                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                        2015 MSPB 67

                            Docket No. PH-1221-14-0327-W-1

                                  Kenneth G. Mastrullo,
                                         Appellant,
                                              v.
                                  Department of Labor,
                                            Agency.
                                    December 31, 2015

           Susan B. Conrad, Cambridge, Massachusetts, for the appellant.

           Theresa Schneider Fromm, Esquire, Boston, Massachusetts, for the agency.

                                          BEFORE

                             Susan Tsui Grundmann, Chairman
                                Mark A. Robbins, Member

                                  OPINION AND ORDER


¶1         The appellant has filed a petition for review of the initial decision, which
     found that the Board lacks jurisdiction over some of the appellant’s claims of
     whistleblower reprisal in this individual right of action (IRA) appeal and denied
     corrective action regarding the reprisal claims that are within the Board’s
     jurisdiction. For the reasons discussed below, we VACATE the initial decision
     and REMAND the appeal to the administrative judge for further adjudication as
     described in this Opinion and Order.

                                        BACKGROUND
¶2         The appellant resigned from his GS-13 Occupational Safety and Health
     Manager    position   with   the   agency’s   Occupational   Safety   and   Health
                                                                                      2

     Administration (OSHA), effective August 31, 2012. Initial Appeal File (IAF),
     Tab 5, Subtabs 4B, 4D. In March 2013, the appellant filed a complaint with the
     Office of Special Counsel (OSC) asserting that he was compelled to resign due to
     continuous harassment after he disclosed certain information to high level agency
     officials, initiated a Congressional inquiry, and filed charges with the agency’s
     Office of Inspector General (OIG). IAF, Tab 19, OSC Claim Attachment (Att.)
     at 1.
¶3           His OSC complaint identified numerous alleged disclosures and retaliatory
     actions, which we summarize as follows. Id. at 1-19. On March 12, 2008, he
     reported to his supervisor that a coworker was stalking and harassing him because
     he would not join the coworker’s complaint against the supervisor. Id. at 5-6.
     The appellant’s concern was elevated to a regional administrator, who concluded,
     later that month, that the appellant had no reason to be concerned for his safety.
     Id. In August 2010, the appellant lodged a new “workforce violence complaint”
     against the coworker after he observed the coworker driving by his house. Id.
     The appellant alleged that the coworker was stalking and harassing him in
     retaliation for his 2008 complaint. Id. He raised his complaints with high level
     agency officials, including the Deputy Regional Administrator, and the matter
     also was referred to the OIG. Id. at 7. In the ensuing months, he made other
     similar complaints about the situation with his coworker, and a Congressman’s
     office initiated an inquiry with the agency on his behalf.      Id. at 7-11.   The
     appellant claimed that the agency failed to effectively address his concerns about
     the coworker and instead, after his complaints, began to subject him to retaliatory
     actions, such as paying his travel vouchers at a lower rate than other employees,
     giving him unwarranted negative feedback about his performance during his
     Spring 2012 progress review, requiring him to submit a written request for
     flexiplace, and denying him a 40-hour time-off award. Id. at 6-14. On June 16,
     2012, at the direction of the agency’s equal employment opportunity (EEO)
     program manager, he filed a new retaliation complaint concerning his allegations
                                                                                        3

