                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     AMANDA MOJDEH RAISZADEH,                        DOCKET NUMBERS
                 Appellant,                          DC-0752-12-0648-I-2
                                                     DC-1221-12-0452-W-2
                  v.

     DEPARTMENT OF HOMELAND
       SECURITY,                                     DATE: December 9, 2015
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Thomas F. Hennessy, Esquire, Fairfax, Virginia, for the appellant.

           Laura J. Carroll, Esquire, South Burlington, Vermont, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                           ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     denied her request for corrective action in this individual right of action (IRA)
     appeal. For the reasons discussed below, we GRANT the appellant’s petition for
     review and REMAND MSPB Docket No. DC-1221-12-0452-W-2 to the regional


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     office for further adjudication in accordance with this Order.        Specifically, we
     find that it is necessary to remand the appeal for the administrative judge to
     assess whether the agency proved by clear and convincing evidence that it would
     have assigned the appellant an unacceptable performance rating and terminated
     her employment in the absence of her disclosure.

                                       BACKGROUND
¶2         The agency appointed the appellant to the position of Citizen and
     Immigration Services (CIS) Assistant in March 2007, and converted her position
     to a Supervisory CIS Assistant in April 2007.           Raiszadeh v. Department of
     Homeland Security, MSPB Docket No. DC-0752-12-0648-I-2, Appeal File (I-2
     AF), Tab 18 at 11-12.      In November or December 2007, the appellant and a
     coworker met with the agency’s Office of Inspector General (OIG). See id. at 38;
     see also Hearing Transcript (HT), February 27, 2014, Volume (Vol.) II at 154.
     On December 28, 2007, the appellant’s supervisor (S.D.) rated her performance as
     unacceptable overall. I-2 AF, Tab 19 at 6-16. In a January 2008 letter to OIG,
     the appellant reported that a safe containing sensitive naturalization certificates
     had been left open in June 2007. I-2 AF, Tab 18 at 39. On February 19, 2008,
     S.D. issued a termination notice to the appellant that cited performance
     deficiencies during her probationary period. 2 Id. at 46-47.
¶3         In September 2011, the appellant filed a complaint with the Office of
     Special Counsel (OSC) asserting that the agency gave her a poor performance
     evaluation and terminated her in retaliation for her November 2007 disclosures to
     OIG, which included both the issue with the safe in June 2007, and information
     concerning other personnel problems in her office. 3 I-2 AF, Tab 9 at 43-64. The

     2
       The agency later permitted the appellant to resign effective the day she was scheduled
     to be terminated. I-2 AF, Tab 18 at 50.
     3
      In June 2008, prior to her OSC complaint, the appellant filed an equal employment
     opportunity complaint. Raiszadeh v. Department of Homeland Security, MSPB Docket
     No. DC-1221-12-0452-W-1, Initial Appeal File (W-1 IAF), Tab 7, Subtab 4h. She then
                                                                                         3

     appellant filed this IRA appeal in April 2012. 4       Raiszadeh v. Department of
     Homeland Security, MSPB Docket No. DC-1221-12-0452-W-1, Initial Appeal
     File (W-1 IAF), Tab 1.     Although OSC did not issue a close-out letter to the
     appellant until July 2012, I-2 AF, Tab 21 at 90-96, because over 120 days had
     passed since she filed her OSC complaint, her appeal was deemed ripe for
     adjudication, see 5 U.S.C. § 1214(a)(3)(B).
¶4        At the prehearing conference, the administrative judge found that the
     appellant nonfrivolously alleged that she made a protected disclosure to OIG in
     November or December 2007, concerning the June 2007 safe incident. I-2 AF,
     Tab 26 at 6-7. However, as to the other claimed disclosures, the administrative
     judge found either that the appellant failed to exhaust before OSC or that they
     were not protected. Id. at 7-12. She also found, concerning the alleged personnel
     actions taken by the agency, that the Board only had jurisdiction over the
     appellant’s performance appraisal and her termination. Id. at 12-13.




