                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JAMES A. CORRIVEAU,                             DOCKET NUMBER
                   Appellant,                        PH-1221-14-0377-W-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: September 4, 2015
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           James G. Noucas, Jr., Esquire, Portsmouth, New Hampshire, for the
             appellant.

           Debra M. Evans, Esquire, Norfolk, Virginia, 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
     denied his request for corrective action. For the reasons discussed below, we
     GRANT the appellant’s petition for review, vacate the initial decision, 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 is a Pipefitter, WG-10, at the agency’s Portsmouth Naval
     Shipyard, Naval Facilities Engineering Command (NAVFAC). Initial Appeal File
     (IAF), Tab 1 at 2. He filed this individual right of action (IRA) appeal asserting
     that the agency took personnel actions against him, or failed to take certain
     personnel actions, in retaliation for his whistleblowing. Id. On or about May 28,
     2010, the appellant contacted the NAVFAC Headquarters Hotline and asserted
     that he and other employees in the Public Works Department believed they were
     experiencing “endless harassment” at the hands of their supervisors. IAF, Tab 49
     at 17-19. Three days earlier, he and three of his colleagues signed a letter to U.S.
     Senators Susan Collins and Olympia Snowe alleging that they were denied “high
     pay”; 2 received a letter of reprimand for using a government vehicle to drive to an
     on-site gym, 3 whereas other employees were not disciplined for similar conduct;
     were denied “fill-in time,” i.e., the opportunity to serve as acting supervisors to
     gain experience; and were not selected for several positions at the shipyard. Id.
     at 33-36.
¶3           The agency held a June 15, 2010 meeting with the appellant and his
     colleagues who signed the letter. Id. at 42. The meeting was attended by all four
     signers, as well as C.M., a Labor Relations Specialist; R.G., Production Division
     Manager; and C.R., Chief Steward.       Id.; see IAF, Tab 15 at 11-12; Hearing
     Compact Disc (HCD) (testimony of C.R.). On July 28, 2010, the appellant sent a
     follow up letter to Senator Collins stating that nothing had been resolved at the



     2
       “High pay” is supplemental pay received for performing duties under hazardous
     conditions. IAF, Tab 49 at 33.
     3
         IAF, Tab 49 at 241-43.
                                                                                       3

     meeting because R.G., one of the subjects of the employees’ complaint, had been
     in attendance. IAF, Tab 49 at 46.
¶4        The appellant filed a complaint with the Office of Special Counsel (OSC) in
     mid-September 2010. IAF, Tab 4 at 20. He alleged that he: (1) received a letter
     of reprimand for using a government vehicle to drive to an on-site gym, but had
     not first been warned against doing so, and that the letter would remain in his file
     for 2 years, even though he initially was told that it would remain there for
     1 year; (2) was denied fill-in time; (3) was denied leadership training;
     (4) received an illegal performance appraisal from R.G. on August 2, 2010; 4 and
     (5) was told that R.G. stated on July 28, 2010, that the four June 15, 2010 meeting
     participants had “a bullseye on their backs,” and that he intended to “get every
     one of them.” IAF, Tab 1, Exhibit 6; IAF, Tab 4 at 34, Tab 49 at 291-92.
¶5        OSC advised the appellant on November 30, 2010, that it had terminated its
     inquiry into his allegations and that he had the right to seek corrective action
     from the Board within 65 days after the date of the letter. IAF, Tab 4 at 10. He
     did not file a Board appeal at that time.       Instead, he filed a Board appeal
     challenging his nonselection for the position of Performance Assessment
     Representative. See Corriveau v. Department of the Navy, MSPB Docket No.
     PH-3443-10-0542-I-1, Initial Decision (Sept. 27, 2010) (hereinafter Corriveau I)
     (located in IAF, Tab 4 at 11-15).      The administrative judge issued an initial
     decision dismissing the appeal on September 27, 2010, finding that the appellant
     failed to allege any basis for the Board’s jurisdiction. Id. The appellant did not
     seek review and so the initial decision became the Board’s final decision.
¶6        The    appellant    again    contacted    his   elected   representatives    in
     September 2012.     He alleged he was passed over for selection for several
     positions for which he applied because he asked for an investigation of certain
     agency practices. IAF, Tab 49 at 52-53. He subsequently sent a similar letter by
     4
       The appellant alleged that the appraisal was illegal because R.G., and not his
     immediate supervisor, completed it. IAF, Tab 4 at 34; see IAF, Tab 49 at 201-06.
                                                                                        4

