                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     TIEMOKO COULIBALY,                              DOCKET NUMBER
                  Appellant,                         DC-1221-13-0440-W-1

                  v.

     DEPARTMENT OF STATE,                            DATE: September 24, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Tiemoko Coulibaly, Silver Spring, Maryland, pro se.

           Jennifer I. Toole, Esquire, Washington, D.C., for the agency.


                                           BEFORE

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


                                       FINAL 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.
     Generally, we grant petitions such as this one only when: the initial decision
     contains erroneous findings of material fact; the initial decision is based on an


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     erroneous interpretation of statute or regulation or the erroneous application of
     the law to the facts of the case; the 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, and based on the
     following points and authorities, 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 and AFFIRM the initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2         Effective June 19, 2011, the agency appointed the appellant to the excepted
     service position of Training Instructor (French) in the Foreign Service Institute’s
     School of Language Study.        Initial Appeal File (IAF), Tab 17 at 33-38.     The
     appointment was temporary—not to exceed 2 years—and was subject to the
     successful completion of a 1-year trial period. Id. at 36. The agency terminated
     the appellant’s employment effective April 6, 2012, for inappropriate conduct
     toward his supervisors and failure to follow leave requesting procedures. Id. at
     33-34.
¶3         The appellant filed the instant IRA appeal and requested a hearing. IAF,
     Tab 1 at 2. The administrative judge notified the appellant of how to establish
     jurisdiction over his appeal and ordered him to file a statement, accompanied by
     evidence listing:
              (1)your protected disclosure(s) or activity(ies); (2) the date(s) you
              made the disclosure(s) or engaged in the activity(ies); (3) the
              individual(s) to whom you made any disclosure(s); (4) why your
              belief in the truth of any disclosure(s) was reasonable; (5) the
              action(s) the agency took or failed to take, or threatened to take or
              fail to take, against you because of your disclosure(s) or
              activity(ies); (6) why you believe a disclosure or activity was a
                                                                                          3

           contributing factor to the action(s); and (7) the date of your
           complaint to [the Office of Special Counsel (OSC)] and the date that
           it notified you it was terminating its investigation of your complaint,
           or if you have not received such notice, evidence that 120 days have
           passed since you filed your complaint with OSC.
     IAF, Tab 8.    The appellant subsequently filed 53 submissions, none of which
     contained the list that the administrative judge ordered him to submit. IAF, Tabs
     9-16, 18, 21-28, 31-34, 36-40, 42-44, 46-51, 53, 56-63, 68-72, 74-77.
¶4         The appeal was assigned to a different administrative judge, who issued an
     initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 54, Tab
     78, Initial Decision (ID) at 1, 14. She found that the issues in the appeal were
     limited to the ones that the appellant raised before OSC’s Complaints Examining
     Unit. ID at 5-6; IAF, Tab 10 at 90-108. She further found that the personnel
     actions involved included the appellant’s April 6, 2012 termination, a 2009
     nonselection for appointment, and various incidents of “harassment” and
     “humiliation.” ID at 6. She found that the disclosures involved were a 2009
     complaint to Diplomatic Security regarding workplace violence, and various
     subsequent complaints concerning the preferential treatment of the appellant’s
     coworker and an alleged sexual relationship between that coworker and the
     Division Director. 2 ID at 6. After analyzing the appellant’s submissions, the
     administrative judge concluded that he failed to make a nonfrivolous allegation
     that he reasonably believed that his disclosures evidenced any sort of wrongdoing
     under 5 U.S.C. § 2302(b)(8)(A), and that he failed to make a nonfrivolous
     allegation that his disclosures were a contributing factor to the personnel actions
     at issue. ID at 8-14.
¶5         Subsequently, the appellant filed, through the Board’s e-Appeal system, a
     “Supplement” to a petition for review, consisting of a series of emails between


     2
       The administrative judge found that the appellant was attempting to claim retaliation
     for equal employment opportunity (EEO) activity as well, but that the Board lacks
     jurisdiction over such matters in the context of an IRA appeal. ID at 6, 12-13.
                                                                                      4

     the appellant and various third parties and Merit Systems Protection Board
     officials, as well as numerous items of supporting documentation. Petition for
     Review (PFR) File, Tab 1. The Clerk of the Board construed this filing as a
     petition for review and docketed it as such. PFR File, Tab 2. The agency filed a
     response to the petition for review, PFR File, Tab 9, and the appellant filed a
     reply to the agency’s response, PFR File, Tab 14.

