                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD

                                      2014 MSPB 41
                             Docket No. SF-0752-13-0018-I-1

                                    Jessica Shannon,
                                        Appellant,
                                             v.
                            Department of Veterans Affairs,
                                          Agency.
                                        June 5, 2014


           Michael W. Franell, Medford, Oregon, for the appellant.

           Leigh E. Schwarz, Esquire, Portland, Oregon, 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 the initial decision, which
     affirmed her removal.      For the reasons set forth below, we GRANT the
     appellant’s petition for review, AFFIRM those parts of the initial decision finding
     that the agency proved its charge by preponderant evidence, there was a nexus
     between the charge and the efficiency of the service, and the appellant failed to
     prove her affirmative defense of harmful procedural error.      We VACATE the
     portion of the initial decision finding that the appellant failed to prove her
                                                                                            2

     whistleblower reprisal claim and REMAND the appeal for further adjudication
     consistent with this Opinion and Order.

                                          BACKGROUND
¶2            Effective September 21, 2012, the agency removed the appellant from her
     position     as   a   Medical     Administrative      Assistant 1   with   the   Veterans
     Administration’s Southern Oregon Rehabilitation Center and Clinics (SORCC)
     based on the following two charges:               (1) inappropriate relationship with a
     veteran; and (2) failure to follow policy.           Initial Appeal File (IAF), Tab 4
     at 15-18.
¶3            In support of the first charge, the agency alleged that, between
     November 2011 and April 2012, the appellant had a personal relationship with a
     veteran who resided at the SORCC, evidenced in Facebook messages from
     February 20, 2012, to April 3, 2012, and personal contact, including a January 6,
     2012 encounter with the veteran in the Administrative Officer of the Day (AOD)
     work area. IAF, Tab 4 at 36. The agency stated that the appellant’s conduct
     violated      SORCC’s       Medical      Center     Memorandum        (MCM)       05-002,
     Patient/Employee Relationships, 2 which requires employees to avoid relationships



     1
      This position is also called Administrative Officer of the Day (AOD). Initial Appeal
     File (IAF), Tab 4 at 16 of 148.
     2
         Paragraph 2a of MCM 05-002 provides, in pertinent part:

              Employees shall not engage in any patient/employee relationship outside
              the boundaries of either assigned duties or professional standards which
              may result in or give the appearance of: (1) A personal, emotional,
              romantic, sexual and/or financial relationship that could influence or
              affect professional patient care goals or outcomes. Some examples of
              unacceptable/inappropriate behavior that could occur in social
              relationships include, but are not limited to, a staff member taking a
              patient to a non-sanctioned social event, or transporting patients in
              employee [sic] personal vehicle, inviting a patient to a staff member’s
              home, the exchange of personal gifts, letters, cards, phone calls and other
                                                                                           3

     that are not conducive to effective veteran care. Id. In support of the second
     charge, the agency alleged that the appellant failed to follow MCM 05-002 by
     entering into a personal relationship with a veteran resident and reiterated the
     specification under the first charge. Id. at 37.
¶4         The appellant filed a Board appeal of her removal and requested a hearing.
     IAF, Tab 1 at 3. She raised affirmative defenses of harmful procedural error and
     whistleblower reprisal. Id. at 5-16. After holding a hearing, the administrative
     judge issued an initial decision that affirmed the appellant’s removal.             IAF,
     Tab 17, Initial Decision (ID). The administrative judge merged the two charges
     based on her finding that proof of the first charge of inappropriate relationship
     with a veteran, which the agency alleged resulted in a violation of MCM 05-002,
     necessarily proved the second charge that the appellant failed to follow MCM
     05-002.   ID at 9.   The administrative judge found that the agency proved the
     charge by preponderant evidence, ID at 10-14; that there is a nexus between the
     sustained charge and both the appellant’s ability to accomplish her duties as well
     as the legitimate governmental interest of SORCC’s ability to treat veterans, ID
     at 14-15; and that the penalty of removal is reasonable, ID at 23-25.               The
     administrative judge also found that the appellant failed to prove her affirmative
     defenses. ID at 15-23.
¶5         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1. The agency has filed a response in opposition to the petition for
     review. PFR File, Tab 3.




           items representing expressions of affection and/or sexual interest, sensual
           and sexual touch is never appropriate.
     IAF, Tab 4 at 72.
                                                                                      4