     email to Congresswoman Chellie Pingree, and he also recontacted Senator
     Collins. Id. at 54-55.
¶7        The appellant filed a second complaint with OSC on March 21, 2013. IAF,
     Tab 1 at 4.    Therein, he named R.G. and J.W., Head of the Public Works
     Department, as the responsible agency officials. Id. at 21. He included personnel
     actions alleged in his 2010 complaint and also asserted that he: (1) was denied
     training since February 2011; (2) applied for and was offered a Performance
     Assessment Representative position, but declined the position because it was
     temporary; and (3) was not selected for 16 positions between December 4, 2011,
     and December 20, 2012. Id. at 38-40, 101-29. In a September 16, 2013 letter
     responding to the complaint, OSC advised the appellant that it would “not revisit
     the allegations and personnel actions that . . .         [were] already analyzed in
     connection with [his] prior complaint.”     Id. at 11.    In its September 30, 2013
     letter closing the file, OSC stated that the personnel actions included in the
     appellant’s complaint were nonselections for several promotion positions, 5 denial
     of the opportunity to serve as an acting supervisor, and the agency’s failure to pay
     him an on-the-spot award. Id. at 9. The appellant filed this appeal. IAF, Tab 1.
¶8        After a hearing, the administrative judge denied the appellant’s request for
     corrective action. IAF, Tab 67, Initial Decision (ID) at 1, 16. She found that the
     Board’s jurisdiction was limited to the issues raised for the first time in the 2013
     OSC complaint because OSC declined to reconsider personnel actions that the
     appellant raised in the 2010 complaint. ID at 5-6; see IAF, Tab 47 at 3. She
     noted that the appellant failed to pursue his Board appeal rights for those matters
     after OSC’s investigation ended.      ID at 6; see IAF, Tab 47 at 3.       She thus
     concluded that he failed to exhaust OSC procedures when he reasserted those


     5
       OSC identified the following positions:      Production Shop Planner, General
     Maintenance Supervisor, Production Control, Engineering Technician, Utilities Billing
     Analyst, Administrative Specialist, and Base Support Vehicles and Equipment Site
     Director. IAF, Tab 1 at 9.
                                                                                             5

     matters in 2013. ID at 5-6. She likewise found that the nonselection that was the
     subject of Corriveau I was not properly before the Board, nor were any of the
     nonselections he had grieved through negotiated grievance procedures. ID at 6;
     see IAF, Tab 47 at 3. The administrative judge assumed for the sake of argument
     that each of the appellant’s alleged whistleblowing disclosures met the legal
     definition of a protected disclosure. 6      ID at 8-9.    She found that the agency
     produced credible evidence that the appellant was not eligible, or did not make
     the certificate of eligibles, for any of the positions for which he alleged he had
     not been selected in his 2013 complaint, with the exception of the Maintenance
     Supervisor position filled in August 2012. ID at 9.
¶9         Next, the administrative judge found, regarding the appellant’s assertion
     that he was not offered fill-in time, that no employee from his work group had
     been granted that opportunity during the period in question. ID at 12. She also
     found that, because he had chosen to grieve an incident where he had been denied
     fill-in time, see IAF, Tab 4 at 8-9, the Board lacks jurisdiction over that matter,
     ID at 13; see 5 U.S.C. § 7121(g). 7 She determined that, although the appellant
     asserted in his 2010 OSC complaint that he was denied leadership training, he had
     not enrolled in such training even when it was offered. ID at 13; see IAF, Tab 4
     at 34, Tab 49 at 291. As for the on-the-spot award, she found that he eventually
     received the disputed award and that the amount of the award had doubled during
     the delay. ID at 13-14. She further concluded that the appellant failed to show
     that his disclosures contributed to his nonselection or to R.G.’s failure to allow
     him fill-in time. ID at 14-15. Finally, the administrative judge found that the
     appellant did not show that R.G. had engaged in a pattern of harassing behavior,