     filed a civil action in Federal court. W-1 IAF, Tab 7 at 3-18 of 36. The U.S. District
     Court for the Eastern District of Virginia granted the agency’s motion for summary
     judgment of the civil action in March 2012. Id.
     4
       During the processing of the IRA appeal, the administrative judge opened a case sua
     sponte to address the appellant’s claim that she was constructively discharged,
     Raiszadeh v. Department of Homeland Security, MSPB Docket No. DC-0752-12-0648-
     I-1. I-2 AF, Tab 26 at 2. She then joined the appeals, dismissed them without
     prejudice, and, upon their refiling, found that the constructive discharge appeal was
     subsumed by the pending IRA appeal. Id. at 2-3, 15. The appellant, however, already
     filed a separate appeal concerning the same action when she filed her probationary
     termination appeal, MSPB Docket No. DC-315I-12-0444-I-1. The administrative judge
     properly dismissed that appeal as withdrawn upon the appellant’s representative’s
     request, and neither party petitioned for review of the initial decision. Raiszadeh v.
     Department of Homeland Security, MSPB Docket No. DC-315I-12-0444-I-1, Initial
     Decision at 1-2 (May 31, 2012). Because the appellant already filed, and subsequently
     withdrew, an appeal of the same action, we dismiss the constructive discharge appeal,
     MSPB Docket No. DC-0752-12-0648-I-2, and herein provide the appellant with her
     further right to review with respect to that case.
                                                                                              4

¶5         After a hearing on the merits, the administrative judge denied corrective
     action. 5 I-2 AF, Tab 43, Initial Decision (ID) at 8-10. Specifically, she found
     that the appellant failed to prove that she made a protected disclosure because she
     did not have a reasonable belief that her disclosure was protected.              Id.   The
     administrative judge did not address whether the disclosure was a contributing
     factor in the appellant’s performance appraisal or termination, or whether the
     agency proved by clear and convincing evidence that it would have taken those
     actions in the absence of the disclosure. 6
¶6         The appellant has timely petitioned for review. Petition for Review (PFR)
     File, Tab 5. She argues that the administrative judge erred in finding that she
     did not make a protected disclosure because the safe incident constituted a
     violation of a law, rule, or regulation, as well as a policy violation and specific
     danger to public safety. Id. at 2. The agency has responded in opposition to the
     petition for review. PFR File, Tab 7. The appellant has filed a reply. PFR File,
     Tab 8.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶7         To establish a prima facie case of whistleblower retaliation, the appellant
     must prove, by preponderant evidence, that she made a protected disclosure that




     5
      A hearing was held on February 27, 2014, I-2 AF, Tab 46, Hearing Compact Disc, and
     additional testimony was taken, via telephone, on March 12, 2014, I-2 AF, Tab 36,
     Conference Call Compact Disc (CCCD). The record contains a complete written
     hearing transcript, HT, of the February 2014 hearing. Although the appellant submits a
     copy of the conference call transcript on review, Petition for Review (PFR) File, Tab 5,
     Exhibit C, it is incomplete and it is not an official transcript.
     6
       To the extent that the appellant now claims that she made disclosures concerning
     incidents with the safe other than the June 2007 incident, see, e.g., PFR File, Tab 5 at 6,
     the Board does not have jurisdiction over such disclosures because the appellant has
     failed to exhaust them before OSC, see Ward v. Merit Systems Protection Board,
     981 F.2d 521, 526 (1992).
                                                                                           5

     was a contributing factor in a personnel action taken against her. 7               Lu v.
     Department of Homeland Security, 122 M.S.P.R. 335, ¶ 7 (2015) (citing 5 U.S.C.
     § 1221(e)(1)). If the appellant makes out a prima facie case, then the agency is
     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 disclosure. 8
     Id. (citing 5 U.S.C. § 1221(e)(1)-(2)).
     The appellant reasonably believed that her disclosure to OIG concerning the
     June 2007 safe incident evidenced a violation of an agency rule.
¶8         A protected disclosure is a disclosure of information that an appellant
     reasonably believes evidences a violation of any law, rule, or regulation, gross
     mismanagement, a gross waste of funds, an abuse of authority, or a substantial
     and specific danger to public health or safety.           Linder v. Department of
     Justice, 122 M.S.P.R. 14, ¶ 12 (2014).       To establish that an appellant made a
     protected disclosure, she need not prove that the matter disclosed actually
     established one of the categories of wrongdoing listed under 5 U.S.C.
     § 2302(b)(8)(A) or (B); rather, she must show that the matter disclosed was one
     that a reasonable person in her position would believe evidenced any of the
     specified   categories   of    wrongdoing.        Webb    v.   Department     of     the
     Interior, 122 M.S.P.R. 248, ¶ 6 (2015).
¶9         We find that the appellant has proven this element based upon her
     disclosure of an agency rule violation.       See 5 U.S.C. § 2302(b)(8)(B)(i).        In
     November or December 2007, the appellant and a coworker met with OIG. I-2
     AF, Tab 18 at 38. In the appellant’s January 2008 letter to OIG, she thanked OIG
     for meeting with her and apologized for her delay in sending the information that