                                        ANALYSIS

     The administrative judge correctly found that the agency proved the charge by
     preponderant evidence.
¶6         In finding that the agency proved the charge, the administrative judge fully
     set forth the facts underlying the charge, considered the testimony of witnesses,
     including the appellant, and made reasoned credibility determinations consistent
     with the factors for resolving credibility issues set forth in Hillen v. Department
     of the Army, 35 M.S.P.R. 453 , 458 (1987). ID at 2-14. The administrative judge
     found that the appellant was not a credible witness and, therefore, did not credit
     her testimony. ID at 10. More specifically, the administrative judge found that
     the appellant lacked candor, provided improbable explanations of her conduct,
     and gave inconsistent statements from the agency’s investigation into her conduct
     through the hearing. ID at 10. The administrative judge further found that the
     evidence clearly contradicts the appellant’s version of events and that her denial
     of an inappropriate relationship with a veteran resident and her claim that she was
     unaware that her relationship with the veteran was against agency policy were
     inherently improbable. ID at 10.
¶7         As to the allegations concerning the appellant’s Facebook conversations
     with the veteran, the administrative judge found that the Facebook messages show
     that the appellant had an inappropriate relationship with the veteran. ID at 10. In
     support of this finding, the administrative judge noted that, in her Facebook
     conversations with the veteran, the appellant complained to him about work and
     the veteran gave her advice and support on how to care for her father and handle
     him emotionally when he was ill. ID at 10. In addition, the administrative judge
     noted that a few days after a Facebook conversation in which the veteran told the
     appellant that he had missed her the past 3 days and that he was going to give her
     a massage with lotion and asked if she would give him a massage that night, the
     appellant engaged in Facebook conversations with the veteran from her home in
     which she told him that she was wearing socks, a bra, and underwear. ID at 11.
                                                                                      5

¶8         The administrative judge also noted that, while the appellant tried to
     characterize her relationship with the veteran as trivial during the proceedings in
     this appeal, she admitted in a Facebook conversation with the veteran that they
     were spending more than nominal time together. ID at 12. The administrative
     judge further found that the appellant knew the Facebook exchanges were
     inappropriate because she stated to the veteran that she hoped no one could read
     their Facebook messages.     ID at 13 (citing IAF, Tab 14 at 101 of 135).      The
     administrative judge determined that the Facebook conversations violated MCM
     05-002 because, at a minimum, the exchanges gave the appearance of a personal
     and emotional relationship between the appellant and the veteran, which is
     expressly prohibited. ID at 13-14.
¶9         Turning to the allegations of personal contacts between the appellant and
     the veteran, the administrative judge credited AOD J.B.’s testimony regarding the
     appellant’s January 6, 2012 encounter with the veteran over that of the appellant,
     whom the administrative judge found “less than truthful.”       ID at 2, 13.   The
     administrative judge noted that, while the appellant made it appear as though the
     encounter was a quick professional exchange in which she told the veteran she
     was unable to assist him and that it took place outside the AOD office, J.B.
     provided detailed, direct, and forthright testimony disputing the appellant’s
     characterization. ID at 13 (citing IAF, Tab 4 at 140). The administrative judge
     found that J.B.’s testimony showed that she surprised the appellant and the
     veteran as they were exiting the AOD office together and that there was no
     professional reason for the veteran to be in the AOD office.       ID at 13.   The
     administrative judge found that the January 6 meeting and other meetings alluded
     to or planned in the Facebook conversations between the appellant and the
     veteran were inappropriate and violated MCM 05-002 because, at the very least,
     the meetings gave the appearance of a personal relationship. ID at 13. Based on
     her findings that the appellant’s Facebook conversations and personal contacts
     with the veteran were inappropriate and violated MCM 05-002, the administrative
                                                                                          6