     6
       The administrative judge also found, however, that one of the alleged protected
     disclosures occurred after all of the alleged personnel actions took place, and thus could
     not have been a contributing factor for any of those actions. ID at 9.
     7
       The administrative judge erroneously cited 5 U.S.C. § 7121(d), which pertains to
     complaints that agency personnel committed prohibited personnel practices
     encompassed under 5 U.S.C. § 2302(b)(1). ID at 6, 13.
                                                                                        6

      as the appellant alleged. Id.    The appellant filed the petition for review now
      before the Board. Petition for Review (PFR) File, Tab 1.
      Applicable Law
¶10        The Board may review an IRA appeal brought under the Whistleblower
      Protection Act and the Whistleblower Protection Enhancement Act (WPEA) if the
      appellant satisfies the jurisdictional requirements for bringing such an appeal.
      See 5 U.S.C. §§ 1214(a)(3), 1221(a). The appellant must first prove that he has
      exhausted his administrative remedies before OSC and then allege nonfrivolously
      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 as defined by 5 U.S.C. § 2302(a).           5 U.S.C.
      § 1221(e)(1); Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed.
      Cir. 2001). If he establishes jurisdiction, the Board will consider his appeal on
      the merits and he will be required to prove the allegations by preponderant
      evidence.
¶11        If he meets his burden of proof, then the burden shifts to the agency to
      prove by clear and convincing evidence that it would have taken the same
      personnel action in the absence of the disclosure. 5 U.S.C. § 1221(e)(2). To
      consider properly whether the agency has met its burden of proof, the Board must
      carefully weigh all of the evidence, including the evidence brought by the
      appellant that would fairly detract from such a finding. Whitmore v. Department
      of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012). The Board errs when it fails to
      “evaluate all the pertinent evidence in determining whether an element of a claim
      or defense has been proven adequately” because such omissions leave the
      reviewing court too little basis upon which to decide whether substantial evidence
      exists to support the Board’s judgment. Id. Here, we find that the administrative
      judge’s analysis was insufficiently detailed to support appellate review.
                                                                                              7

      Protected Disclosures and Personnel Actions
¶12         The list of protected disclosures and personnel actions before the Board was
      affected by the appellant’s filing of an earlier complaint with OSC, a separate
      Board appeal, and his grievances brought through negotiated grievance
      procedures.    Based on our review, it is difficult to ascertain from the initial
      decision the definitive list of the appellant’s protected disclosures and the
      administrative   judge’s    precise   reasons    for   accepting   or    rejecting   those
      disclosures. ID at 5-6, 9. The administrative judge also assumed for the sake of
      argument that the appellant’s hotline complaint and letters to his elected
      representatives constituted protected disclosures.        ID at 9.      Additionally, she
      offered a full analysis for the August 2012 nonselection, but did not do so for the
      other claimed personnel actions. ID at 9-12.
¶13         On remand, the administrative judge thus must set forth the list of which
      personnel actions are properly before the Board, specifically identifying which
      actions are not being considered because they either were raised for the first time
      in the 2010 OSC complaint, 8 covered by the appellant’s earlier Board appeal, or
      addressed through negotiated grievance procedures. See ID at 5-6; IAF, Tab 47
      at 3-4.   For each remaining personnel action, the administrative judge should
      make specific findings regarding whether the appellant established that the action
      falls within the meaning of 5 U.S.C. § 2302(a)(2)(A).
¶14         The WPEA requires that the administrative judge must address whether the
      appellant met his burden of proof before addressing whether the agency proved

      8
        The administrative judge concluded that the appellant failed to exhaust OSC
      procedures when he reasserted, in his 2013 OSC complaint, matters already investigated
      as a result of his 2010 complaint. ID at 5-6; IAF, Tab 47 at 2-3. The administrative
      judge’s conclusions were consistent with OSC’s statement in its 2013 close out letter
      that it would “not revisit the allegations and personnel actions that . . . [were] already
      analyzed in connection with [his] prior complaint.” IAF, Tab 1 at 11. To the extent
      that the appellant may have been seeking to file an IRA appeal based on his 2010
      complaint, we would find such an appeal to be untimely filed. See 5 C.F.R.
      § 1209.5(a). The appellant also has not asserted that the doctrine of equitable tolling
      should apply in his case and so we have not applied it. See 5 C.F.R. § 1209.5(b).
                                                                                       8

