                              UNITED STATES OF AMERICA
                           MERIT SYSTEMS PROTECTION BOARD
                                         2014 MSPB 80

                              Docket No. DA-1221-13-0382-W-1

                                    Frederick J. Colbert,
                                           Appellant,
                                                v.
                              Department of Veterans Affairs,
                                            Agency.
                                         October 16, 2014

           R. Bobby Devadoss, Esquire, Dallas, Texas, for the appellant.

           Kenneth S. Carroll, Esquire, Dallas, Texas, for the agency.

                                            BEFORE

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



                                   OPINION AND ORDER

¶1         The appellant has filed a petition for review of an initial decision that
     dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For
     the following reasons, we GRANT the petition for review.            We AFFIRM the
     administrative judge’s finding that the appellant exhausted his administrative
     remedies with the Office of Special Counsel (OSC).                 We VACATE the
     administrative judge’s conclusion that the appellant did not make a nonfrivolous
     allegation of a protected disclosure. We FIND that, even if the appellant made an
     allegation   of   a    prohibited   personnel   practice   (PPP)   under   5   U.S.C.
     § 2302(b)(9)(A)(i) or (b)(9)(C), the expanded IRA appeal rights in the
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     Whistleblower Protection Enhancement Act of 2012 (WPEA) do not apply to this
     case. We FIND instead that the appellant made a nonfrivolous allegation of a
     protected disclosure pursuant to 5 U.S.C. § 2302(b)(8)(B)(i) and that the
     disclosure was a contributing factor in the agency’s decision to take a personnel
     action against him.       We FURTHER FIND that the appellant’s involuntary
     resignation claim must be analyzed in light of any further evidence and argument
     on the merits of the appellant’s whistleblower reprisal allegations. We therefore
     REMAND the appeal for further adjudication consistent with this Opinion and
     Order.

                                        BACKGROUND
¶2           The appellant, a nurse, averred that he filed a “form 11” complaint with
     OSC on December 30, 2011, in which he disclosed that “medications were being
     distributed to veterans in a manner that was [not] in accordance with proper
     procedure[s] and several patients (i.e., veterans) were given access to areas that
     [were] not appropriate.” Initial Appeal File (IAF), Tab 10 at 5, Tab 23 at 7. 1 He
     further averred that, in reprisal for this complaint, he “started experiencing
     retaliation” in the form of car vandalism, patient complaints, a hostile work
     environment, a July 16, 2012 “minimally satisfactory” evaluation, and a “double
     bind” proficiency review and summary review notice. IAF, Tab 10 at 5-6, 8,
     Tab 23 at 7-14. The appellant stated that he filed an OSC complaint on July 24,
     2012, documenting such instances of alleged retaliation. See IAF, Tab 10 at 6, 8.


     1
         An OSC Form 11 is a “Complaint of Possible Prohibited Personnel Practice or Other
     Prohibited Activity,” and an OSC Form 12 is a “Disclosure of Information” form. See
     OSC Forms, OSC.GOV, https://osc.gov/Pages/Resources-OSCForms.aspx. The record
     does not contain a copy of the appellant’s December 30, 2011 submission to OSC.
     Despite his assertion that he filed a “form 11” complaint on that date, he has not alleged
     in this appeal that he was a victim of reprisal prior to December 30, 2011; rather, this
     appeal concerns the appellant’s claim that the agency retaliated against him as a result
     of the information he disclosed to OSC on December 30, 2011. See IAF, Tab 1 at 6, 9.
                                                                                      3

     On July 26, 2012, the appellant informed the agency that he would resign,
     effective August 12, 2012. IAF, Tab 10 at 8; see IAF, Tab 14 at 15 (resignation
     Standard Form 50), 17 (resignation letter). After the appellant resigned, he filed
     another OSC reprisal complaint. IAF, Tab 10 at 8. OSC informed the appellant
     on March 7, 2013, that it was closing its investigation. IAF, Tab 1 at 9 (close out
     letter in OSC File No. MA-12-4046). The appellant filed a Board appeal, and he
     requested a hearing. IAF, Tab 1.
¶3         The administrative judge issued an initial decision, finding that the
     appellant exhausted his administrative remedies with OSC but concluding that he
     failed to make a nonfrivolous allegation of a protected disclosure under 5 U.S.C.
     § 2302(b)(9)(A)(i). IAF, Tab 27, Initial Decision (ID) at 2-6. The administrative
     judge also found that the appellant failed to make a nonfrivolous allegation that
     the agency retaliated against him by creating intolerable working conditions that
     caused his involuntary resignation.   See ID at 6-9.      The appellant has filed a
     petition for review, and the agency has filed a response. Petition for Review
     (PFR) File, Tabs 1, 3. On review, the appellant asserts that the administrative
     judge incorrectly applied the relevant legal principles and improperly determined
     that he failed to make a nonfrivolous allegation of a protected disclosure. PFR
     File, Tab 1.