     of harassment since March 2011. Id. at 15. This complaint was known to the
     EEO program manager, the Secretary of Labor, and the Assistant Secretary of
     Labor for OSHA. Id. On June 28, 2012, the EEO program manager informed
     him that his complaint would be “dismissed.” Id. at 16-17.
¶4            According to the appellant, he felt compelled to resign at that point due to
     the frustrating and unsatisfactory responses to his complaints during the
     preceding 4 years, and his concern that the harassment and safety threat would
     continue. Id. at 17-18. He claimed that the agency improperly documented his
     separation as a voluntary retirement when the agency officials knew he was
     resigning involuntarily. Id. at 18-19; IAF, Tab 5, Subtabs 4B, 4D.
¶5            On September 10, 2013, OSC informed the appellant that it was closing its
     investigation.    IAF, Tab 1 at 15.    On November 12, 2013, the regional office
     received the appellant’s Board appeal in which he alleged that, after his safety
     complaints, the agency’s management “engaged in a long term course of
     retaliation and discrimination against [him] that eventually compelled [him] to
     resign.” Id. at 3. The regional office docketed the matter as an IRA appeal. IAF,
     Tab 2.
¶6            During a prehearing conference, the administrative judge explained that,
     pursuant to Covarrubias v. Social Security Administration, 113 M.S.P.R. 583
     (2010), overruled by Colbert v. Department of Veterans Affairs, 121 M.S.P.R.
     677 (2014), 1 an alleged involuntary retirement or resignation claim was not an
     action within the scope of an IRA appeal, but such a claim could be adjudicated
     as a potential adverse action under 5 U.S.C. chapter 75. IAF, Tab 38 at 8. Based
     on this statement of the law, and to avoid delaying the scheduled hearing to allow
     for the docketing of a chapter 75 appeal, the appellant agreed to proceed with


     1
       At the time of the prehearing conference when the administrative judge relied on
     Covarrubias, 113 M.S.P.R. 583, the Board had not yet issued Colbert, 121 M.S.P.R.
     677, which overruled Covarrubias.
                                                                                         4

     adjudication of his IRA appeal without adjudication of the involuntary
     retirement/resignation claim.    Id.    The administrative judge informed the
     appellant of his burden of establishing jurisdiction over, and proving the merits
     of, his remaining claims in an IRA appeal.      Id. at 1-6.     Without making any
     explicit jurisdictional findings, the administrative judge then scheduled and held
     an evidentiary hearing.
¶7         After the hearing, the administrative judge issued an initial decision
     finding that the appellant failed to establish jurisdiction over some of his claims
     and failed to prove a prima facie case of whistleblower reprisal regarding the
     claims within the Board’s purview.         IAF, Tab 50, Initial Decision (ID).
     Specifically, the administrative judge determined that the appellant had pursued
     grievances in December 2010 and March 2011, concerning many of the actions
     raised in this appeal, such as the alleged hostile work environment created by his
     coworker driving by his house on August 19, 2010, and certain issues related to
     his flexiplace request and rejection of travel vouchers.           ID at 7-9.     The
     administrative judge concluded that, pursuant to 5 U.S.C. § 7121(g), the
     appellant’s prior election to pursue a remedy through a negotiated grievance
     process precluded him from pursuing these same matters now in an IRA appeal,
     and thus his claims regarding these matters were outside the Board’s jurisdiction.
     ID at 9. Alternatively, the administrative judge found that the appellant had not
     established jurisdiction over these claims as an IRA appeal because he had failed
     to make a nonfrivolous allegation that any of these matters constituted a
     “personnel action” as defined in 5 U.S.C. § 2302(a)(2)(A). ID at 9-10.
¶8         Similarly, the administrative judge concluded that the alleged retaliatory
     comments made during the appellant’s Spring 2012 midterm progress review
     could not be a covered personnel action under section 2302, and thus, any claim
     regarding those comments “fails as a matter of law.”          ID at 10.   Finally, the
     administrative judge found that the appellant failed to prove that any of his
     remaining alleged protected disclosures or activity was a contributing factor in
                                                                                       5

      the issues related to the time-off award, and thus, he denied corrective action on
      the merits of that claim.      ID at 10-12.    The administrative judge did not
      adjudicate the appellant’s involuntary resignation/retirement claim in the
      initial decision.
¶9           The appellant filed a petition for review, the agency filed a response, and
      the appellant filed a reply.   Petition for Review (PFR) File, Tabs 1, 3-4. On
      review, the appellant challenges most of the administrative judge’s conclusions.
      PFR File, Tab 1.    Among other things, he argues that he should have been
      allowed to pursue both an IRA appeal and an involuntary resignation/retirement
      (constructive discharge) claim, he asserts that the administrative judge did not
      evaluate whether statements made to him during a midterm progress review
      meeting constituted a threatened personnel action, and he states that the
      administrative judge failed to properly consider the statutory knowledge/timing
      test for establishing the contributing factor element of his whistleblower claim.
      Id. at 2-5, Att.

