                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     LEE JOHNSON,                                    DOCKET NUMBER
                         Appellant,                  SF-1221-14-0828-W-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: June 4, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Peter B. Broida, Esquire, Arlington, Virginia, for the appellant.

           Tracey Rockenbach, Esquire, Washington Navy Yard, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1        The appellant has filed a petition for review of the initial decision, which
     denied her request for corrective action for alleged whistleblower reprisal.
     Generally, we grant petitions such as this one only when: the initial decision
     contains erroneous findings of material fact; the initial decision is based on an
     erroneous interpretation of statute or regulation or the erroneous application of

     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     the law to the facts of the case; the judge’s rulings during either the course of the
     appeal or the initial decision were not consistent with required procedures or
     involved an abuse of discretion, and the resulting error affected the outcome of
     the case; or new and material evidence or legal argument is available that, despite
     the petitioner’s due diligence, was not available when the record closed.        See
     Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
     § 1201.115). After fully considering the filings in this appeal, and based on the
     following points and authorities, we conclude that the petitioner has not
     established any basis under section 1201.115 for granting the petition for review.
     Therefore, we DENY the petition for review and AFFIRM the initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2        The appellant serves as a contract and procurement attorney for the agency.
     Initial Appeal File (IAF), Tab 1 at 53.      The agency proposed to suspend the
     appellant for 5 days based on her involvement in an investigation into allegations
     that a contracting officer with whom she worked, and with whom she had a
     contentious relationship, harassed an intern. Id. at 53-60. The record reflects that
     the appellant contacted the agency’s security office raising concerns about the
     contracting officer’s conduct and demeanor toward the intern and that, in
     response to her allegations, a security specialist was assigned to conduct an
     investigation.   Id. at 54.   At the security specialist’s request, the appellant
     arranged for a meeting between the intern and the security specialist, and together
     they interviewed the intern at an offsite location. Id. During the interview, the
     intern denied that the contracting officer acted in an inappropriate manner, and,
     after the interview concluded, the intern reported the appellant’s conduct to
     several agency employees, who in turn informed the appellant’s supervisor. Id.
¶3        The agency conducted its own investigation into the circumstances
     surrounding the appellant’s involvement in the offsite interview of the intern, and
     it solicited statements from the appellant, the security specialist, and the intern.
     Id. at 35-40, 50-51; IAF, Tab 4 at 88-95. In her statement, the intern explained
                                                                                      3

     that she felt trapped during the interview and that the appellant appeared to lose
     patience when she did not complain about the contracting officer’s behavior.
     IAF, Tab 4 at 90. Neither the appellant nor the security specialist denied meeting
     with the intern offsite, although both denied intimidating the intern during the
     meeting. IAF, Tab 1 at 35-40, 50-51.
¶4         Based on these events, the agency proposed to suspend the appellant for
     5 days on a charge of notoriously disgraceful conduct. See id. at 53-60. After
     receiving an oral response from the appellant, the deciding official reduced the
     proposed suspension to 3 days, citing the appellant’s length of service and
     rehabilitation potential. Id. at 62-64.
¶5         The appellant thereafter filed a complaint of whistleblower reprisal with the
     Office of Special Counsel (OSC), and she subsequently filed the instant
     individual right of action (IRA) appeal challenging her suspension. IAF, Tab 1.
     The appellant withdrew her request for a hearing, see IAF, Tab 15, and, based on
     the written record, the administrative judge found that the appellant established
     jurisdiction over her IRA appeal, but he denied the appellant’s request for
     corrective action on the merits, finding that the agency proved by clear and
     convincing evidence that it would have taken the same action in the absence of
     the appellant’s protected whistleblowing, see IAF, Tab 26, Initial Decision (ID).
     Specifically, the administrative judge found that the appellant established by
     preponderant evidence that she made a protected disclosure concerning an alleged
     violation of the agency’s standards of conduct for employees based on the
     contracting officer’s actions toward the intern and that the deciding official who
     imposed her suspension was aware of her disclosure because she raised it in her
     response to the proposed suspension. ID at 4-6. The administrative judge found,
     however, that the strength of the agency’s reasons for taking the action
     outweighed the fact that the appellant, but not the security specialist, was
     disciplined for her involvement in interviewing the intern and that the agency
                                                                                      4