      judge found that the agency proved the charge by preponderant evidence.            ID
      at 14.
¶10            On review the appellant argues that the administrative judge erred in
      finding that she violated MCM 05-002. PFR File, Tab 1 at 5 of 12. Her argument
      concerning the charge essentially consists of a recitation of her hearing testimony
      that she did not engage in the inappropriate conduct listed in MCM 05-002. Id.
      at 7. In particular, the appellant states that, during the hearing, she testified that
      she never accepted any gifts from the veteran, the veteran had never been to her
      house, and she never provided the veteran a ride anywhere.          Id.   She further
      asserts that, although the veteran “made overtures of a sensual nature,” she did
      not respond to them, and the agency “cannot prove that she was ever guilty of
      expressing sexual interest, affection or sensual or sexual touch to the
      veteran.” Id.
¶11            This argument is unavailing.   As the administrative judge stated in the
      initial decision, whether the appellant was dating the veteran or having a sexual
      relationship with the veteran is “beside the point.” ID at 10. Paragraph 2.a(1) of
      MCM 05-002 states that the types of inappropriate behavior that could occur in
      social relationships are not limited to the specific examples of inappropriate
      conduct described therein.       See IAF, Tab 4 at 72.       Thus, contrary to the
      appellant’s apparent assumption, the fact that she did not engage in the specific
      types of inappropriate conduct set forth in MCM 05-002 does not mean that she
      did not violate the policy.
¶12            On review the appellant also challenges the administrative judge’s finding
      that her Facebook conversations with the veteran violated MCM 05-002. PFR
      File, Tab 1 at 6 (quoting ID at 13).      The appellant asserts that she “simply
      engaged in Facebook conversations with the veteran” and treated him the same as
      she would treat anyone else.      Id. at 7.   She contends that the administrative
      judge’s finding that the Facebook conversations “represented anything else” is
      not supported. Id.
                                                                                         7

¶13         As noted above, in the initial decision, the administrative judge rejected the
      appellant’s efforts to characterize her relationship with the veteran as trivial. The
      administrative judge found that the appellant was not truthful by downplaying the
      nature of the relationship and attempting to characterize the relationship as
      consisting of innocent and trivial Facebook chatting. ID at 11. The appellant’s
      contention on review that she simply engaged in Facebook conversations with the
      veteran is essentially mere disagreement with the administrative judge’s
      credibility determinations and fact findings.     Thus, it provides no reason to
      disturb the initial decision. See Haebe v. Department of Justice, 288 F.3d 1288 ,
      1301 (Fed. Cir. 2002); Weaver v. Department of the Navy, 2 M.S.P.R. 129 ,
      133-34 (1980).

      The administrative judge properly considered hearsay evidence.
¶14         The appellant also argues on review that the administrative judge erred by
      considering the veteran’s statements in support of her removal despite the fact
      that she did not have an opportunity to confront or cross-examine the veteran
      because the agency did not produce him as a witness during the hearing. PFR
      File, Tab 1 at 7. The appellant asserts that, when hearsay evidence is admitted,
      “it is generally made by a third party who has nothing to gain or lose by making
      the statements and it has other indicia of being the truth.” Id. at 8. The appellant
      contends that these circumstances are absent here because the veteran had
      “allusions [sic] of a relationship with [her] . . . which did not come to pass” as
      well as “a history of alleging sexual relations with other employees.”            Id.
      Therefore, the appellant asserts, the administrative judge should not have
      considered the veteran’s statements. Id.
¶15         This argument is unpersuasive. As the appellant acknowledges, hearsay
      evidence is admissible in Board proceedings, and the assessment of the probative
      value of hearsay evidence necessarily depends on the circumstances of each case.
      Borninkhof v. Department of Justice, 5 M.S.P.R. 77 , 83-87 (1981).           Factors
      affecting the weight to be accorded to hearsay evidence include: the consistency
                                                                                          8

      of declarants’ accounts with other information in the case; whether corroboration
      for statements can otherwise be found in the agency record; and the absence of
      contradictory evidence. Id. at 87.
¶16         In crediting the veteran’s statements that he had a personal relationship
      with the appellant, the administrative judge found the veteran’s allegations have
      merit, not only because of the Facebook conversations, but also because he was
      aware that Business Office Chief M.M., who was the appellant’s supervisor as
      well as the proposing official, had asked her to write a statement about her
      relationship with him, and he knew what was in the statement. ID at 14 (citing
      IAF, Tab 4 at 50, 62-63). The administrative judge found that the only way the
      veteran could have known this information is if the appellant told him this, which
      is indicative of her having a personal relationship with him. Id. In light of these
      circumstances, we discern no error in the administrative judge’s decision to credit
      the veteran’s statements.
¶17         Moreover, while the administrative judge credited the veteran’s statements
      that he had a relationship with the appellant, she did not rely solely on this
      hearsay evidence to sustain the charge. As discussed above, the initial decision
      shows that the administrative judge based her finding that the agency proved its
      charge on the hearing testimony, the documentary evidence, and the inherent
      implausibility of the appellant’s denial of an inappropriate relationship with the
      veteran, not on the veteran’s hearsay statement. ID at 2-14. Thus, we find that
      the administrative judge did not give improper weight to the veteran’s statement.