                                         ANALYSIS
      The appellant is entitled to adjudication of his involuntary resignation/retirement
      claim in this IRA appeal.
¶10          After the record closed below, the Board issued a precedential decision
      holding that an involuntary resignation claim is cognizable in an IRA appeal.
      Colbert, 121 M.S.P.R. 677, ¶ 12 n.5. In doing so, the Board explicitly overruled
      Covarrubias on this point, finding that the underlying authority for that decision
      had been abrogated by statute.        Id.; see 5 U.S.C. § 7121(g); Agoranos v.
      Department of Justice, 119 M.S.P.R. 498, ¶ 18 (2013).       Thus, contrary to the
      statement of the law the administrative judge set forth during the prehearing
      conference, IAF, Tab 38 at 8, the appellant may pursue an involuntary
      resignation/retirement claim as a personnel action in an IRA appeal. Under these
      circumstances, we find that the appellant is not bound by his misinformed
      election to proceed with his IRA appeal without consideration of his involuntary
                                                                                           6

      resignation/retirement claim, and we remand for further adjudication of that
      claim. See Savage v. Department of the Army, 122 M.S.P.R. 612, ¶¶ 16-18 (2015)
      (concluding that an appellant’s election of remedies concerning her alleged
      constructive suspension was not binding under 5 U.S.C. § 7121(g) because the
      election was not knowing and voluntary).
¶11         During the processing of this appeal, the administrative judge gave the
      appellant an explicit opportunity to have his involuntary retirement/resignation
      claim docketed as a matter potentially within the Board’s jurisdiction under
      5 U.S.C. chapter 75. IAF, Tab 38 at 8. The appellant chose to forgo that option
      despite being informed that, as a consequence of his decision, the claim
      would not be adjudicated in this appeal and that any later appeal on those issues
      would be subject to dismissal.      Id.   Given this informed decision to forgo a
      potential chapter 75 appeal, the matter will be exclusively adjudicated as an IRA
      appeal on remand, as opposed to a potential chapter 75 appeal raising an
      affirmative defense of whistleblower reprisal.
      The initial decision does not account for all of the alleged disclosures that the
      appellant identified in his OSC complaint.
¶12         Under the law in effect at the time of the material events in this appeal, 2
      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).       After establishing the Board’s
      jurisdiction in an IRA appeal, the appellant then must establish a prima facie case


      2
       All of the relevant events, including the appellant’s resignation, occurred before the
      December 27, 2012 effective date of the Whistleblower Protection Enhancement Act of
      2012. Pub. L. No. 112-199, § 202, 126 Stat. 1465, 1476.
                                                                                                 7

      of whistleblower retaliation by proving by preponderant evidence that he made a
      protected disclosure that was a contributing factor in a personnel action taken
      against   him.      5 U.S.C.     § 1221(e)(1);       Lu     v.   Department   of    Homeland
      Security, 122 M.S.P.R. 335, ¶ 7 (2015). 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. 5 U.S.C. § 1221(e)(1)-(2); Lu, 122 M.S.P.R. 335, ¶ 7.
¶13          As discussed above, the appellant identified numerous alleged disclosures
      in his OSC complaint, and we conclude that he has exhausted his administrative
      remedies regarding these alleged disclosures.                Supra ¶¶ 3-4.    In the initial
      decision, however, the administrative judge only addressed the appellant’s
      assertion that the agency retaliated against him in response to his August 19,
      2010 complaint. ID at 7-12. Moreover, the administrative judge did not state
      whether the appellant made a nonfrivolous allegation of a protected disclosure.
¶14          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.                Spithaler v. Office of Personnel
      Management, 1 M.S.P.R. 587, 589 (1980).                   Because the administrative judge
      failed to identify and analyze each of the appellant’s alleged disclosures from his
      OSC complaint and he failed to articulate the relevant standard of proof, remand
      is   appropriate.     See,     e.g.,   Briley   v.    National     Archives   and    Records
      Administration, 71 M.S.P.R. 211, 219-20 (1996) (remanding the appeal because,
      among other things, the administrative judge did not make specific findings
      regarding the nature of the disclosures). On remand, the administrative judge
      shall identify and analyze each alleged disclosure. 3 He also shall clarify whether