                                        ANALYSIS
¶4         The Board has jurisdiction over an IRA appeal if the appellant has
     exhausted his administrative remedies before OSC and makes nonfrivolous
     allegations 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.       Yunus v. Department of
     Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).
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     We affirm the administrative judge’s decision regarding exhaustion.
¶5         Regarding administrative exhaustion, OSC’s close out letter stated that the
     appellant claimed that he “disclos[ed] violations of law, rule, or regulation at the
     clinic” in his December 30, 2011 complaint, and that he had “experienced a
     hostile work environment, an unfavorable proficiency report, and a report of
     summary board review, all of which [he] believe[d] forced [him] to resign.” IAF,
     Tab 1 at 9. The agency did not file a cross petition for review of the initial
     decision, and we affirm the administrative judge’s decision on administrative
     exhaustion with OSC, which is supported by the record evidence. ID at 3.
     The provisions of the WPEA, authorizing an IRA appeal based on an allegation
     that a personnel action was taken as a result of                           a PPP
     under 5 U.S.C. § 2302(b)(9)(A)(i) or (b)(9)(C), do not apply in this case.
¶6         In analyzing whether the appellant made a nonfrivolous allegation of a
     protected   disclosure,   the     administrative     judge     found   that,    under    the
     Whistleblower Protection Act, reprisal for filing an OSC complaint was
     considered activity pursuant to 5 U.S.C. § 2302(b)(9) and was not whistleblowing
     activity pursuant to section 2302(b)(8).        ID at 4.       The administrative judge
     considered the impact of the WPEA, Pub. L. No. 112-199, 126 Stat. 1465 (2012),
     which went into effect on December 27, 2012, see WPEA § 202, after all of the
     relevant events in this matter. She explained that pursuant to section 101(b) of
     the WPEA, an employee may now seek corrective action in an IRA appeal for any
     personnel   action   taken   as    a   result   of   a   PPP    described      in   5 U.S.C.
     § 2302(b)(9)(A)(i), (B), (C), or (D). ID at 5-6; see 5 U.S.C. § 1221(a). After
     finding that section 101 of the WPEA applied to this appeal, the administrative
     judge determined that the appellant failed to make a nonfrivolous allegation that
     he engaged in activity protected by 5 U.S.C. § 2302(b)(9)(A)(i). See ID at 5-6.
     The appellant does not challenge the administrative judge’s reliance on 5 U.S.C.
     § 2302(b)(9)(A)(i) on review, but he disagrees generally with the administrative
     judge’s application of the relevant legal authority. See PFR File, Tab 1 at 7.
                                                                                             5

¶7          We vacate the administrative judge’s analysis of this issue.                   The
     administrative judge did not have the benefit of the Board’s decision in Hooker v.
     Department of Veterans Affairs, 120 M.S.P.R. 629, ¶¶ 8-15 (2014), wherein the
     Board declined to give retroactive effect to section 101(b)(1)(A) of the WPEA as
     it applied to the PPPs described in 5 U.S.C. § 2302(b)(9)(B). We conclude that
     the expanded IRA appeal rights under the WPEA do not apply to this case for
     similar reasons.   In Hooker, 120 M.S.P.R. 629, ¶¶ 11-15, the Board used the
     analytical framework set forth in Landsgraf v. USI Film Products, 511 U.S. 244
     (1994), to determine that the retroactive application of the new IRA appeal right
     in section 101(b)(1)(A), as it pertains to personnel actions taken as a result of a
     PPP, as set forth at 5 U.S.C. § 2302(b)(9)(B), would be impermissible because it
     would increase a party’s liability for past conduct as compared to pre-WPEA
     liability. The same rationale is applicable to the new IRA appeal right pertaining
     to alleged PPPs as described in 5 U.S.C. § 2302(b)(9)(A)(i) and (b)(9)(C). 2
     Indeed, as in Hooker, the WPEA created new Board appeal rights in IRA appeals
     for employees who allege that a personnel action has been taken as a result of
     PPPs described in section 2302(b)(9)(A)(i) and (b)(9)(C), and it includes a new
     provision directing the Board to order such corrective action as the Board
     considers appropriate when such protected activity is a contributing factor in a
     personnel action. See Hooker, 120 M.S.P.R. 629, ¶ 15. Therefore, consistent
     with   Hooker,     we   decline   to   apply    the   new    IRA    appeal    right    in
     section 101(b)(1)(A) of the WPEA as it pertains to the PPPs described at 5 U.S.C.