     established by clear and convincing evidence that it imposed the suspension based
     upon her conduct and not upon her protected disclosure. ID at 7-11.
¶6        The appellant has filed a petition for review arguing that the administrative
     judge erred in denying her request for corrective action.     Petition for Review
     (PFR) File, Tab 1. Specifically, the appellant argues that the agency failed to
     prove its charge of notoriously disgraceful conduct and that, if the appellant’s
     actions were as egregious as alleged by the agency, the agency also should have
     disciplined the security specialist for his involvement in the investigation. Id.
     at 10-14, 21. The agency has filed a response in opposition to the petition for
     review, and the appellant has filed a reply. PFR File, Tabs 3-4. For the reasons
     that follow, we AFFIRM the administrative judge’s denial of corrective action.
¶7        Where, as here, an appellant exhausts her administrative remedy with OSC
     and establishes the Board’s jurisdiction in an IRA appeal, the appellant then must
     establish a prima facie case of whistleblower retaliation by proving by
     preponderant evidence that she made a protected disclosure that was a
     contributing factor in a personnel action taken against her. 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 this prima facie showing, the burden shifts to the agency to prove
     by clear and convincing evidence that it would have taken the same personnel
     action in the absence of the protected disclosure.    Lu, 122 M.S.P.R. 335, ¶ 7.
     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; it is a higher standard than the “preponderance of the evidence”
     standard.   Sutton v. Department of Justice, 94 M.S.P.R. 4, ¶ 18 (2003), aff’d,
     97 F. App’x 322 (Fed. Cir. 2004); 5 C.F.R. § 1209.4(e). In determining whether
     an agency has met this burden, the Board will consider the following factors:
     (1) the strength of the agency’s evidence in support of the 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
                                                                                          5

     takes similar actions against employees who are not whistleblowers but who are
     otherwise similarly situated. Lu, 122 M.S.P.R. 335, ¶ 7 (citing Carr v. Social
     Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999)). The Board does
     not view these factors as discrete elements, each of which the agency must prove
     by clear and convincing evidence.        Rather, the Board will weigh the factors
     together to determine whether the evidence is clear and convincing as a whole.
     Id.
¶8         Upon review of the record below, we agree with the administrative judge
     that the appellant established by preponderant evidence that she reasonably
     believed she was disclosing a violation of agency policy when she reported to the
     agency’s security office her concerns about the contracting officer’s conduct
     toward the intern.       ID at 4-5 (citing Reed v. Department of Veterans
     Affairs, 122 M.S.P.R. 165, ¶ 17 (2015) (disclosure of failure to follow an agency
     handbook is a protected disclosure under section 2302(b)(8)). We further agree
     that the appellant established that this disclosure was a contributing factor in her
     3-day suspension under the knowledge and timing test because the deciding
     official was aware of her disclosure when he decided to impose the suspension,
     and his decision was made within a sufficiently close temporal nexus to her
     disclosure. ID at 6 (noting that the timing of the decision to impose the 3-day
     suspension satisfied the knowledge and timing test).           The agency has not
     challenged these findings on review, and we find no reason to differ with the
     administrative judge’s well-reasoned conclusions. 2



     2
       We disagree with the appellant’s suggestion on review that the agency’s decision not
     to challenge these findings in a cross-petition for review is probative of the ultimate
     issue in this appeal, i.e., whether the agency established by clear and convincing
     evidence that it would have taken the same personnel action in the absence of the
     protected whistleblowing. See PFR File, Tab 4 at 5; see also Shibuya v. Department of
     Agriculture, 119 M.S.P.R. 537, ¶ 13 (2013). We assign no weight to the agency’s
     decision not to file a cross-petition for review on some of the administrative judge’s
     findin gs.
                                                                                          6

¶9        We further agree with the administrative judge that the agency established
     by clear and convincing evidence that it suspended the appellant for 3 days
     because of her involvement in the interview of the intern following her disclosure
     and not based upon the disclosure itself. ID at 7-11. In reaching this conclusion,
     the administrative judge carefully balanced the Carr factors, and on review the
     appellant has presented no basis for us to disagree with his findings that the 3-day
     suspension would have occurred in the absence of her protected disclosure.
     Specifically, we find no merit to the appellant’s primary argument on review that
     the agency failed to prove its charge of notoriously disgraceful conduct by clear
     and convincing evidence.      See PFR File, Tab 1 at 10.          In an IRA appeal, the
     Board lacks the authority to adjudicate the merits of the underlying personnel
     action;   rather,   the   Board’s   jurisdiction   is   limited   to   adjudicating the
     whistleblower allegations. See Lu, 122 M.S.P.R. 335, ¶ 7. Although the Board
     will consider the strength of the agency’s justification for taking the challenged
     action as part of the clear and convincing analysis, the Board does not conduct a
     merits-based analysis of an agency’s charge of misconduct in an IRA appeal as it
     would in an appeal under chapter 75, and we decline to do so here. 3 See, e.g.,
     Marren v. Department of Justice, 51 M.S.P.R. 632, 638 (1991), aff’d, 980 F.2d