      3
        The appellant stated in his deposition that he was not alleging that the agency
      retaliated against him or constructively discharged him in retaliation for his March 2008
                                                                                             8

      he is making a jurisdictional finding or a finding on the merits, and apply the
      appropriate standard regarding each alleged disclosure. 4
      The appellant’s assertion that his August 2010 complaint was a contributing
      factor in the agency’s decision not to give him a 40-hour time-off award also
      must be remanded for further adjudication. 5
¶15         Because the administrative judge held a hearing, he implicitly found that
      the appellant made a nonfrivolous allegation of a protected disclosure in his
      August 19, 2010 complaint that was a contributing factor in the agency’s decision
      to take a personnel action against him.               Neither party challenges the
      administrative judge’s implicit conclusion on review, and we find no reason to
      disturb it.   We further find that the appellant has proven by preponderant
      evidence that he reasonably believed that he was disclosing a violation of law,
      rule, or regulation in his August 19, 2010 and August 20, 2010 incident reports,


      complaint. IAF, Tab 35 at 79. On remand, the administrative judge shall either
      document the appellant’s intention to withdraw or abandon such a claim or adjudicate
      it. Cf. Wynn v. U.S. Postal Service, 115 M.S.P.R. 146, ¶ 10 (2010) (finding that, before
      determining that an affirmative defense is withdrawn, an administrative judge must
      identify the defense, explain that the Board will no longer consider it when deciding the
      appeal, and give the appellant an opportunity to object to that determination).
      4
        We find it appropriate for the administrative judge to clarify his analysis regarding
      each alleged disclosure before we reach the issue of whether 5 U.S.C. § 7121 bars any
      of the appellant’s claims. We note that some of the appellant’s alleged disclosures
      post-dated his grievance activity, and thus, these disclosures may not be barred by
      section 7121. Compare IAF, Tab 19, OSC Claim Att. at 1-19, with IAF, Tab 5,
      Subtab 4A. On remand, the administrative judge shall address each alleged disclosure
      and make specific findings on this issue.
      5
        The agency’s decision not to give the appellant a 40-hour time-off award constitutes a
      personnel action. See 5 U.S.C. § 2302(a)(2)(A)(ix) (defining a personnel action to
      include a “decision concerning pay, benefits, or awards”); see also Hagen v.
      Department of Transportation, 103 M.S.P.R. 595, ¶ 13 (2006) (holding that the denial
      of a cash award is a personnel action). By contrast, the appellant has not persuaded us
      that the agency’s failure to notify him of his receipt of an award prior to an awards
      ceremony constitutes a personnel action under 5 U.S.C. § 2302(a)(2)(A). See King v.
      Department of Health & Human Services, 133 F.3d 1450, 1452-53 (Fed. Cir. 1998)
      (stating that an action must have practical consequences for an employee to constitute a
      personnel action under 5 U.S.C. § 2302(a)(2)(A)).
                                                                                             9