     2
       Because we find that the WPEA’s new IRA appeal rights are not available to the
     appellant concerning the pre-WPEA events in this appeal, we do not need to resolve
     whether he made a nonfrivolous allegation that his activity constitutes a complaint
     “with regard to remedying a violation of [5 U.S.C. § 2302(b)(8)],” as described in
     5 U.S.C. § 2302(b)(9)(A)(i), or “disclosing information to . . . the Special Counsel, in
     accordance with applicable provisions of law,” as described in 5 U.S.C.
     § 2302(b)(9)(C). See Hooker, 120 M.S.P.R. 629, ¶¶ 9-10.
                                                                                            6

     § 2302(b)(9)(A)(i) and (b)(9)(C) because doing so would increase a party’s
     liability for past conduct as compared to pre-WPEA liability. See id.
     The appellant made a nonfrivolous allegation that his December 2011 complaint
     to OSC was protected by 5 U.S.C. § 2302(b)(8)(B)(i).
¶8         Although the appellant cannot bring an IRA appeal based on the WPEA
     amendments as set forth above, his December 2011 OSC complaint should have
     been considered under 5 U.S.C. § 2302(b)(8)(B)(i). Prior to the enactment of the
     WPEA, that section stated, in pertinent part, that it is a PPP to take or fail to take,
     or threaten to take or fail to take, a personnel action concerning any employee
     “because of . . . any disclosure to the Special Counsel” of information that the
     employee reasonably believes evidences “a violation of any law, rule, or
     regulation.”    5 U.S.C. § 2302(b)(8)(B)(i) (2011); Weed v. Social Security
     Administration, 113 M.S.P.R. 221, ¶ 9 (2010). 3 OSC’s close out letter, coupled
     with the appellant’s statement in his affidavit that he disclosed medication
     administration improprieties and that veterans were given unauthorized access to
     certain parts of the medical facility, constitute a nonfrivolous allegation that he
     reasonably believed that he disclosed a violation of a law, rule, or regulation to
     OSC in December 2011.            We therefore find that the appellant made a
     nonfrivolous allegation of a protected disclosure.
     The appellant made a nonfrivolous allegation that his December 2011 OSC
     complaint was a contributing factor in the agency’s decision to take a personnel
     action against him.
¶9         Having determined that the appellant made a nonfrivolous allegation that
     his December 2011 complaint to OSC constitutes a protected disclosure pursuant
     to 5 U.S.C. § 2302(b)(8)(B)(i), we also conclude that the appellant nonfrivolously

     3
       The only change that the WPEA made to 5 U.S.C. § 2302(b)(8)(B)(i) is that it struck
     “a violation” and inserted “any violation (other than a violation of this section).” WPEA
     § 101(a)(2). We have considered this amendment and find that it does not change the
     result in this case. See Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 5
     n.3 (2013).
                                                                                         7

      alleged that this complaint was a contributing factor in a personnel action taken
      against him. One way to establish the contributing factor criterion is through the
      knowledge-timing test, under which an employee may nonfrivolously allege that
      the disclosure was a contributing factor in a personnel action through
      circumstantial evidence, such as evidence that the official taking the personnel
      action knew of the disclosure and that the personnel action occurred within a
      period of time such that a reasonable person could conclude that the disclosure
      was a contributing factor in the personnel action. Mudd, 120 M.S.P.R. 365, ¶ 10.
¶10         Regarding the “knowledge” component, the appellant averred that he
      “notified management” of his December 30, 2011 OSC complaint. IAF, Tab 10
      at 5. Although the appellant does not clearly identify any individuals whom he
      would consider “management,” he averred that he informed V.B., his “nursing
      supervisor,” that he intended to contact OSC in December 2011, and V.B.’s input
      was used in his performance evaluation.       IAF, Tab 23 at 7, 10-11.      He also
      identified L.G. as his “supervisor” and “manager,” and it appears that L.G.
      requested a summary review board. See IAF, Tab 10 at 5-6, Tab 14 at 19, Tab 23
      at 8. We find that these assertions satisfy the “knowledge” component of the
      knowledge-timing      test.     See    Carney     v.   Department     of   Veterans
      Affairs, 121 M.S.P.R. 446, ¶¶ 9-12 (2014) (the appellant’s assertion, that the
      supervisors who suspended him knew that he engaged in representational
      activities because “they were apprised of [his] everyday activities,” “were
      intensely scrutinizing him,” and “granted [him] official time to engage in the
      representational activities,” constitutes a nonfrivolous allegation that his activity
      was a contributing factor in his suspensions); see also Jessup v. Department of
      Homeland Security, 107 M.S.P.R. 1, ¶ 10 (2007) (an allegation of knowledge or
      constructive knowledge is “minimally sufficient” to meet the burden of a
      nonfrivolous allegation).
¶11         The Board has held that personnel actions that were alleged to have begun
      within 1 year of the disclosures satisfy the “timing” component of the
                                                                                           8

