                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ANDREA X. WILLIAMS,                             DOCKET NUMBER
                  Appellant,                         AT-1221-13-0239-B-1

                  v.

     SOCIAL SECURITY                                 DATE: December 9, 2014
       ADMINISTRATION,
                   Agency.



                       THIS ORDER IS NONPRECEDENTIAL 1

           Phillip Thomason, Dawsonville, Georgia, for the appellant.

           Avni D. Gandhi, Esquire, and Peter S. Massaro, III, Atlanta, Georgia, for
             the agency.


                                           BEFORE

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


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the remand initial decision,
     which denied his request for corrective action. For the reasons discussed below,
     we GRANT the appellant’s petition for review, AFFIRM IN PART and VACATE

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     IN PART the administrative judge’s initial decision, and REMAND the case to
     the regional office for further adjudication in accordance with this Order.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The appellant filed a complaint with the Office of Special Counsel (OSC)
     challenging his 14-day suspension as an act of whistleblower reprisal. Remand
     Appeal File (RAF), Tab 3 at 30-38.         In his complaint to OSC, the appellant
     alleged, inter alia, that he was subjected to a hostile work environment,
     retaliation, and unfair labor practices and that he made protected disclosures to
     several individuals, including one of the agency’s Regional Commissioners and
     the agency’s Office of Inspector General (OIG), concerning these issues.             Id.
     at 30, 36; see RAF, Tab 31 at 124-28 (OIG report), 145-47 (appellant’s email to
     Regional Commissioner).       The administrative judge found that the appellant
     established jurisdiction over his appeal and, following a hearing, found that the
     appellant failed to establish by preponderant evidence that he made a protected
     disclosure under 5 U.S.C. § 2302(b)(8) and, alternatively that the agency
     established by clear and convincing evidence that it would have taken the same
     personnel action in the absence of the appellant’s protected disclosure.          RAF,
     Tab 37, Remand Initial Decision (RID) at 7-10, 11-13. The appellant has filed a
     petition for review, and the agency has filed a response. Petition for Review
     (PFR) File, Tabs 1, 3.
¶3         In order to secure corrective action from the Board in an individual right of
     action (IRA) appeal, an appellant must first seek corrective action from OSC. 2
     Aquino v. Department of Homeland Security, 121 M.S.P.R. 35, ¶ 9 (2014). 3 If an

     2
       In our prior Remand Order, we found that the appellant filed a complaint with OSC
     prior to filing a grievance challenging his 14-day suspension, and that he exhausted his
     remedies with OSC. See MSPB Docket No. AT-1221-13-0239-W-1, Remand Order
     at 3-4.
     3
      Pursuant to the Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L.
     112-199, 126 Stat. 1465, an employee may also file an IRA appeal with the Board
     concerning alleged reprisal for participation in certain protected activities after
                                                                                       3

     appellant exhausts his remedies with OSC, he may then file an IRA appeal with
     the Board and must nonfrivolously allege facts which would establish jurisdiction
     over his appeal. Id. When reviewing the merits of an IRA appeal, the Board
     considers whether the appellant has established by a preponderance of the
     evidence that he made a protected disclosure under 5 U.S.C. § 2302(b)(8) that
     was a contributing factor in the agency’s personnel action.       Id., ¶ 10.   If an
     appellant is able to offer such proof, the Board must order corrective action
     unless the agency can establish by clear and convincing evidence that it would
     have taken the same personnel action in the absence of the disclosure. Id. 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. Id.
¶4        We agree with the administrative judge that the appellant’s alleged
     protected disclosures raising allegations of equal employment opportunity (EEO)
     harassment, discrimination, and retaliation do not qualify as protected disclosures
     under 5 U.S.C. § 2302(b)(8) and thus we AFFIRM this portion of the initial
     decision. RID at 5-6. Both the Federal Circuit and the Board have found that
     allegations of discrimination and harassment do not constitute protected
     disclosures of a violation of law, rule, or regulation because they pertain to
     matters of discrimination covered by 5 U.S.C. § 2302(b)(1)(A) and are actionable
     through other administrative mechanisms, such a filing an EEO complaint. See,
     e.g., Spruill v. Merit Systems Protection Board, 978 F.2d 679, 690 (Fed. Cir.
     1992); Redschlag v. Department of the Army, 89 M.S.P.R. 589, ¶ 84 (2001).
     Thus, to the extent the appellant’s OSC complaint contains allegations of EEO
     harassment, discrimination, and retaliation, we agree with the administrative
     judge that these allegations are not protected disclosures under 5 U.S.C.
     § 2302(b)(8).

