’s dissatisfaction
      with the appellant’s performance of his duties and an agency-wide hiring freeze.
      ID at 21-24, 27-29. She also found that the pertinent agency officials had little
      motive to retaliate against the appellant because his disclosure about the negative
      impact of losing term employees was a widely held view that had been conveyed
      previously by others and there had been prior attempts to retain those term
      employees—attempts that were unsuccessful due to the budget realities of
      sequestration. ID at 20-21, 26-27. Further, the administrative judge found that
      the agency took similar actions against employees who were not whistleblowers
      but were otherwise similarly situated. ID at 28-29.
                                                                                          9

¶17         On review, the appellant argues that, while the agency presented evidence
      that K.N.’s displeasure with his performance of “acting” duties stemmed from the
      appellant permitting an outside contractor to participate in an internal call without
      K.N.’s knowledge, 3 doing so was required by the agency’s CBA and the National
      Labor Relations Act. PFR File, Tab 1 at 6-7. However, we need not address this
      argument because the appellant failed to raise it below. ID at 24-25; RAF-II, Tab
      3 at 7; Banks, 4 M.S.P.R. at 271.
¶18         Next, the appellant reasserts that, although the agency presented evidence
      that his temporary promotion was denied due to a hiring freeze, there were some
      exceptions to the hiring freeze. PFR File, Tab 1 at 5. The administrative judge
      addressed this matter below, finding numerous witnesses credible when they
      testified that only the U.S. Army Forces Command made exceptions to the hiring
      freeze, those exceptions were limited, and exceptions were not made for
      temporary promotions.        ID at 21-24, 28-29.     That testimony included the
      appellant’s supervisor reporting that his own temporary promotion was denied,
      along with the temporary promotions of the appellant and two other subordinates.
      ID at 21-22. It also included a Human Resources Specialist reporting that those
      specific temporary promotions were denied due to the hiring freeze and indicating
      that he was not aware of any temporary promotions being approved during the
      relevant period. ID at 23.
¶19         The Board must give deference to an administrative judge’s credibility
      determinations when they are based, explicitly or implicitly, on the observation of
      the demeanor of witnesses testifying at a hearing; the Board may overturn such
      determinations only when it has “sufficiently sound” reasons for doing so. Haebe
      v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). Although the

      3
        It appears that the presence of the U.S. Army Corps of Engineers contractor on the
      teleconference was perceived as problematic because the call included discussions
      about the agency’s ability to continue bidding on and performing reimbursable work for
      the U.S. Army Corps of Engineers if the term employees were released. See, e.g., IAF,
      Tab 5 at 22-23.
                                                                                          10

      appellant has reasserted that the agency made some exceptions to its hiring
      freeze, generally, he has failed to present any basis for disturbing the
      administrative judge’s decision to credit the associated explanations provided by
      the testifying witnesses.     See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98,
      105-06 (1997) (finding no reason to disturb the administrative judge’s findings
      when she considered the evidence as a whole, drew appropriate inferences, and
      made reasoned conclusions); Broughton v. Department of Health & Human
      Services, 33 M.S.P.R. 357, 359 (1987) (same). Accordingly, we agree with the
      administrative judge’s determination that the agency proved, by clear and
      convincing evidence, that it would have removed the appellant’s “acting” duties
      and denied his temporary promotion, notwithstanding his protected disclosure.
¶20         In the absence of any other arguments, we find no other basis for disturbing
      the initial decision.

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
             The initial decision, as supplemented by this Final Order, constitutes the
      Board's final decision in this matter. 5 C.F.R. § 1201.113. 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).
             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
                                                                                 11

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 United States 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 United States 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 United States
Code, at our website, http://www.mspb.gov/appeals/uscode.htm.            Additional
information about the United States 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
                                                                               12

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.
