                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                      2016 MSPB 30

                            Docket No. CH-1221-15-0517-W-1

                                 Cleophas Bradley, Jr.,
                                        Appellant,
                                             v.
                          Department of Homeland Security,
                                         Agency.
                                     September 1, 2016

           Joyce E. Kitchens, Esquire, Atlanta, Georgia, for the appellant.

           Robert Gerleman, Washington, D.C., 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
     dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For
     the reasons discussed below, we GRANT the appellant’s petition for review,
     REVERSE the initial decision, and REMAND the case to the regional office for
     further adjudication in accordance with this Order.

                                     BACKGROUND
¶2         The appellant is employed at the Federal Protective Service (FPS or the
     agency) as a GS-14 Deputy Regional Director for Region 5. Initial Appeal File
     (IAF), Tab 4 at 16. The appellant filed a previous IRA appeal alleging that he
     had been retaliated against for making protected whistleblowing disclosures when
                                                                                      2

     the agency conducted a series of investigations and issued him a letter of
     counseling.    Bradley v. Department of Homeland Security, MSPB Docket
     No. CH-1221-14-0831-W-2, Initial Decision (Feb. 4, 2015).         The appellant’s
     prior IRA appeal was dismissed based on a finding that he had not made a
     nonfrivolous allegation that the agency took a personnel action as defined by
     5 U.S.C. § 2302(a)(2). Id.
¶3         The appellant filed the current IRA appeal, identifying the same protected
     disclosures and retaliatory actions, and additionally alleging that he was not
     selected for the Region 5 Director position in retaliation for whistleblowing
     disclosures. IAF, Tab 1. The administrative judge issued a show cause order
     advising the appellant of the jurisdictional requirements for an IRA appeal based
     on retaliation for protected disclosures under 5 U.S.C. § 2302(b)(8). IAF, Tab 3.
     She directed the appellant to identify the protected disclosures and personnel
     actions that were the subject of his IRA appeal and to present evidence and
     argument establishing a nonfrivolous allegation of jurisdiction. Id. at 6-7. The
     administrative judge granted the agency’s motion to stay discovery pending a
     ruling on jurisdiction. IAF, Tab 16.
¶4         After considering the parties’ jurisdictional submissions, the administrative
     judge issued a decision, without holding a hearing, finding that the appellant
     failed to make a nonfrivolous allegation of jurisdiction because he had not
     nonfrivolously alleged that his disclosures were a contributing factor in the
     agency’s decision not to select him for the Director position. IAF, Tab 19, Initial
     Decision (ID) at 10-13.      Applying the doctrine of collateral estoppel, the
     administrative judge declined to address the appellant’s allegations that he was
     subjected to retaliatory investigations and a retaliatory letter of counseling
     because those personnel actions were raised in his prior appeal. ID at 7-10.
¶5         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1.   The appellant also has filed numerous documents relating to his
     claims as a supplement to his petition for review. PFR File, Tab 2. The agency
                                                                                          3

     has filed an opposition arguing that the appellant’s petition does not satisfy the
     criteria for review. PFR File, Tab 4.

                                          ANALYSIS
¶6         The Board has jurisdiction over an IRA appeal based on whistleblower
     reprisal under the Whistleblower Protection Act (WPA) if the appellant has
     exhausted his administrative remedies before the Office of Special Counsel
     (OSC) and makes nonfrivolous allegations of the following: (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. 1 Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371
     (Fed. Cir. 2001). A nonfrivolous allegation is an assertion that, if proven, could
     establish the matter at issue. Lewis v. Department of Defense, 123 M.S.P.R. 255,
     ¶ 7 (2016); 5 C.F.R. § 1201.4(s).        Whether allegations are nonfrivolous is
     determined on the basis of the written record.         Usharauli v. Department of
     Health & Human Services, 116 M.S.P.R. 383, ¶ 19 (2011).                Any doubt or
     ambiguity as to whether the appellant made nonfrivolous jurisdictional
     allegations should be resolved in favor of finding jurisdiction. Id. The parties
     do not dispute, and we find no reason to disturb, the administrative judge’s
     finding that the appellant sought corrective action from OSC based on his
     allegation that he was being retaliated against for whistleblowing disclosures, and
     he did not receive notice within 120 days that OSC would seek corrective action