      and in his August 23, 2010 memorandum to R.H., each of which discusses his
      coworker’s    allegedly      harassing    behavior     dating   back   to   approximately
      March 2008, up to and including the coworker’s apparent decision to drive out of
      his   way    past   the     appellant’s   house   on     August 19,    2010.     5 U.S.C.
      § 2302(b)(8)(A)(i); IAF, Tab 19, OSC Claim Att. at 5-7, Tab 35 at 23-27, Tab 46,
      Exhibit (Ex.) 16; see Mass. Gen. Laws Ann., ch. 265, § 43A (defining the crime
      of criminal harassment in Massachusetts as willfully and maliciously engaging
      “in a knowing pattern of conduct or series of acts over a period of time directed at
      a specific person, which seriously alarms that person and would cause a
      reasonable person to suffer substantial emotional distress”).
¶16         Having found that the appellant proved by preponderant evidence that he
      made protected disclosures in August 2010, we now turn to the contributing
      factor analysis. In the initial decision, the administrative judge found that the
      appellant did not meet his burden to prove a contributing factor as to the agency’s
      failure to give him a 40-hour time-off award. ID at 10-12. For the following
      reasons, we reverse that finding.
¶17         The record reflects that the appellant and other members of a significant
      case team were given the Secretary’s Exceptional Achievement Award in or
      around June 2012.         IAF, Tab 19, OSC Claim Att. at 14, Tab 37, Ex. E.          The
      record also reflects that many of the award recipients were given a 40-hour
      time-off award, but the appellant was given only a $150.00 cash award. IAF,
      Tab 5, Subtab 4H, Tab 35 at 297-99.          The appellant asserted before OSC and
      below that the agency’s failure to give him a 40-hour time-off award constituted a
      retaliatory action. IAF, Tab 19, OSC Claim Att. at 14.
¶18         To prove that a disclosure was a contributing factor in a personnel action,
      the appellant only need demonstrate that the fact of, or the content of, the
      protected disclosure was one of the factors that tended to affect the personnel
      action in any way. Carey v. Department of Veterans Affairs, 93 M.S.P.R. 676,
      ¶ 10 (2003). The knowledge/timing test allows an employee to demonstrate that
                                                                                                      10

      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.                   Id., ¶ 11; see 5 U.S.C.
      § 1221(e)(1). Once the knowledge/timing test has been met, an administrative
      judge must find that the appellant has shown that his whistleblowing was a
      contributing factor in the personnel action at issue, even if after a complete
      analysis of all of the evidence a reasonable factfinder could not conclude that the
      appellant’s whistleblowing was a contributing factor in the personnel action.
      Schnell v. Department of the Army, 114 M.S.P.R. 83, ¶ 21 (2010).
¶19         Despite    the     fact   that      the     administrative     judge       mentioned     the
      knowledge/timing test in the initial decision, he did not evaluate whether the
      appellant satisfied this test. ID at 10-12. This was error. See, e.g., Gonzalez v.
      Department of Transportation, 109 M.S.P.R. 250, ¶ 20 (2008).
¶20         We conclude that the appellant has proven that his August 2010 disclosures
      were a contributing factor in the agency’s failure to give him a 40-hour time-off
      award in June 2012.         The record reflects that R.H., the Deputy Regional
      Administrator whom the appellant asserts was responsible for issuing time-off
      awards for his office, was aware of his August 2010 disclosures. IAF, Tab 35
      at 23-27, 80-90; Hearing Compact Disc (HCD). Thus, the knowledge component
      of the knowledge/timing test is satisfied.
¶21         The record further reflects that an investigation was conducted and, in
      December 2010, R.H. issued a notice of proposed suspension to the coworker
      based in part on the allegations that the appellant made against him in
      his August 2010        complaints,        and     the   deciding      official     upheld      this
      suspension in February 2011.               IAF,     Tab 15   at     DOL 00015-DOL 00023,
      DOL 00055-DOL 00062. The Board has held that a personnel action taken within
      approximately    1 to    2 years     of    the     appellant’s     disclosures     satisfies   the
                                                                                           11

      knowledge/timing test.     Schnell, 114 M.S.P.R. 83, ¶¶ 20-22; see Redschlag v.
      Department of the Army, 89 M.S.P.R. 589, ¶ 87 (2001) (finding that the
      appellant’s disclosures were a contributing factor in her removal when they were
      made approximately 21 months and then slightly over a year before the agency
      removed her); cf. Salinas v. Department of the Army, 94 M.S.P.R. 54, ¶ 10 (2003)
      (finding that a delay of more than 2 years was too remote to satisfy the
      knowledge/timing test). Under the circumstances of this matter, including the
      ensuing agency investigation and decision to take disciplinary action against the
      coworker based in part on the allegations in the appellant’s August 2010
      complaints, we conclude that this time frame satisfies the timing component of
      the knowledge/timing test. 6
¶22         Because we conclude that the appellant has satisfied his burden to prove by
      preponderant evidence that his August 2010 disclosures were a contributing
      factor in the agency’s decision not to give him a 40-hour time-off award, we
      remand this claim to the regional office for the administrative judge to evaluate
      whether the agency proved by clear and convincing evidence that it would not
      have given him a 40-hour time-off award even if he did not make a protected
      disclosure. See Whitmore v. Department of Labor, 680 F.3d 1353, 1368 (Fed.
      Cir. 2012) (“Evidence only clearly and convincingly supports a conclusion when
      it does so in the aggregate considering all the pertinent evidence in the record,
      and despite the evidence that fairly detracts from that conclusion.”); Carr v.
      Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999).