      The administrative judge correctly found that the agency established nexus.
¶18         The appellant does not offer any specific argument on review challenging
      the administrative judge’s finding that the agency established a nexus between the
      sustained charge and both the appellant’s ability to accomplish her duties
      satisfactorily and SORCC’s ability to treat veterans.   ID at 14-15, 23-25. Based
      on our review of the record, we discern no reason to disturb this finding.
                                                                                       9

      The administrative judge correctly found that the appellant failed to prove
      harmful procedural error.
¶19         On review, the appellant renews her argument that the agency committed
      harmful procedural error by violating agency Directive 5021, Part I, Chapter 3,
      Section 7(d), which provides that “material which cannot be disclosed to the
      employee or to his or her representative cannot be used to support the reasons in a
      notice of proposed adverse action and must not be included in the evidence file.”
      PFR File, Tab 1 at 8-9 (citing IAF, Tab 13 at 19 of 29); IAF, Tab 1 at 9. The
      appellant asserts that, because the agency redacted the veteran’s name from the
      copy of the record it provided her representative in conjunction with her removal,
      the agency should not have used the veteran’s testimony to support the reasons
      for her removal and should not have included that testimony in the evidence file.
      PFR File, Tab 1 at 9.
¶20         The administrative judge rejected this argument in the initial decision,
      finding that the appellant knew the identity of the veteran and that she has not
      alleged otherwise. ID at 21. Therefore, the administrative judge correctly found
      that, even if the agency violated its Directive, the appellant was not harmed and
      the evidence provided to her allowed her a full opportunity to make a meaningful
      reply. ID at 22.

      Further adjudication is necessary regarding the appellant’s whistleblower
      reprisal claim.
¶21         In an adverse action appeal, such as this, an appellant’s claim of
      whistleblower reprisal is treated as an affirmative defense.           Shibuya v.
      Department of Agriculture, 119 M.S.P.R. 537 , ¶ 19 (2013).       Once the agency
      proves its adverse action case by a preponderance of the evidence, the appellant
      must show by preponderant evidence that she engaged in whistleblowing activity
      by making a protected disclosure under 5 U.S.C. § 2302 (b)(8) and that the
      disclosure was a contributing factor in the agency’s personnel action. Id.
                                                                                          10

¶22         A protected disclosure is a disclosure of information that the 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.           5 U.S.C. § 2302 (b)(8)(A);
      Chambers v. Department of the Interior, 515 F.3d 1362 , 1367 (Fed. Cir. 2008).
      The proper test for assessing whether a protected disclosure occurred is an
      objective one: Could a disinterested observer with knowledge of the essential
      facts known to and readily ascertainable by the employee reasonably conclude
      that the actions of the government evidence one of the categories of wrongdoing
      identified in 5 U.S.C. § 2302 (b)(8)(A)? 3     Lachance v. White, 174 F.3d 1378 ,
      1381 (Fed. Cir. 1999).
¶23         The most common way of proving that a disclosure was a contributing
      factor in a personnel action is the “knowledge/timing” test.              Wadhwa v.
      Department of Veterans Affairs, 110 M.S.P.R. 615 , ¶ 12, aff’d, 353 F. App’x 435
      (Fed. Cir. 2009). 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.
¶24         If the appellant shows that she made a protected disclosure and that the
      disclosure was a contributing factor in the agency’s personnel action, the burden
      of persuasion shifts to the agency to show by clear and convincing evidence that
      it would have taken the same personnel action in the absence of any protected
      disclosure. Hamilton v. Department of Veterans Affairs, 115 M.S.P.R. 673 , ¶ 25
      (2011). In determining whether an agency has made such a showing, the Board


      3
       The reasonable belief test is set forth in section 103 of the Whistleblower Protection
      Enhancement Act of 2012 (WPEA), Pub. L. No. 112-199, § 103, 126 Stat. 1465, 1467,
      which has been codified at 5 U.S.C. § 2302(b)(13).
                                                                                      11