      knowledge-timing test.      See Mudd, 120 M.S.P.R. 365, ¶ 10.             The “timing”
      component is satisfied here because all of the alleged personnel actions, including
      the appellant’s resignation, occurred within 8 months of his December 2011 OSC
      complaint. See, e.g., IAF, Tab 14 at 15, 17.
¶12         We further find that the appellant has identified several potentially
      retaliatory personnel actions under 5 U.S.C. § 2302(a)(2)(A).             The appellant
      alleged that there was a hostile work environment and OSC referenced an
      “unfavorable proficiency report” and a “report of summary board review,” which
      we understand to mean the appellant’s July 16, 2012 “minimally satisfactory”
      performance evaluation and his supervisor’s request for a summary review board,
      respectively. See IAF, Tab 1 at 9, Tab 14 at 19, Tab 23 at 10-11. A performance
      evaluation is a personnel action identified in 5 U.S.C. § 2302(a)(2)(A)(viii), and
      the request for a summary review board could be a personnel action, as it could
      be “a decision concerning pay, benefits, or awards” or “any other significant
      change   in   duties,   responsibilities,   or   working   conditions.”      5   U.S.C.
      § 2302(a)(2)(A)(ix), (xii). 4   The Board also has held that, if an appellant can
      prove by preponderant evidence that his resignation was involuntary, the Board
      may have IRA jurisdiction over the resignation as a personnel action
      under 5 U.S.C. § 2302(a)(2)(A). Koury v. Department of Defense, 84 M.S.P.R.
      219, ¶ 10 (1999). 5


      4
        For the sake of convenience, we are citing to the current version of 5 U.S.C.
      § 2302(a)(2)(A). However, at the time of the incidents in question, the relevant
      subsections were 5 U.S.C. § 2302(a)(2)(A)(ix), (xi) (2011). See WPEA § 104. The
      renumbering is immaterial to our decision in this matter.
      5
        In Covarrubias v. Social Security Administration, 113 M.S.P.R. 583, ¶ 9 n.2 (2010),
      the Board indicated that, because an involuntary retirement was equivalent to a
      removal, which is an “otherwise appealable action,” it was outside the scope of an IRA
      appeal. In so concluding, the Board relied on Massimino v. Department of Veterans
      Affairs, 58 M.S.P.R. 318 (1993), which we have recognized was abrogated by 5 U.S.C.
      § 7121(g). See Agoranos v. Department of Justice, 119 M.S.P.R. 498, ¶ 18 (2013).
      Accordingly, to the extent that Covarrubias conflicts with our decision that an
                                                                                        9

      The appellant’s involuntary resignation claim should be remanded for further
      adjudication.
¶13         The administrative judge determined below that the appellant failed to
      make a nonfrivolous allegation that he was subjected to a personnel action in the
      form of a forced resignation in reprisal for protected whistleblowing activity. See
      ID at 9. As noted above, the administrative judge arrived at this conclusion after
      finding, incorrectly, that the appellant failed to make a nonfrivolous allegation of
      a protected disclosure.   See ID at 4-6. In light of our decision to vacate the
      administrative judge’s analysis in this regard, and our conclusion regarding the
      contributing factor criterion, we also vacate the administrative judge’s analysis of
      the involuntary resignation claim, and we remand this claim for further
      adjudication. See Diefenderfer v. Department of Transportation, 108 M.S.P.R.
      651, ¶¶ 35-37 (2008) (explaining that, because the Board was remanding the
      appeal for further consideration of some of the appellant’s reprisal claims, and
      because these claims were intertwined with her claim that her resignation was
      involuntary, further consideration of the latter claim was appropriate).        The
      administrative judge shall reconsider her findings concerning the involuntary
      resignation claim in light of any further evidence and argument introduced on
      remand, and she shall make new findings concerning the appellant’s claim in this
      regard. See id., ¶ 37.




      involuntary resignation claim is cognizable in an IRA appeal, it is hereby
      OVERRULED.
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                                          ORDER
¶14         We REMAND the appeal to the Denver Field Office for further
      adjudication consistent with this Opinion and Order.



      FOR THE BOARD:


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