     Procedural Matters on Petition for Review
¶6        Before proceeding to the appellant’s arguments on review, we must address
     procedural matters pertaining to some of the pleadings that the appellant has filed
     on review.
¶7        Regarding the appellant’s response to the acknowledgment letter, the
     appellant stated therein that he did not intend to file a petition for review but
     instead intended to seek judicial review of the initial decision once the initial
     decision became final. PFR File, Tab 6. The Clerk of the Board notified the
     appellant that his petition for review would continue to be processed unless he
     affirmatively withdrew it and that such withdrawal would be with prejudice to
     refiling. PFR File, Tab 7. The appellant did not withdraw his petition. In the
     context of this filing, the appellant made several complaints about the conduct of
     the proceedings below. PFR File, Tab 6 at 6-10. Under the Board’s regulations,
     such arguments must be reserved for petitions for review, cross-petitions for
     review, responses to petitions and cross petitions, and replies to responses.
     5 C.F.R. § 1201.114(a).   We have therefore not considered these arguments in
     deciding whether the petition for review meets the criteria of 5 C.F.R.
     § 1201.115.
¶8        Regarding the appellant’s motion for leave to submit additional evidence,
     he requests that he be allowed to submit additional documentation to show that he
     has suffered harm in the wake of the proceedings below. PFR File, Tab 17; see
     5 C.F.R. § 1201.114(a)(5).    We DENY the appellant’s motion because this
     evidence is immaterial to the dispositive issue of Board jurisdiction. See 5 C.F.R.
                                                                                           5

      § 1201.115(k).        This   submission   also    contains   argument   regarding   the
      jurisdictional issue and the proceedings below. PFR File, Tab 17 at 5-9. For the
      reasons explained above in connection with the appellant’s response to the
      acknowledgment order, we have not considered these arguments in deciding
      whether the petition for review meets the criteria of 5 C.F.R. § 1201.115. 3 Supra,
      ¶ 9.

      Arguments on Petition for Review
¶9           The appellant requests that his petition for review be forwarded to the Merit
      Systems Protection Board officials handling his Federal Tort Claims Act
      complaint as well as Merit Systems Protection Board “executives.” PFR File,
      Tab 1 at 8, 12, 20. We decline to grant the appellant this requested relief. See
      5 U.S.C. § 1204 (listing the powers and functions of the Board in connection with
      an appeal claiming reprisal for whistleblowing); 5 C.F.R. § 1201.117(a)
      (indicating the scope of the Board’s authority on petition for review).
¶10          The appellant argues at length that the adjudication below was deficient and
      that the administrative judges were biased against him and retaliated against him.
      PFR File, Tab 1 at 5-9, 12, 14-16, 19-21, Tab 14 at 5-8, 17. In making a claim of
      bias or prejudice against an administrative judge, a party must overcome the
      presumption      of   honesty   and   integrity    that   accompanies   administrative
      adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386
      (1980).    An administrative judge’s conduct during the course of a Board
      proceeding warrants a new adjudication only if the administrative judge’s
      comments or actions evidence “a deep-seated favoritism or antagonism that would
      make fair judgment impossible.” Bieber v. Department of the Army, 287 F.3d
      1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540,
      555, (1994)). The appellant has not identified any comments or actions by the