     1
       The Whistleblower Protection Enhancement Act (WPEA) clarified, in relevant part,
     that a disclosure made to a supervisor or to a person who participated in the activity
     that is the subject of the disclosure, or a disclosure made during the normal course of
     duties of an employee are not excluded from 5 U.S.C. § 2302(b)(8). Day v. Department
     of Homeland Security, 119 M.S.P.R. 589, ¶¶ 18-26 (2013).
                                                                                          4

     on his behalf. 2      IAF, Tab 1 at 7, 22-24, Tab 4 at 10-41; see 5 U.S.C.
     § 1214(a)(3)(B).
     The appellant nonfrivolously alleged that he made protected disclosures.
¶7         A protected disclosure is a disclosure of information that the appellant
     reasonably believes evidences any 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). At the
     jurisdictional stage, the appellant only is burdened with making a nonfrivolous
     allegation that he reasonably believed that his disclosure evidenced one of the
     circumstances described in 5 U.S.C. § 2302(b)(8).        Schoenig v. Department of
     Justice, 120 M.S.P.R. 318, ¶ 8 (2013). The proper test for determining whether
     an employee had a reasonable belief that his disclosures were protected is
     whether a disinterested observer with knowledge of the essential facts known to
     and readily ascertainable by the employee could reasonably conclude that the
     disclosure   evidenced    one   of   the   circumstances    described    in   5 U.S.C.
     § 2302(b)(8). Schoenig, 120 M.S.P.R. 318, ¶ 8.
¶8         The administrative judge found that, by a generous reading of the
     appellant’s OSC complaint, he alleged that he made approximately nine protected
     disclosures between March 23 and September 2, 2011. 3 ID at 8. The appellant


     2
       The administrative judge also found that, to the extent that the appellant’s filings
     before the Board contained additional alleged whistleblowing disclosures that were not
     included in the complaint to OSC, they could not be considered because there was
     insufficient evidence showing that the appellant had exhausted his remedies on those
     allegations before OSC. ID at 6-7. We agree with this finding.
     3
       The administrative judge also found that additional alleged disclosures that occurred
     after the personnel actions at issue could not have been a contributing factor in those
     personnel actions. ID at 8 n.2. We find no reason to disturb this finding on review.
     See Mason v. Department of Homeland Security, 116 M.S.P.R. 135, ¶ 27 (2011)
     (finding that disclosures occurring after the personnel actions at issue could not have
     been contributing factors in those actions).
                                                                                    5

identified ten disclosures in the complaint he filed with OSC. 4         IAF, Tab 4
at 16‑32. The appellant argues that all of the disclosures identified are protected.
PFR File, Tab 1 at 4. He also argues that he cannot address the “deficiencies” in
the disclosure that the administrative judge found was not protected because she
did not state which disclosure she found not protected. Id. at 5. After careful
consideration of the appellant’s OSC complaint, we find that he nonfrivolously
alleged that he made the following protected disclosures:
      1. An email that the appellant wrote was forwarded by his first-level
         supervisor to the FPS Director, Deputy Director, and Chief of
         Staff, in which he reported that ten contract security officers
         had not received updated suitability determinations in violation of
         the terms of the contract and FPS policies and procedures, IAF,
         Tab 4 at 17;
      2. On March 30, 2011, the appellant’s first-level supervisor
         disclosed to the FPS Deputy Director that he and the appellant
         had determined that 224 contract security officers within the
         Region did not have the appropriate suitability determinations and
         172 security officers were improperly working on the regional
         contracts, id. at 18;
      3. On May 10 and 18, 2011, the appellant’s first-level supervisor
         disclosed to the Assistant Director of Field Operations that he and
         the appellant had determined that 224 contract security officers
         within the Region did not have the appropriate suitability