     exhausting such claims with OSC. See 5 U.S.C. § 1221(e)(1). None of these additional
     bases for filing an IRA appeal with the Board, however, are at issue in this case.
                                                                                             4

¶5         We differ with the administrative judge’s conclusion, however, that the
     appellant’s disclosure of facts which could form the basis of an unfair labor
     practice (ULP) charge cannot also serve as the basis for a protected disclosure of
     a violation of law, rule, or regulation under 5 U.S.C. § 2302(b)(8) and thus we
     VACATE this portion of the initial decision. RID at 7. 4 In her remand initial
     decision, the administrative judge cited Mitchell v. Department of the
     Treasury, 68 M.S.P.R. 504 (1995), for the proposition that “allegations of facts
     which only evidence [a ULP] are not the type of disclosure Congress intended to
     protect under the Whistleblower Protection Act.” RID at 7. Although this is an
     accurate summary of Mitchell, the Board further explained that “if the alleged
     facts underlying the ULP charge/complaint also would constitute independent
     violations of section 2302(b)(8), the employee discloses the facts through
     additional channels in such a way as to advance his whistleblower claim, and
     suffers a personnel action which he alleges is retaliation for his whistleblowing
     disclosure,   he    may    avail    himself    of   the   IRA     procedures.”        See
     Mitchell, 68 M.S.P.R. 504, 509-10 (citing Ellison v. Merit Systems Protection
     Board, 7 F.3d 1031, 1035 (Fed. Cir. 1993)) (emphasis added). 5
¶6         Here, we find that the appellant’s disclosure of the facts underlying a
     potential ULP charge—specifically, that he was denied his right to union
     representation during a formal discussion with the agency—constitutes a
     disclosure of an independent violation of a law, rule, or regulation under section
     2302(b)(8), and may form the basis of an independent claim of whistleblower
     reprisal. See id.; see also Loyd v. Department of the Treasury, 69 M.S.P.R. 684,
     4
       In her initial decision, the administrative judge found that such allegations fell under
     5 U.S.C. § 2302(b)(9)(A), rather than section 2302(b)(8). RID at 7. As explained
     herein, we find that the appellant made protected disclosures under section 2302(b)(8).
     5
       It is possible that this two-step analysis, of whether the underlying facts of an
     otherwise nonprotected disclosure of a ULP may nonetheless constitute an independent
     protected disclosure of a violation of section 2302(b)(8), may now be unnecessary
     following the enactment of the WPEA. See Carney v. Department of Veterans Affairs,
     121 M.S.P.R. 446, ¶¶ 5-6 (2014).
                                                                                                 5

     688-89 (1996).        Similar to both Mitchell and Loyd, where the employees
     independently disclosed the underlying facts of ULP charges and alleged that they
     were retaliated against because they made these disclosures, the record here
     reflects that the appellant disclosed to both a Regional Commissioner and the OIG
     that his right to union representation under 5 U.S.C. § 7114 was not honored
     during a formal discussion with the agency, 6 and that he was suspended for
     14 days shortly after making these disclosures. RAF, Tab 31 at 124-28, 145-47.
     Consistent with these decisions, we find that the appellant made a protected
     disclosure under 5 U.S.C. § 2302(b)(8). We further find that the appellant has
     established that his disclosures were a contributing factor in his 14-day
     suspension because the deciding official knew about his disclosures and because
     his 14-day suspension was issued within a short period of time after he made
     them. See Schoenig v. Department of Justice, 120 M.S.P.R. 318, ¶ 13 (2013); see
     also RID at 10 n.6 (finding that the deciding official was aware of appellant’s
     email to the Regional Commissioner); RAF, Tab 31 at 127 (OIG summary of
     interview   with      the   deciding    official    concerning     appellant’s    complaint),
     145 (appellant’s email to the Regional Commissioner which was also sent to the
     deciding official).
¶7         Although the administrative judge found that the appellant failed to
     establish that he made protected disclosures under 5 U.S.C. § 2302(b)(8), she
     made alternative findings that the agency established by clear and convincing
     evidence that it would have suspended the appellant, even in the absence of his
     alleged protected disclosures.          RID at 10-13.        Congress, however, recently
     amended the procedures the Board must follow in adjudicating claims of
     whistleblower      reprisal.     See,    e.g.,     Clarke   v.   Department      of   Veterans


     6
       The appellant referred to this incident as a violation of his Weingarten rights, which
     similarly requires employers covered by the National Labor Relations Act to allow
     union representation during investigatory interviews. See Lim v. Department of
     Agriculture, 10 M.S.P.R. 129, 130 (1982).
                                                                                       6