      will consider the following factors: (1) the strength of the agency’s evidence in
      support of its action; (2) the existence and strength of any motive to retaliate on
      the part of the agency officials who were involved in the decision; and (3) any
      evidence that the agency takes similar actions against employees who are not
      whistleblowers but who are otherwise similarly situated.      See Carr v. Social
      Security Administration, 185 F.3d 1318 , 1323 (Fed. Cir. 1999).
¶25         As the administrative judge noted in the initial decision, ID at 16, during
      the proceedings below, the appellant alleged that, between November 7, 2011,
      and March 19, 2012, she made the following five disclosures to M.M.: (1) Lead
      AOD A.R. brought a laptop computer to work and watched movies during work
      hours; (2) A.R. and L.H., another agency employee, manipulated payroll records
      to allow each of them to take off from work on alternate Fridays; (3) A.R. was
      conducting his personal business during work time; (4) A.R. slapped M.M. on her
      bottom; and (5) J.B. would wrap herself in a blanket and sleep during her shift.
      IAF, Tab 1 at 10-15; Tab 14 at 16 of 135.
¶26         Regarding the first disclosure, the administrative judge noted that A.R.
      admitted during his hearing testimony that he watched a movie when working an
      18-hour shift in order to stay awake. ID at 20. The administrative judge found
      that the appellant reasonably believed that this conduct violated a rule or
      regulation.   ID at 20.    Applying the three factors set forth in Carr, the
      administrative judge found that the agency showed by clear and convincing
      evidence that it would have removed the appellant absent this disclosure.       ID
      at 20-21.
¶27         Addressing the remaining disclosures, the administrative judge found that
      “allegations two through five have no merit to them.”             ID at 18.   More
      specifically, regarding disclosures two through four, the administrative judge
      found that the appellant failed to show that she had a reasonable belief that a
      violation of law, rule, or regulation occurred.    ID at 18-19.     In making this
      finding, the administrative judge credited the agency’s witnesses’ testimony
                                                                                              12

      denying the conduct described in the disclosures over that of the appellant, and
      noted that the appellant failed to present any evidence supporting her allegations
      of wrongdoing prohibited by section 2302(b)(8)(A). ID at 18-19. Further, the
      administrative judge found that the facts alleged by the appellant in the third
      disclosure were “inherently improbable” and that it was more likely than not that
      the appellant “fabricated” the allegation in the fourth disclosure. ID at 18-19. As
      for the appellant’s fifth disclosure, the administrative judge again found that there
      was no evidence to support the appellant’s allegation and that the appellant failed
      to “meet her burden of proof that [J.B.] slept on the job . . . .” ID at 19.
¶28          In assessing whether the appellant’s disclosures were protected, we find the
      administrative judge applied an incorrect legal standard by requiring the appellant
      to prove that the alleged misconduct actually occurred. The test for protected
      status is not the truth of the matter disclosed but whether it was reasonably
      believed.    See Special Counsel v. Spears, 75 M.S.P.R. 639 , 654 (1997).
      Therefore, the appellant’s failure to prove that the alleged misconduct described
      in her disclosures occurred is not a valid basis for finding that those disclosures
      are not protected under 5 U.S.C. § 2302 (b)(8).            Rather, to prove that her
      disclosures are protected, the appellant need only show that a disinterested
      observer with knowledge of the essential facts known to and readily ascertainable
      by her could reasonably conclude that: (1) the alleged misconduct occurred; and
      (2) the alleged misconduct evidences one of the categories of wrongdoing
      identified in 5 U.S.C. § 2302 (b)(8)(A). 4



      4
        T he Senate report accompanying the WPEA expressly disapproves of requiring appellants
      asserting whistleblower reprisal claims to prove that the alleged misconduct occurred. See
      S. Rep. No. 112-155, at 8 (2012), reprinted in 2012 U.S.C.C.A.N. 589, 598 (stating that “ a
      cornerstone of 5 U.S.C. § 2302(b)(8) since its initial passage in 1978 has been that an
      employee need not ultimately prove any misconduct to qualify for whistleblower
      protection. All that is necessary is for the employee to have a reasonable belief that the
      information disclosed evidences a kind of misconduct listed in section 2302(b)(8).”)
                                                                                           13