      3
        For the same reasons, we have not considered the appellant’s motions for extensions
      of time in determining whether to grant the petition for review. PFR File, Tabs 10, 12.
                                                                                         6

      administrative judges involved in this appeal that would rebut that presumption of
      honesty and integrity. We find that the length of time that the adjudication took
      was not the product of any malfeasance but was rather due to the administrative
      judges’ careful consideration of the parties’ multiple motions and the appellant’s
      numerous lengthy submissions, as well as the regional office’s inundation with a
      large number of furlough appeals at the same time—a matter entirely outside the
      administrative judges’ control. Nor do we find that the administrative judge ever
      indicated that she failed to review the record before issuing her initial decision.
      The administrative judge explained that it was not her obligation to pore through
      the record and make the appellant’s case for him, ID at 9, 10, but our review of
      the initial decision shows that she nevertheless went to great lengths to make
      sense of this voluminous and disjointed record before issuing her decision, ID at
      4-14.     Furthermore, the administrative judge’s failure to mention all of the
      evidence of record in her initial decision does not mean that she did not consider
      it.   Marques v. Department of Health & Human Services, 22 M.S.P.R. 129, 132
      (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). Finally, the fact that an
      administrative judge rules against an appellant does not mean that she is biased.
      Coufal v. Department of Justice, 98 M.S.P.R. 31, ¶ 11 (2004).
¶11           The appellant also disputes the administrative judges’ rulings on his several
      stay requests. PFR File, Tab 1 at 9-10, 12, 18, 21-22, Tab 14 at 5-8. Under
      5 C.F.R. § 1209.11, a stay will remain in effect for the time period set forth in the
      stay order, or until the Board issues a final decision on the appeal of the
      underlying personnel action that was stayed, or until the Board vacates or
      modifies the stay, whichever occurs first. Therefore, even if the appellant’s stay
      requests had been granted, this final decision would mark the end of the stay’s
      effect. The issue is moot because there is no further relief that the Board could
      provide the appellant with regard to his stay requests. See Milner v. U.S. Postal
      Service, 118 M.S.P.R. 600, ¶ 4 (2012) (an issue is moot when there is no effective
      relief that the Board can provide).
                                                                                      7

¶12         The appellant argues that he was denied the opportunity to conduct
      discovery in his appeal. PFR File, Tab 1 at 12, 15-16, 19-20. We disagree. The
      acknowledgment order set forth the time limits for conducting discovery and the
      procedures for doing so. IAF, Tab 2 at 6-7. The administrative judges in no way
      prevented the appellant from conducting discovery.       To the extent that the
      appellant was dissatisfied with the agency’s responses to his discovery requests,
      it was incumbent upon him to file a motion to compel under 5 C.F.R.
      § 1201.73(c). His failure to do so precludes him from raising the issue on review.
      Szejner v. Office of Personnel Management, 99 M.S.P.R. 275, ¶ 5 (2005), aff’d,
      167 F. App’x 217 (Fed. Cir. 2006).
¶13         The appellant argues that, according to the Internal Revenue Service (IRS),
      he was an employee—not a contractor—when he began working for the agency
      several years before his June 19, 2011 appointment. PFR File, Tab 1 at 17, Tab
      14 at 8-13. He argues that the IRS has exclusive authority to determine who is an
      “employee” and who is a “contractor,” that his previous service satisfied the
      1-year trial period for his most recent appointment, and that he was removed
      without due process. PFR File, Tab 1 at 17. As an initial matter, we disagree
      with the appellant that IRS determinations govern appointments in the civil
      service.   Although the IRS may have authority to determine contractor versus
      employee status for federal taxation purposes, civil service appointment and
      tenure is governed not by tax law but by civil service law, as administered by the
      Office of Personnel Management. See generally 5 U.S.C. Part III. In any event,
      we find that the appellant’s employment status is immaterial to the jurisdictional
      issue. As the appellant points out on review, one need not be an “employee”
      within the meaning of 5 U.S.C. chapter 75 in order to file an IRA appeal. PFR
      File, Tab 1 at 17. Rather, coverage extends to applicants for employment and
      anyone who meets the broader definition of “employee” in 5 U.S.C. § 2105. Ang
      v. Department of State, 103 M.S.P.R. 324, ¶¶ 10-11 (2006). It is undisputed that
      the appellant meets this definition. The issue of whether the appellant was an
                                                                                           8