     3
        We similarly find unconvincing the appellant’s argument that the Board should
     consider why the agency ultimately used a specific charge of m isconduct rather than a
     generic conduct unbecoming charge as it had originally considered. See, e.g., PFR File,
     Tab 4 at 10 (explaining that “at the last moment” the agency proposed to suspend the
     appellant for notoriously disgraceful conduct rather than conduct unbecoming); IAF,
     Tab 19 at 95. The Board does not have general jurisdiction to decide the merits of the
     underlying personnel action, and it has held this proscription, for example, precludes
     the Board from considering alleged due process violations in connection with the
     underlying action. See Parikh v. Department of Veterans Affairs, 116 M.S.P.R. 197,
     ¶ 34 (2011). Where, as here, the appellant did not specifically challenge the agency’s
     decision to change the nature of its charge in her OSC complaint, we will not consider
     if such a change is a personnel action for purposes of an IRA appeal. See IAF, Tab 1
     at 29 (identifying the challenged personnel action as a proposed 5-day suspension,
     which the deciding official reduced to 3 days); see also Tucker v. Department of Health
     & Human Services, 73 M.S.P.R. 278, 283 (1997) (an employee must specifically inform
     OSC of the nature of her charge of wh istleblowing).
                                                                                         7

      745 (Fed. Cir. 1992) (Table), modified on other grounds by Robinson v. U.S.
      Postal Service, 63 M.S.P.R. 307, 323 n.13 (1994).
¶10        We further agree with the administrative judge that, based on the
      information available to the agency at the time of the appellant’s suspension, the
      agency presented a sufficiently strong reason for taking the personnel action. See
      Phillips v. Department of Transportation, 113 M.S.P.R. 73, ¶ 15 (2010); see also
      ID at 7-8. We concur with the administrative judge that the agency had a strong
      justification for suspending the appellant based upon her involvement in an
      interview of an agency intern without supervisory permission at an offsite
      location and that her history of personal conflict with the contracting officer, at a
      minimum, appears to have played a role in both her reporting the actions of the
      contracting officer to the agency’s security office and her involvement in the
      interview of the intern.    ID at 3, 7-8.     The Board has held that, even if an
      employee did not actually commit the alleged misconduct upon which the
      challenged personnel action is based, it does not necessarily follow that the action
      was taken in reprisal for protected whistleblowing. See Phillips, 113 M.S.P.R.
      73, ¶ 15 (citing Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1372-73
      (Fed. Cir. 2001)).    As the administrative judge, we limit our review of the
      agency’s explanation for taking the challenged personnel action to whether there
      is a sufficiently strong reason for taking the action based on the evidence
      available when the action occurred.         Id.   We agree that the agency had a
      sufficiently strong reason for disciplining the appellant due to her involvement in
      actions outside of her normal job duties and the lack of confidence the agency had
      in her ability to work with the contracting officer following this incident. See
      Redschlag v. Department of the Army, 89 M.S.P.R. 589, ¶ 90 (2001) (finding that
      the nature of the charges provided a sufficiently strong reason for taking the
      challenged action); see also ID at 9 (noting that both supervisory and subordinate
      employees lacked trust and confidence in the appellant following the incident).
                                                                                            8

¶11        Finally, we find adequate justification in the record for the agency’s having
      counseled the security specialist for his involvement in the incident. ID at 10.
      Unlike the appellant, who departed from her job duties and responsibilities as a
      contract and procurement attorney by participating in the interview of the intern,
      the security specialist responded to a report of harassment and acted within his
      job duties by interviewing the intern and investigating the claim of harassment.
      ID at 10-11. We also agree with the administrative judge that the employees’
      different positions of employment within the agency justifies the different levels
      of discipline imposed, and we find no reason to differ with the administrative
      judge’s conclusion that neither the proposing nor the deciding official had a
      strong motive to retaliate against the appellant. ID at 9-11.
¶12        Based on the foregoing, we agree with the administrative judge’s
      conclusion that the agency presented clear and convincing evidence that it would
      have suspended the appellant even in the absence of her protected disclosure. See
      Shibuya, 119 M.S.P.R. 537, ¶ 37 (a proper analysis of the clear and convincing
      issue requires all of the evidence to be considered) (citing Whitmore v.
      Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012)); see also McCarthy
      v. International Boundary & Water Commission, 116 M.S.P.R. 594, ¶ 66 (2011),
      aff’d, 497 F. App’x 4 (Fed. Cir. 2012), cert denied, 134 S. Ct. 386 (2013).
      Accordingly,   the   administrative   judge’s   denial   of     corrective   action   is
      AFFIRMED.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
           You have the right to request review of this final decision by the United
      States Court of Appeals for the Federal Circuit.
           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
                                                                                      9

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 want to request review of the Board’s decision concerning your
claims     of prohibited       personnel    practices   under 5   U.S.C.   § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both.    Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
        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 about the United States Court of Appeals for the Federal
Circuit 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.
Additional information about other courts of appeals can be found at their
respective           websites,             which         can        be         accessed
through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
        If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
                                                                               10

at   http://www.mspb.gov/probono for      information    regarding    pro    bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit.   The 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.