     Affairs,   121 M.S.P.R.   154,   ¶ 19   n.10   (2014).     Specifically,   Congress
     amended 5 U.S.C. § 1221(e)(2) to provide that corrective action cannot be
     ordered if, “after a finding that a protected disclosure was a contributing factor,”
     the agency demonstrated by clear and convincing evidence that it would have
     taken the same personnel action in the absence of such disclosure. Id. (citing the
     WPEA) (emphasis added). Under this amendment, the Board may not proceed to
     the clear and convincing evidence test unless it has first made a finding that the
     appellant established his prima facie case.       Id.    Accordingly, because the
     administrative judge did not conclude that the appellant made a protected
     disclosure which was a contributing factor in a challenged personnel action, we
     find that the administrative judge erred in rendering alternative findings that the
     agency established by clear and convincing evidence that it would have taken the
     same personnel action in the absence of the appellant’s protected disclosure. Id.,
     ¶ 19 (declining to reach whether the administrative judge’s alternative findings
     were proper in the absence of evidence that the appellant made protected
     disclosures and exhausted those disclosures with OSC). Thus, to the extent that
     the administrative judge made alternative findings that the agency established by
     clear and convincing evidence that it would have suspended the appellant, even in
     the absence of his alleged protected disclosures, we VACATE this portion of the
     initial decision.
¶8         Because, however, we find on review that the appellant made protected
     disclosures under 5 U.S.C. § 2302(b)(8), which were a contributing factor in the
     agency’s decision to suspend the appellant for 14 days, we REMAND the case to
     the administrative judge to conduct further proceedings, including an analysis
     under Whitmore v. Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012), to
     determine whether, after considering all of the evidence in the record, the agency
     can prove by clear and convincing evidence that it would have taken the same
     personnel action. See Herman v. Department of Justice, 119 M.S.P.R. 642, ¶ 15
     (2013). In reaching this conclusion, we recognize that some of the administrative
                                                                                        7

     judge’s prior alternative findings may support the conclusion that the agency
     would have taken the challenged personnel action in the absence of the
     appellant’s protected disclosures. See, e.g., RID at 11, 13 (noting, inter alia, that
     the appellant refused to answer questions during an investigative inquiry into his
     conduct and that he was uncooperative, and that the proposing and deciding
     officials did not have a strong motive to retaliate because their conduct was not
     directly implicated by the appellant’s disclosures concerning the possible ULP
     charge). The record, however, also reflects that the deciding official was aware
     of the appellant’s allegation that the agency had committed a ULP before the
     agency proposed the appellant’s suspension, and that she also expressed
     skepticism about the appellant’s allegation of a ULP prior to rendering a decision
     on his proposed suspension.       See RAF, Tab 31 at 127 (deciding official’s
     statement to the OIG that the appellant’s allegation of a ULP “is unfounded and
     not credible”).   We note, moreover, that the agency’s decision to suspend the
     appellant was rendered after the appellant made his protected disclosures to the
     Regional Commissioner and the OIG, and the fact that the agency had begun its
     investigation into the appellant’s conduct prior to his disclosures does not negate
     the possibility that the decision to suspend him was based upon his protected
     whistleblowing. See RID at 13.
¶9         The administrative judge is in the best position to consider all of the
     evidence, render any necessary credibility determinations, and reissue an initial
     decision addressing whether the agency can establish by clear and convincing
     evidence that it would have taken the same personnel action in the absence of the
     appellant’s protected disclosures. See, e.g., Mithen v. Department of Veterans
     Affairs, 119 M.S.P.R. 215, ¶ 19 (2013) (remanding the case to the administrative
     judge for an assessment of the clear and convincing issue, including rendering
     credibility       determinations);       Massie        v.       Department         of
     Transportation, 118 M.S.P.R. 308, ¶¶ 7-8 (2012) (remanding the case for
     consideration of the evidence as a whole under Whitmore).             Although the
                                                                               8

administrative judge has already held a hearing in this case, we find that the
administrative judge should provide the appellant with the option of requesting a
supplemental hearing, and after considering all of the evidence and rendering any
necessary credibility determinations, the administrative judge should reissue her
initial decision addressing whether the agency can establish by clear and
convincing evidence that it would have suspended the appellant for 14 days in the
absence of his protected disclosures.     See Durr v. Department of Veterans
Affairs, 119 M.S.P.R. 195, ¶ 18 (2013) (remanding case and providing the
appellant the option of requesting a supplemental hearing).

                                    ORDER
     For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order.




FOR THE BOARD:                           ______________________________
                                         William D. Spencer
                                         Clerk of the Board
Washington, D.C.