      “employee” under 5 U.S.C. § 7511(a)(1) would be relevant only if this were an
      adverse action appeal, which it is not. When the appellant filed his complaint
      with OSC, he made a binding election to proceed through that forum rather than
      appealing directly to the Board under 5 U.S.C. § 7513(d). 4             See 5 U.S.C.
      § 7121(g); Edwards v. Department of the Air Force, 120 M.S.P.R. 307, ¶ 12
      (2013).
¶14         The appellant argues that he has established a nexus between his EEO
      complaint and his termination. PFR File, Tab 1 at 6-7, 12-13, 15. However,
      filling an EEO complaint is protected under 5 U.S.C. § 2302(b)(9)(A)(ii)—not
      5 U.S.C. §§ 2302(b)(8) or 2302(b)(9)(A)(i), (B), (C) or (D).            See 5 U.S.C.
      § 1221(a); Spruill v. Merit Systems Protection Board, 978 F.2d 679, 690-92 (Fed.
      Cir. 1992). The Board lacks jurisdiction over reprisal for a disclosure made in
      the context of an EEO complaint unless the employee sought to remedy an
      alleged violation of section 2302(b)(8) within the EEO process.          See Mudd v.
      Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 6 (2013) (discussing
      coverage under the Whistleblower Protection Enhancement Act of 2012 for
      allegations raised in the context of an appeal, complaint, or grievance). Because
      the appellant did not show or allege that he was seeking to remedy such a
      violation in his EEO complaint, the administrative judge appropriately found that
      the appellant’s EEO complaint was not a protected disclosure. ID at 13.
¶15         With regard to his 2009 complaint to Diplomatic Security regarding
      workplace violence, the appellant argues that his immediate supervisor, a
      Language Training Supervisor, became aware of this complaint once she became
      his supervisor in 2011. PFR File, Tab 1 at 17; IAF, Tab 10 at 121-24. He cites
      the Language Training Supervisor’s EEO affidavit in support of this allegation

      4
        Unlike the appellants in Edwards v. Department of the Air Force, 120 M.S.P.R. 307
      (2013), Francis v. Department of the Air Force, 120 M.S.P.R. 138 (2013), and
      Agoranos v. Department of Justice, 119 M.S.P.R. 498 (2013), the appellant in this case
      has not attempted to file any direct appeal of his termination that might cast doubt on
      whether his election to proceed through OSC was binding.
                                                                                           9

      and argues that it shows that the complaint was a contributing factor to his
      termination. PFR File, Tab 1 at 17; IAF, Tab 11 at 135-59. For the following
      reasons, we disagree.        First, we have reviewed the Language Training
      Supervisor’s 25-page EEO affidavit, and, contrary to the appellant’s assertion, we
      find no clear indication that she was aware of his complaint to Diplomatic
      Security. The Language Training Supervisor acknowledged that she was aware of
      a complaint that the appellant made to his former supervisor in 2009, IAF, Tab 11
      at 136, but there is no reason to infer that this complaint was the same one that
      the appellant made to Diplomatic Security.            Second, the appellant has not
      explained what influence, if any, the Language Training Instructor had over the
      termination decision. 5 Cf. Marchese v. Department of the Navy, 65 M.S.P.R. 104,
      108-09 (1994) (an appellant may establish the contributing factor element by
      showing that an individual with actual knowledge of the disclosure influenced the
      official accused of taking the retaliatory action).
¶16         The appellant also argues that his complaint to Diplomatic Security was a
      contributing factor to his 2009 nonselection for appointment. PFR File, Tab 14 at
      14-15. He alleges that the Division Director was angry about the complaint but
      that she denied knowledge of why the agency failed to select him for appointment
      a few months later. Id. at 15-16. We find that this allegation, even if true, would
      not establish that the complaint to Diplomatic Security was a contributing factor
      to the appellant’s nonselection. The appellant has not explained what role, if any,
      the Division Director played in the nonselection decision. He implies that the
      Division Director’s statement about her non-involvement in the selection process
      was untrue, but he has not explained why he believes that it was untrue. Id. We
      agree with the agency that the appellant’s gesture toward the EEO counselor’s