4
  He also stated that his witness interview with OSC regarding his supervisor’s
complaint was a contributing factor in the agency’s decision not to select him for the
position at issue. IAF, Tab 4 at 32. The appellant was interviewed by OSC on
August 9, 2012, and provided OSC with documents on October 11, 2012. Id. at 25.
The WPEA went into effect later, on December 27, 2012. Miller v. Federal Deposit
Insurance Corporation, 122 M.S.P.R. 3, ¶ 14 (2014), aff’d, 626 F. App’x 261 (Fed. Cir.
2015), cert. denied, 136 S. Ct. 1510 (2016). The IRA appeals rights section of the
WPEA as it pertains to the prohibited personnel practices described at 5 U.S.C.
§ 2302(b)(9)(B)-(C) does not apply retroactively. Colbert v. Department of Veterans
Affairs, 121 M.S.P.R. 677, ¶ 7 (2014).
                                                                                           6

               determinations and 172 security officers were improperly
               working, id. at 18-19; 5
           4. The appellant and his first-level supervisor disclosed to the FPS
              Director that the March 18, 2011 incident in which an explosive
              device passed through building security in Detroit was not solely
              the responsibility of contractors, and Federal employees also
              appeared to have contributed to the incident, id. at 19-20;
           5. The appellant disclosed to an Assistant General Counsel that the
              Director of FPS provided false testimony to Congress, id. at 20;
              and
           6. The appellant and his first-level supervisor wrote a memorandum
              for the FPS Director describing the details of the March 18, 2011
              incident in which an explosive device passed through building
              security in Detroit, detailing their disclosures concerning the
              investigation of this incident, and stating the possibility of
              disciplinary action as a result of this incident, id. at 22-23.
     We find that the appellant nonfrivolously alleged that a reasonable person would
     have believed that disclosures (1)-(4) and (6) disclosed a violation of law, rule, or
     regulation, gross mismanagement, and a substantial and specific danger to public
     health and safety. In addition, we find that the appellant nonfrivolously alleged
     that a reasonable person would have believed that disclosure (5) disclosed a
     violation of law, rule, or regulation.
¶9         For the following reasons, we find that the appellant failed to
     nonfrivolously allege that he made any other protected disclosures.                 The


     5
       The appellant describes the alleged May 18 disclosure as a reminder of the May 10
     disclosure to the same individual. IAF, Tab 4 at 19. The appellant enumerated them as
     separate disclosures #3 and #4 in his complaint. Id. at 18-19. For purposes of our
     jurisdictional analysis at this stage of the proceeding, we find that the appellant has
     made a nonfrivolous allegation that the information disclosed on these dates evidenced
     a violation of law, rule, or regulation, gross mismanagement, and a substantial and
     specific danger to public health and safety, and that the agency at least perceived the
     appellant as a whistleblower based on his supervisor’s disclosure of information
     attributable to the appellant. See, e.g., Rumsey v. Department of Justice, 120 M.S.P.R.
     259, ¶ 7 (2013) (stating that one who is perceived as a whistleblower is entitled to the
     protection of the WPA, even if he has not made protected disclosures).
                                                                                         7

      disclosure the appellant identified as “disclosure #7” describes a meeting in
      which he and his supervisor disputed the claims of the FPS Director, Deputy
      Director, and Assistant Director of Field Operations that they were not aware that
      FPS employees were implicated in the incident involving an explosive device that
      occurred on March 18, 2011. IAF, Tab 4 at 22. The appellant’s description of
      this meeting does not include an allegation of a disclosure of information. If, as
      the appellant alleges, the Director, Deputy Director, and Assistant Director of
      Field Operations already knew that FPS employees were involved in the incident
      prior to this meeting, then he has not alleged a communication or transmission of
      information. An alleged disagreement about what information was known by the
      attendees, even if proven, could not meet the statutory definition of a
      “disclosure.” 5 U.S.C. § 2302(a)(2)(D).
¶10         In the disclosure that the appellant identified as “disclosure #9,” he alleges
      that the Assistant Director of Field Operations ordered him and his first-level
      supervisor to shut down their investigation into whether FPS employees
      committed misconduct in connection with the March 18, 2011 explosive device
      incident. IAF, Tab 4 at 23. The appellant asserts that, in response, he told the
      Assistant Director of Field Operations that he “was not the fall guy” and asked
      the Assistant Director of Field Operations to put his directive in writing. Id. The
      appellant further contends that his first-level supervisor advised the Director that
      the instruction to shut down the investigation was “inappropriate.”        Id.   The
      appellant’s description of his statements does not constitute a nonfrivolous
      allegation of a protected disclosure. In his pleadings, the appellant asserts that he
      was told to shut down the investigation to “cover up” the fact that the FPS
      Director had provided false testimony to Congress, and that there was “a
      violation of law, rule or regulation; substantial[,] specific danger to public health
      or safety, abuse of authority, and gross waste of funds.” Id. at 23, 35. However,
      he did not allege that he conveyed these concerns to anyone at the time of the
      events in question. While the appellant claims that his first-level supervisor told
                                                                                        8