¶29         Regarding the applicable evidentiary standard for proving that disclosures
      are protected, under section 103 of the WPEA, which has been codified at
      5 U.S.C. § 2302 (b)(13), any presumption relating to the propriety of performance
      of a duty by an employee whose conduct is the subject of a whistleblower
      disclosure may be rebutted by “substantial evidence.” 5 The Supreme Court has
      defined substantial evidence as “such relevant evidence as a reasonable mind
      might accept as adequate to support a conclusion.”            Richardson v. Perales,
      402 U.S. 389 , 401 (1971). It is “more than a mere scintilla of evidence but may
      be somewhat less than a preponderance.” Hays v. Sullivan, 907 F.2d 1453 , 1456
      (4th Cir. 1990) (quoting Laws v. Celebrezze, 368 F.2d 640 , 642 (4th Cir. 1966)).
¶30         In addition to applying the wrong evidentiary standard in assessing whether
      the appellant proved that her disclosures were protected, the administrative judge
      failed to make specific findings regarding the contributing factor element. To the
      extent that she addressed this element, her discussion was limited to her findings
      that: (1) all of the witnesses credibly testified that they did not see any of the
      Reports of Contact (ROCs) the appellant created (in which she described the
      alleged misconduct) while she was still employed by the agency; (2) there is
      nothing that shows the ROCs were made prior to the appellant receiving the
      Notice of Proposed Removal; and (3) there is no way to determine when the
      ROCs were drafted. ID at 20.
¶31         Significantly, however, the ROCs were not the only mechanism by which
      the appellant allegedly made her disclosures.         In her hearing testimony, the
      appellant stated that, in addition to submitting ROCs to M.M. documenting the
      alleged misconduct, she also discussed the misconduct described in the ROCs


      5
        The legislative history of the WPEA explains that this provision was enacted to ensure
      that no court would require “irrefragable proof” to rebut the presumption that “public
      officers and employees perform their duties in good faith and in accordance with the
      law and governing regulations.” S. Rep. No. 112-155, at 7.
                                                                                              14

      with M.M. at or around the time it occurred.             Hearing Compact Disc (HCD)
      (testimony of the appellant). In that case, whether M.M. saw the ROCs is of no
      consequence, as M.M. was nonetheless aware of the appellant’s disclosures
      several months before she issued the Notice of Proposed Removal. 6
¶32          Because the administrative judge applied an incorrect legal standard in
      analyzing the appellant’s disclosures and did not make any specific findings
      regarding the contributing factor element of the appellant’s whistleblower reprisal
      claim, we vacate the findings of the initial decision pertaining to that claim and
      remand the case for further adjudication and issuance of a new initial decision.
      On remand, the administrative judge shall afford the appellant an opportunity for
      discovery on her affirmative defense of whistleblower reprisal and a supplemental
      hearing on that affirmative defense if she requests one. As to disclosures two
      through five, 7 the administrative judge shall make findings regarding what the
      appellant   observed.       Applying       the   disinterested   observer   standard,   the
      administrative judge shall then determine whether the appellant reasonably
      believed that the alleged misconduct described in disclosures two through five
      occurred and, if so, whether the appellant reasonably believed that the alleged
      misconduct constituted wrongdoing as described in 5 U.S.C. § 2302 (b)(8). For
      each disclosure that she finds protected, the administrative judge shall then
      determine whether the disclosure was a contributing factor to the appellant’s


      6
        In her hearing testimony, M.M. acknowledged that the appellant raised the issues of
      A.R. watching a movie at work and M.B. sleeping during her shift (i.e., the subject of
      disclosures one and five) during her November 2011 performance appraisal. HCD
      (testimony of M.M.). Thus, it is undisputed that the proposing official had knowledge
      of at least two of the appellant’s five disclosures about 9 months before she issued the
      Notice of Proposed Removal.
      7
        We agree with the administrative          judge’s finding that the appellant reasonably
      believed that the conduct described         in her first disclosure, which A.R. admitted,
      constituted a violation of law, rule, or   regulation. ID at 20. Consequently, on remand,
      the administrative judge shall find that   disclosure protected.
                                                                                       15

      removal and, if so, determine whether the agency proved by clear and convincing
      evidence    that   it   would    have     removed     the   appellant   absent   her
      protected disclosure.
¶33         Because we are remanding the case for further proceedings regarding the
      appellant’s affirmative defense of whistleblower reprisal, the administrative judge
      must “issue a new initial decision that addresses this affirmative defense and its
      effect on the outcome of the appeal, if any, giving appropriate consideration to
      any additional relevant evidence developed on remand.” Viana v. Department of
      the Treasury, 114 M.S.P.R. 659 , ¶ 8 (2010).     However, if the appellant does not
      prevail on that affirmative defense on remand, the administrative judge may adopt
      her prior findings in her new initial decision. See id., ¶ 8.

                                              ORDER
¶34         For the reasons stated above, we REMAND this appeal to the Western
      Regional Office for further adjudication consistent with this Opinion and Order.



      FOR THE BOARD:


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