     7
      A preponderance of the evidence is that degree of relevant evidence that a reasonable
     person, considering the record as a whole, would accept as sufficient to find that a
     contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
     8
       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).
                                                                                         6

      they had discussed. I-2 AF, Tab 9 at 65. Specifically, she asserted, inter alia,
      that, on Friday, June 7, 2007, after she noticed that a safe containing
      naturalization certificates was left open, she reported the incident to S.D. 9 Id.
      The appellant further asserted that on the following Monday, when she conducted
      an audit and counted the naturalization certificates, 300 certificates were missing
      and that the documentation for the missing certificates was not given to her until
      a week later. Id.
¶10         The appellant asserts that her disclosure to OIG was protected, in part
      because she disclosed a violation of an agency law, rule, or regulation. PFR File,
      Tab 5 at 2. The Board has suggested that an agency “rule” includes established or
      authoritative standards for conduct or behavior.         Chavez v. Department of
      Veterans Affairs, 120 M.S.P.R. 285, ¶ 25 (2013).        The appellant testified that
      there were agency rules or regulations that required that naturalization certificates
      be kept secure and that an employee could be “terminated on the spot” for leaving
      the safe open.      HT, Vol. I at 35-36.   The appellant’s belief that there was an
      agency rule regarding not leaving the safe open is supported by the agency’s
      November 9, 2007 memorandum, issued to her work unit prior to her disclosures
      to OIG, that stated, “Employees who engage in security violations (e.g., safe left
      open . . . ) may be subject to disciplinary or adverse action.” I-2 AF, Tab 19 at 5.
      That the safe incident was a violation of an agency rule is further supported by
      the Chief of Employment and Labor Relations (ELR), who testified that he
      believed the incident was a violation of agency policy.          HT, Vol. I at 155.
      Accordingly, we find that a disinterested observer with knowledge of the essential
      facts known to and readily ascertainable by the appellant could reasonably




      9
        A representative from OIG declared in May 2012, that there was no electronic record
      of the appellant’s complaint. I-2 AF, Tab 19 at 17. However, a former OIG employee
      testified that he spoke to the appellant and received her letter. CCCD.
                                                                                           7

      conclude that the safe incident evidenced a violation of an agency rule. 10 See
      Chavez, 120 M.S.P.R. 285, ¶ 25 (finding that the appellant’s disclosure that an
      employee violated a rule by borrowing money from a patient was protected
      because a disinterested observer with knowledge of the essential facts known to
      and readily ascertainable by the appellant could reasonably conclude that the
      conduct violated an agency rule).
      The appellant’s protected disclosure was a contributing factor in her performance
      appraisal and termination.
¶11         The most common way of proving that a disclosure was a contributing
      factor in a personnel action is the knowledge-timing test. 11             Shannon v.
      Department of Veterans Affairs, 121 M.S.P.R. 221, ¶ 23 (2014). Under that test,
      an appellant can prove the contributing factor element through evidence that the
      official taking the personnel action knew of the whistleblowing disclosure and
      took the personnel action within a period of time such that a reasonable person
      could conclude that the disclosure was a contributing factor in the personnel
      action.   Id.    An appellant also may show that a protected disclosure was a
      contributing factor by proving that the official taking the action had constructive
      knowledge of the protected disclosure, even if the official lacked actual
      knowledge. Nasuti v. Department of State, 120 M.S.P.R. 588, ¶ 7 (2014). One
      way of establishing constructive knowledge is by demonstrating that an individual
      with actual knowledge of the disclosure influenced the official accused of taking
      the retaliatory action. Id.
¶12         We find that S.D. at least had constructive knowledge of the appellant’s
      disclosure.     She was the official who assigned the appellant the unacceptable
      performance rating and terminated her. I-2 AF, Tab 18 at 46-47, Tab 19 at 6-16.