      the Director that shutting down the investigation was “inappropriate,” he does not
      contend that he personally made such a statement.           Thus, the appellant’s
      description of the incident he identified as disclosure #9 does not constitute a
      nonfrivolous allegation that he made a protected disclosure within the
      Board’s jurisdiction.
¶11         The disclosure the appellant identified as “disclosure #10” describes a
      conference call that he was asked to attend “in silence.” IAF, Tab 4 at 24-25.
      During the call, other agency managers allegedly discussed the improper storage
      of classified materials by two FPS employees in Region 5, who had missed
      required annual training on this topic. Id. There was some discussion about who
      was responsible for ensuring that the employees were trained, and the appellant
      allegedly wrote on a note pad that it was a headquarters, and not a regional,
      responsibility. Id. The alleged difference of opinion concerning a policy, i.e.,
      whether headquarters or the regional office was responsible for ensuring that FPS
      employees were properly trained, is not a nonfrivolous allegation of a protected
      disclosure. See Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶ 8 (2015)
      (stating that, even under the expanded protections afforded to whistleblowers
      under the WPEA, general philosophical or policy disagreements are not protected
      unless they separately constitute a protected disclosure of one of the categories of
      wrongdoing listed in 5 U.S.C. § 2302(b)(8)(A)).
      The appellant has made a nonfrivolous allegation that his disclosures were a
      contributing factor in his nonselection for the Director position.
¶12         The appellant argues that the administrative judge erred by finding that he
      had not made a nonfrivolous allegation that his protected disclosures were a
      contributing factor in his nonselection for the Director position. PFR File, Tab 1
      at 4-6.   The administrative judge found that the appellant had failed to
      nonfrivolously allege that his disclosures were a contributing factor because he
      had not satisfied the knowledge/timing test.          ID at 10-13; see 5 U.S.C.
      § 1221(e)(1).   Specifically, the administrative judge found that, because the
                                                                                         9

      members of two panels that reviewed and scored the résumés of applicants for the
      Director position had no actual knowledge about the appellant’s disclosures, the
      appellant had not met his burden of showing that his disclosures were a
      contributing factor in the nonselections. ID at 12. The appellant argues that the
      first selection panel’s knowledge is irrelevant, given that the first time the
      vacancy was announced he was referred to the selecting official and interviewed
      for the position, and the selecting official had actual knowledge of his protected
      disclosures. PFR File, Tab 1 at 5. The appellant further argues that the second
      time the position was advertised, the interviewer and all of the selection panel
      members had imputed knowledge about his protected disclosures. Id.
¶13         To satisfy the contributing factor criterion at the jurisdictional stage of an
      IRA appeal, the appellant only need raise a nonfrivolous allegation that the fact
      or the content of the protected disclosure was one factor that tended to affect the
      personnel action in any way. Salerno v. Department of the Interior, 123 M.S.P.R.
      230, ¶ 13 (2016). One way to establish this criterion is the knowledge/timing
      test, under which an employee may nonfrivolously allege that the disclosure was
      a contributing factor in a personnel action through circumstantial evidence, such
      as evidence that the official who took 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.
¶14         The administrative judge stated that the obvious bar to the appellant’s
      claims of reprisal is that he has not alleged that the panel members had actual
      knowledge of his disclosures.     ID at 11.   We do not agree.     The language of
      5 U.S.C. § 1221(e)(1) makes clear that the knowledge/timing test is not the only
      way for an appellant to satisfy the contributing factor standard, and the legislative
      history of that statute indicates that the knowledge/timing test is but “one of the
      many possible ways” to satisfy the standard. Powers v. Department of the Navy,
                                                                                        10