      5
        The record contains a negative performance appraisal that the Language Training
      Supervisor completed for the appellant, but it postdates the termination decision. IAF,
      Tab 17 at 26-32. Furthermore, the Language Training Supervisor’s EEO affidavit
      indicates that she played no role in the termination decision. IAF, Tab 11 at 152-54.
                                                                                      10

      106-page report of investigation does not serve to cure the deficiency. PFR File,
      Tab 9 at 15, Tab 14 at 25; IAF, Tab 5 at 76-181; see Tines v. Department of the
      Air Force, 56 M.S.P.R. 90, 92 (1992) (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); 5 C.F.R.
      § 1201.115(a) (a petition for review must be supported by specific references to
      the record).
¶17         The appellant argues that the Division Director was involved in his
      termination and that he made a nonfrivolous allegation that his complaints about
      her sexual relationship with a coworker were a contributing factor to the
      termination. PFR File, Tab 1 at 6-7, 11, 18-19, Tab 14 at 11, 17. As an initial
      matter, we agree with the appellant that he has made a nonfrivolous allegation
      that the Division Director influenced the termination decision. According to the
      Human Resources Specialist’s EEO affidavit, the Division Director recommended
      the termination. PFR File, Tab 1 at 6, 11, Tab 14 at 11; IAF, Tab 13 at 50. The
      appellant also takes issue with the administrative judge’s characterization of his
      allegations as being based on “gossip.” PFR File, Tab 1 at 7, 18; ID at 11. While
      there may be more than gossip to substantiate the appellant’s allegations, the
      appellant still has provided no basis to disturb the administrative judge’s finding
      that the Division Director was unaware of any such disclosure prior to the
      termination. ID at 11. The appellant cites to a “Memorandum of Conversation”
      between the Division Director and the Associate Dean. PFR File, Tab 1 at 6, 11,
      18, 146-47, Tab 14 at 17. He argues that this document shows that there was a
      connection between the Division Director and his termination. PFR File, Tab 1 at
      6. For the reasons explained above, we agree with the appellant that he made a
      nonfrivolous allegation that the Division Director influenced the termination
      decision. However, the Memorandum of Conversation does not show that the
      Division Director was aware of any disclosure of an allegedly inappropriate
      relationship prior to the appellant’s termination. PFR File, Tab 1 at 146-47. It
                                                                                   11

merely shows that the appellant brought this matter to the Associate Dean’s
attention after the termination occurred, that the Associate Dean questioned the
Division Director about the matter, and that the Division Director denied any
involvement in an inappropriate relationship. Id. Finally, to the extent that the
appellant may have engaged in communications about this alleged relationship
after he was terminated, he has not made a nonfrivolous allegation of contributing
factor.   PFR File, Tab 1 at 11, 18-19; see Kukoyi v. Department of Veterans
Affairs, 111 M.S.P.R. 404, ¶ 13 (2009) (disclosures made after the agency has
taken the personnel actions at issue cannot have been contributing factors in those
personnel actions and do not meet the nonfrivolous allegation requirement).

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the United
States 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
may request review of this final decision by the United States 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
                                                                                   12

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
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
        If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for a list of attorneys who have expressed
interest in providing pro bono representation for Merit Systems Protection Board
appellants before the Federal Circuit.       The Merit Systems Protection Board
                                                                           13

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.