      6
        On review, the appellant also alleges that R.H. was aware of his other complaints,
      including his safety complaint to the National Office and to his Congressman in 2011
      and 2012. PFR File, Tab 1 at 10. To the extent that the administrative judge evaluates
      the knowledge/timing test as to any other disclosures and/or personnel actions, he shall
      do so in accordance with this Opinion and Order.
                                                                                           12

      We remand the appeal for the administrative judge to make findings and
      credibility determinations regarding the nature of J.M.’s statements to the
      appellant during the midterm progress review meeting and to determine whether
      the appellant proved that these statements constitute a threatened
      personnel action.
¶23            In the initial decision, the administrative judge concluded that J.M.’s
      comments to the appellant during a midterm progress review meeting were “not a
      covered ‘personnel action’” and that the appellant’s claim “fails as a matter of
      law.”     ID at 10.   In so concluding, the administrative judge relied on King v.
      Department of Health & Human Services, 133 F.3d 1450, 1452 (Fed. Cir. 1998),
      which distinguished between progress reports and performance evaluations. ID
      at 10.    It is not clear whether, in reaching this conclusion, the administrative
      judge was finding that the appellant did not make a nonfrivolous allegation or
      whether he was denying corrective action with respect to this claim. He should
      articulate the basis for his decision on remand. 7
¶24            The administrative judge also did not acknowledge or discuss the
      appellant’s assertion that J.M.’s comments to him during the midterm progress
      review meeting constituted a threatened personnel action. 8 IAF, Tab 37 at 3; PFR
      File, Tab 1 at 5, Att. at 16, 18; see 5 U.S.C. § 2302(b)(8) (stating that it is a
      prohibited personnel practice to “threaten to take” a personnel action against any
      employee because of that employee’s protected disclosure). The decision of the
      U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in King did not
      discuss a threatened personnel action.       Additionally, we are unaware of any
      precedent that would preclude us from considering the appellant’s claim of a


      7
        Regardless of the administrative judge’s ultimate conclusion on this issue, J.M.’s
      alleged comments may constitute part of the totality of the circumstances related to the
      appellant’s involuntary resignation/retirement claim. See, e.g., Markon v. Department
      of State, 71 M.S.P.R. 574, 577-78 (1996).
      8
        The appellant submitted his resignation letter before the end of the appraisal period,
      and thus, he was not issued a performance appraisal for the time frame in question.
                                                                                         13

      threatened future performance appraisal as a threatened personnel action, even if
      it occurred during a midterm progress review meeting. See Koch v. Securities &
      Exchange Commission, 48 F. App’x 778, 787 (Fed. Cir. 2002) (“The line between
      a counseling measure and a threat is not a bright one, and the distinction between
      the two is very fact-dependent.”); 9 Special Counsel v. Spears, 75 M.S.P.R. 639,
      669 (1997) (acknowledging that there may be circumstances in which notice of a
      performance deficiency would be an implied threat to issue a retaliatory
      performance appraisal); see also Special Counsel v. Hathaway, 49 M.S.P.R. 595,
      600, 608-09 (1991) (finding a threatened personnel action where an employee
      was informed that he should not expect a highly satisfactory rating the next year),
      recons. denied, 52 M.S.P.R. 375, aff’d, 981 F.2d 1237 (Fed. Cir. 1992).
¶25         We find that the appellant made a nonfrivolous allegation of Board
      jurisdiction over his claim of a threatened personnel action during the midyear
      performance review meeting.       The Board has found that the term “threaten”
      means, among other things, “to give signs of the approach of (something evil or
      unpleasant),” and that it should be given a “fairly broad interpretation” in this
      context.   Gergick v. General Services Administration, 43 M.S.P.R. 651, 656
      (1990). The appellant nonfrivolously alleged that he viewed J.M.’s statement
      about deficiencies in his work performance as a threat. IAF, Tab 19, OSC Claim
      Att. at 15, Tab 35 at 268.
¶26         To meet the knowledge-timing test for the contributing factor criterion at
      the jurisdictional stage, the appellant must nonfrivolously allege that the official
      taking the personnel action knew of the appellant’s disclosure and that the