      69 M.S.P.R.      150,   156   (1995)    (citing    S. Rep.     No. 622,   103d Cong.,
      2d Sess. 8 (1994)).
¶15         An appellant can show that a protected disclosure was a contributing factor
      in a personnel action by proving that the official taking the action had
      constructive knowledge of the protected disclosure.          Aquino v. Department of
      Homeland Security, 121 M.S.P.R. 35, ¶ 19 (2014). An appellant may establish an
      official’s constructive knowledge of a protected disclosure by demonstrating that
      an individual with actual knowledge of the disclosure influenced the official
      accused of taking the retaliatory action.    Id.   Lack of knowledge by a single
      official is not dispositive. Dorney v. Department of the Army, 117 M.S.P.R. 480,
      ¶ 12 (2012).     Rather, we must determine whether the agency took a wrongful
      personnel action against the appellant and whether that action should be
      corrected. Id.
¶16         The appellant alleges that senior agency officials with knowledge about his
      protected disclosures conspired with others not to select him for the Director
      position. IAF, Tab 1 at 40-41. At this stage, the appellant can meet his burden of
      proof without specifically identifying which management officials were
      responsible for the reprisal.    See Cahill v. Merit Systems Protection Board,
      821 F.3d 1370, 1373-75 (Fed. Cir. 2016). The burden to establish jurisdiction is
      the appellant’s, but, when the personnel action at issue is a nonselection, the
      evidence concerning who was involved in the selection process, what they knew
      about the appellant’s protected disclosures, and who may have influenced their
      decision is exclusively within the agency’s possession. See Parker v. Department
      of Housing & Urban Development, 106 M.S.P.R. 329, ¶ 9 (2007) (finding
      discovery appropriate to obtain materials in the agency’s possession that were
      potentially relevant to an employment practices claim regarding a nonselection
      for a position). The appellant claims that he was interviewed for the position by
      the selecting officials, while the agency asserts that the decision not to select the
      appellant was made by a panel. Compare IAF, Tab 1 at 39, with IAF, Tab 10
                                                                                      11

      at 28-29.   This factual dispute cannot be resolved in favor of the agency in
      determining whether the appellant has made a nonfrivolous allegation of
      jurisdiction. Ingram v. Department of the Army, 114 M.S.P.R. 43, ¶ 10 (2010)
      (stating that, in assessing whether the appellant has made nonfrivolous
      allegations, the administrative judge may consider the agency’s documentary
      evidence; however, to the extent the agency’s evidence constitutes mere factual
      contradiction of the appellant’s allegations, the administrative judge may not
      weigh evidence and resolve conflicting assertions and the agency’s evidence
      may not be dispositive). The appellant further alleges that he was interviewed for
      the position by the Deputy Director and Director, two managers who were the
      subject of several of his disclosures, and was told after the interview that the
      Director “felt as if [he] did not have a proper vision to be in the position.” IAF,
      Tab 4 at 30; PFR File, Tab 1 at 5.
¶17         Given the nature of the personnel action at issue, and reading the
      appellant’s allegations in context with the entire record, we find that he has
      nonfrivolously alleged that his whistleblowing disclosures were a contributing
      factor in the agency’s decision not to select him for the Director position.
                                           ORDER
¶18         For the reasons discussed above, we remand this case to the regional office
      for further adjudication. On remand, the administrative judge shall permit the
      parties to complete discovery prior to conducting a hearing on the merits.



      FOR THE BOARD:


      ______________________________
      Jennifer Everling
      Acting Clerk of the Board
      Washington, D.C.