      10
        The administrative judge found that the appellant did not reasonably believe that she
      was disclosing a danger to public health or safety. ID at 10. We see no reason to
      disturb this finding.
      11
         The appellant’s performance appraisal and subsequent termination constitute
      personnel actions as defined by 5 U.S.C. § 2302(a)(2).
                                                                                           8

      There is testimony that S.D. knew about the appellant’s disclosure to OIG by the
      end of November 2007, HT, Vol. II at 61-63, which S.D. disputes, id. at 161.
      However, the ELR Chief testified that he had knowledge of the appellant’s
      disclosures to OIG.       HT, Vol. I at 154.    He advised S.D. about managing the
      appellant’s performance and her decision to terminate the appellant.          I-2 AF,
      Tab 18 at 32-37, 43-44. The supervisor of another unit also testified that she
      knew that the appellant made her disclosure to OIG around November and that
      S.D. often sought her advice about “issues” concerning the appellant. HT, Vol. II
      at 111. The agency does not dispute the testimony of either of these individuals.
      Thus, because those who advised S.D. concerning the personnel actions knew
      about the disclosure, we find that she had at least constructive knowledge of the
      disclosure.        See     generally     Aquino    v.   Department     of   Homeland
      Security, 121 M.S.P.R. 35, ¶¶ 21-24 (2014).
¶13        Regarding the timing of the personnel actions, the Board has held that
      personnel actions that were alleged to have begun within 1 to 2 years of a
      disclosure satisfy the “timing” component of the knowledge-timing test. See
      Schnell v. Department of the Army, 114 M.S.P.R. 83, ¶ 22 (2010). Therefore, we
      find that the timing component also is met because agency officials became aware
      of the appellant’s disclosure in late November/early December 2007, and the
      personnel     actions    took   place   shortly thereafter   in   December 2007,   and
      February 2008, respectively.
      The appeal is remanded to the administrative judge to assess whether the agency
      would have assigned the appellant an unacceptable performance appraisal and
      terminated her in the absence of her disclosure under the clear and convincing
      evidence standard.
¶14        Having found that the appellant established that her protected disclosure
      was a contributing factor in her unacceptable performance appraisal and
      termination, the burden now shifts to the agency to establish by clear and
      convincing evidence that it would have taken the same personnel actions in the
      absence of the protected disclosure. 5 U.S.C. § 1221(e)(2); Aquino, 121 M.S.P.R.
                                                                                        9

      35, ¶ 25. Because the administrative judge concluded that the appellant failed to
      prove that she made a protected disclosure, she made no findings as to whether
      the agency met its burden in this regard by clear and convincing evidence. ID
      at 10.     Based upon the nature and timing of the agency’s actions and the
      appellant’s disclosure, and the fact that the administrative judge heard the
      witnesses’ testimony, we believe the administrative judge is in the best position
      to make the necessary factual and credibility determinations in the first instance
      to decide if the agency has established by clear and convincing evidence that it
      would have taken the same actions in the absence of the appellant’s protected
      disclosure. See Mithen v. Department of Veterans Affairs, 119 M.S.P.R. 215, ¶ 23
      (2013) (remanding the question on the clear and convincing evidence standard to
      the administrative judge for, among other things, credibility determinations). We
      accordingly remand the appeal to the administrative judge for an assessment of
      whether the agency met its burden by clear and convincing evidence under the
      standards articulated in Whitmore v. Department of Labor, 680 F.3d 1353, 1368
      (Fed. Cir. 2012), and Carr v. Social Security Administration, 185 F.3d 1318, 1323
      (Fed. Cir. 1999). See Mithen, 119 M.S.P.R. 215, ¶ 24. The administrative judge
      held a hearing in this matter and correctly informed the parties of their respective
      burdens of proof beforehand. We deem the record complete. If, however, the
      administrative judge deems it necessary for proper adjudication of this appeal to
      allow additional discovery or to conduct a supplemental hearing, she retains the
      discretion to do so.

                                           ORDER
¶15            For the reasons discussed above, we remand MSPB Docket No. DC-1221-
      12-0452-W-2 to the regional office for further adjudication in accordance with
      this Order.    This is the final decision of the Merit Systems Protection Board
      regarding the constructive discharge appeal in MSPB Docket No. DC-0752-12-
      0648-I-2. 5 C.F.R. § 1201.113(c).
                                                                                   10

                    NOTICE TO THE APPELLANT
             REGARDING YOUR FURTHER REVIEW RIGHTS
               IN MSPB DOCKET NO. DC-0752-12-0648-I-2
      You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
                          United States Court of Appeals
                              for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

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 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 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.
      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
Circuit.                                                                        The
                                                                                 11

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.