      9
        In Koch, 48 F. App’x at 787, the Federal Circuit affirmed in an unpublished decision
      the administrative judge’s conclusion that the performance counseling memorandum
      issued to Mr. Koch, which provided him with examples of deficient performance and
      cautioned him that he would be removed if he did not make “immediate and profound
      improvements in [his] performance,” did not constitute a threatened personnel action
      because it informed him of weaknesses in his performance and encouraged
      improvement.
                                                                                       14

      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.     Mason v. Department of Homeland Security, 116 M.S.P.R. 135, ¶ 26
      (2011).     The appellant nonfrivolously alleged that J.M. had knowledge of his
      August 2010 disclosures and that the alleged threat during the midyear
      performance review meeting occurred in May 2012, which was 21 months after
      the       August   2010    disclosures.         IAF,   Tab 27,    Compact      Disc
      at DOL 01988-DOL 01989, DOL 02449, Tab 35 at 40-41, 267-68, 275; see
      Redschlag, 89 M.S.P.R. 589, ¶ 87.         Because the appellant has nonfrivolously
      alleged that he made a protected disclosure that was a contributing factor in the
      agency’s decision to threaten to take a personnel action against him, he is entitled
      to a decision on the merits of this claim.
¶27         The record appears fully developed on this issue, and the appellant does not
      contend on review that he was unable to present evidence in support of this claim.
      It is appropriate for the administrative judge to make the merits determination in
      the first instance because there is conflicting evidence and testimony on this
      issue. In contrast to the appellant’s evidence regarding J.M.’s statements during
      the midyear performance review meeting and the perceived significance
      attributed to those statements, J.M. denied using such words as “deficient,” and
      he testified that he viewed the criticism during the midyear performance review
      meeting as a “blip on the radar.” HCD. The administrative judge, as the hearing
      officer, is in the best position to make factual findings and detailed credibility
      assessments on this issue. Lange v. Department of Justice, 119 M.S.P.R. 625,
      ¶ 16 (2013); see Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987).
      On remand, the administrative judge shall make factual findings and credibility
      determinations on this issue and evaluate whether the appellant has proven by
      preponderant evidence that J.M.’s statements constitute a threatened personnel
      action.    If the administrative judge determines that the appellant has met his
      burden in this regard, he shall evaluate the remaining elements of the appellant’s
                                                                                        15

      claim of reprisal for whistleblowing activity in accordance with this Opinion
      and Order.
      The administrative judge shall ensure that the evidentiary record is preserved.
¶28         Our review of this matter revealed problems with the audio recording of the
      hearing. Some of the testimony was inaudible at times, and we were entirely
      unable to hear a portion of the appellant’s cross-examination. The Board has held
      that when the verbatim hearing record omits material evidence necessary to
      adjudicate an appeal, the evidence must be taken again.        Walker v. Office of
      Personnel Management, 52 M.S.P.R. 101, 104 (1991). Therefore, on remand, the
      administrative judge shall take steps to ensure that the record is properly
      preserved and, if necessary, take the omitted testimony again.           See, e.g.,
      Gonzalez v. Department of the Army, 40 M.S.P.R. 241, 249 n.3 (1989) (finding
      that limited readjudication was appropriate to obtain the testimony of witnesses
      whose original testimony was missing from the hearing tape).

                                           ORDER
¶29         For the reasons discussed above, we remand the appeal for further
      adjudication in accordance with this Opinion and Order.



      FOR THE BOARD:


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