      by clear and convincing evidence that it would have taken the same personnel
      action(s) in the absence of the protected disclosure(s). Belyakov v. Department of
      Health & Human Services, 120 M.S.P.R. 326, ¶ 7 n.3 (2013); see 5 U.S.C.
      § 1221(e)(2). For each disclosure that the appellant identified, the administrative
      judge thus must make specific findings regarding whether he established that the
      disclosure falls within the meaning of 5 U.S.C. § 2302(b)(8).     In making such
      findings, she must specify the date of each protected disclosure and personnel
      action and determine if and when the alleged retaliating official learned of the
      protected disclosure.
¶15        The administrative judge then must reexamine the contributing factor
      evidence for this appeal, applying a proper knowledge-timing test for each
      personnel action and protected disclosure at issue. See 5 U.S.C. § 1221(e)(1).
      Regarding the timing prong, the appellant admits that the delay of 2 years and
      2 months between the June 15, 2010 meeting and the August 2012 nonselection is
      a lengthy one, but he contends that it is not excessively long given R.G.’s fairly
      obvious retaliatory animus, as illustrated by the “bullseye” comment. PFR File,
      Tab 1 at 18-19. He notes that R.G. was unrepentant about the remark during the
      hearing and that the administrative judge minimized his other evidence of
      retaliatory intent. Id. at 19-20. Although the administrative judge outlined in
      detail the testimony substantiating R.G.’s account of the August 2012 selection
      process, ID at 10-12, the delay between the June 2010 meeting and the selection
      process may not be an excessive one. The Board has found the knowledge-timing
      test to have been satisfied where the protected disclosures are between 1 and
      2 years apart.   Peterson v. Department of Veterans Affairs, 116 M.S.P.R. 113,
      ¶ 16 (2011).
¶16        Regarding the August 2012 nonselection, the administrative judge should
      expressly consider whether the appellant established contributing factor under the
      “cat’s paw” theory by establishing that the alleged retaliating official influenced
      others involved in the contested personnel actions. See Aquino v. Department of
                                                                                         9

      Homeland Security, 121 M.S.P.R. 35, ¶ 19 (2014) (citing Staub v. Proctor
      Hospital, 562 U.S. 411, 415-16 (2011)).        The appellant asserts that R.G. and
      R.G.’s manager, J.W., the Head of the Public Works Department, controlled the
      August 2012 selection process and made the hiring decision. PFR File, Tab 1
      at 17.     The appellant asserts that R.G. had actual knowledge of his protected
      disclosures, including the knowledge he gained about those disclosures during the
      June 15, 2010 meeting. Id.; see HCD (testimony of R.G.). J.W., the appellant
      argues, also admitted to actual knowledge of the disclosures because he knew
      about the congressional inquiries resulting from the disclosures. PFR File, Tab 1
      at 17-18; see HCD (testimony of J.W.). The appellant further argues that, even if
      J.W. lacked knowledge of his disclosures, R.G. controlled the selection process
      and influenced J.W. PFR File, Tab 1 at 18.
¶17            For the personnel actions and protected disclosures that meet the
      contributing factor criterion, the administrative judge then must determine
      whether the agency showed by clear and convincing evidence that it would have
      taken the same personnel actions in the absence of the disclosures.           As the
      appellant asserts, the administrative judge declined to make these findings below.
      PFR File, Tab 1 at 20-25. The administrative judge should follow the guidance
      set forth in Durr v. Department of Veterans Affairs, 119 M.S.P.R. 195, ¶¶ 7-15
      (2013), wherein the Board remanded the appeal after finding that the
      administrative judge did not fully address the appellant’s evidence and arguments
      lending support to his claim that the agency failed to meet its burden of proof.
      Credibility Findings
¶18            On review, the appellant also argues that the administrative judge failed to
      make appropriate credibility findings, especially regarding testimony pertaining
      to the agency’s retaliatory motive. If such findings had been made, he asserts, the
      initial decision would have been decided differently. 9 PFR File, Tab 1 at 5. The

      9
        The appellant similarly contends that the testimony of D.L., the selectee for the
      position of Maintenance Supervisor, was largely false because of “misrepresentations”
                                                                                          10

      administrative judge found it more likely than not that, in July 2010, R.G.
      exclaimed (in the presence of several witnesses) that the appellant and other
      employees who signed the letter addressed to Senators Snowe and Collins had “a
      bullseye on their backs.” ID at 14.       She also found, however, that this single
      statement was the appellant’s only evidence that R.G. harbored any animus
      against him, and she concluded that the single comment did not establish a pattern
      of harassment or threat of retaliation. ID at 14-15. R.G. denied that he made the
      statement. HCD (testimony of R.G.). The administrative judge made no explicit
      credibility findings regarding R.G.’s testimony, but significantly relied upon that
      testimony when she found that the appellant failed to show that his disclosures
      contributed to the personnel actions enumerated in his complaint. ID at 9-10,
      12-14.      The appellant contends that none of R.G.’s testimony should be
      considered credible. PFR File, Tab 1 at 9-11.
¶19         The     Board   must   defer   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. 10
      Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) . Here, the
      administrative judge did not address demeanor evidence in the initial decision.
      Although credibility determinations may be based implicitly upon demeanor
      evidence, 11 see id.; Little v. Department of Transportation, 112 M.S.P.R. 224, ¶ 4


      he was alleged to have made on the résumé he submitted when he applied for that
      vacancy. PFR File, Tab 1 at 11-12. On remand, the administrative judge should
      address D.L.’s credibility and that of any other key witnesses.
      10
         “Sufficiently sound” reasons include findings that are incomplete, inconsistent with
      the weight of the evidence, and do not reflect the record as a whole. Faucher v.
      Department of the Air Force, 96 M.S.P.R. 203, ¶ 8 (2004).
      11
         We likewise acknowledge that a witness whose testimony is not credible for one
      matter may provide credible testimony for another matter. Mitchell v. Department of
      the Air Force, 91 M.S.P.R. 201, ¶ 10 (2002); see Baldwin v. Department of Veterans
      Affairs, 111 M.S.P.R. 586, ¶ 23 (2009) (self-serving testimony and documentary
                                                                                          11

      (2009) (recognizing that, where an administrative judge has heard live testimony,
      her credibility determinations must be deemed to be at least implicitly based upon
      the demeanor of the witnesses), the administrative judge here cited no reason why
      she found R.G. to be a credible witness, see Hillen v. Department of the
      Army, 35 M.S.P.R. 453, 458 (1987).        In that respect, we find that the initial
      decision is incomplete.     See Spithaler v. Office of Personnel Management, 1
      M.S.P.R. 587, 589 (1980) (holding that an initial decision must identify all
      material issues of fact and law, summarize the evidence, resolve issues of
      credibility, and include the administrative judge’s conclusions of law and his
      legal reasoning, as well as the authorities on which that reasoning rests).
¶20         Additionally, we share the appellant’s concern regarding the administrative
      judge’s finding that the “bullseye” comment, standing alone, was insufficient to
      establish a pattern of harassment from which retaliatory animus could be inferred.
      PFR File, Tab 1 at 13-16; ID at 14-15. Contrary to the administrative judge’s
      finding, an appellant need not establish a full-blown “pattern” of harassment to
      show retaliatory animus.       See ID at 14-15.       A single incident may have
      compelling evidentiary value.      Here, the context surrounding the “bullseye”
      comment is especially troubling, considering the incendiary nature of the
      comment itself, R.G.’s emphatic denial of having made the statement during his
      hearing testimony, and the other witnesses’ testimony controverting his denial.
      We further note that direct evidence of an agency official’s retaliatory intent is
      typically unavailable because the official can simply deny having made any
      retaliatory comments or having any retaliatory motive. See Whitmore, 680 F.3d
      at 1372; Herman v. Department of Justice, 119 M.S.P.R. 642, ¶ 16 (2013).
      Consequently, we find the administrative judge’s conclusion that the appellant
      failed to show any retaliatory motive to be overly dismissive and contrary to the
      Federal Circuit’s guidance in Whitmore for reviewing such evidence.                See

      evidence is entitled to weight and must be evaluated for credibility in the same manner
      as all other testimony presented by the parties).
                                                                                         12

      Whitmore, 680 F.3d at 1371-72 (remanding where the administrative judge failed
      to consider blatant evidence of retaliatory motive on the part of agency officials
      other than the proposing and deciding officials).
¶21         On remand, the administrative judge must reconsider the strength of the
      agency’s motive to retaliate, examining the totality of the evidence presented in
      this appeal. The administrative judge should especially consider the appellant’s
      arguments in which he identifies a series of acts that began shortly after his initial
      protected disclosure, including the letter of reprimand and the performance
      appraisal conducted by R.G. a few days after the “bullseye” comment. See PFR
      File, Tab 1 at 14-15.         Should the administrative judge determine that the
      appellant’s claims concerning these matters are true, for example, she should
      make findings as to whether R.G. ever personally evaluated other employees that
      he did not directly supervise who were not alleged whistleblowers.
¶22         Accordingly, we must vacate the initial decision and remand the appeal to
      the regional office.     On remand, the administrative judge must make further
      findings regarding which personnel actions and protected disclosures are properly
      before the Board and fully address the appellant’s arguments and evidence as to
      those matters. In addition, if applicable, the administrative judge shall analyze
      whether the agency proved by clear and convincing evidence that it would have
      taken the same personnel action(s) in the absence of the disclosure(s). Because
      the administrative judge held a hearing in the matter and correctly informed the
      parties of their respective burdens of proof beforehand, we deem the record
      complete.        However, the administrative judge has the discretion to allow
      additional discovery and a supplemental hearing prior to issuing a new initial
      decision    if    she finds   it   necessary to do   so for    proper   adjudication.
                                                                         13

                                    ORDER
     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.
