Lauranell Burch v. Department of Health and Human Services ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAURANELL BURCH, DOCKET NUMBER
Appellant, DC-1221-14-0894-W-1
v.
DEPARTMENT OF HEALTH AND DATE: November 16, 2015
HUMAN SERVICES,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Vanessa Katherine Lucas, Esquire, Raleigh, North Carolina, for
the appellant.
Keith A. Eichenholz, Esquire, and Laura VanderLaan, Esquire, Atlanta,
Georgia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review,
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
VACATE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Order.
BACKGROUND
¶2 The appellant was employed as a Staff Scientist with the agency’s National
Institute of Environmental Health Sciences (NIEHS) in a time-limited, renewable
position under 42 U.S.C. § 209(g). Initial Appeal File (IAF), Tab 1 at 10. By
letter dated May 26, 2013, the agency informed her that her appointment
would not be extended beyond June 30, 2014, due to budget constraints. Id. She
filed the instant appeal alleging, in part, that her appointment was not renewed in
retaliation for her prior protected disclosures. Id. at 5, 7.
¶3 Regarding her protected disclosures, the appellant alleged the following:
(1) since 2007 she made repeated disclosures to management concerning wasteful
contractor charges, mismanaged research studies, and underutilized facilities;
(2) on April 26, 2013, 2 during a meeting with the NIEHS Scientific Director, she
disclosed underutilization of the microarray core facility laboratories and inflated
contractor costs related to mouse genotyping; (3) on May 5, 2013, she disclosed
inflated contractor charges, Environmental Polymorphism Registry (EPR) study
waste, and personnel mismanagement to the Office of Special Counsel (OSC); 3
and (4) in a May 21, 2013 email to the NIEHS Scientific Director, she disclosed
the underutilization and mismanagement of microarray core staff and molecular
genetics staff, and other waste and mismanagement issues. IAF, Tab 1 at 13-14,
Tab 12 at 18-22, 27. The appellant further alleged that, in retaliation for these
disclosures, the agency took a number of personnel actions against her,
2
The appellant asserts that the meeting occurred on or about April 25, 2013 or April 26,
2013. IAF, Tab 12 at 21.
3
The appellant references her OSC disclosure as being filed on May 3, 2013, however,
according to OSC’s records it was filed on or about May 5, 2013. IAF, Tab 1 at 22,
Tab 12 at 8, 22.
3
culminating in the nonrenewal of her appointment in 2013. 4 IAF, Tab 1 at 10,
13-14, 16.
¶4 Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 1 at 3, Tab 14, Initial Decision (ID). 5 The administrative judge found that
the appellant failed to make nonfrivolous allegations of protected disclosures. ID
at 6-9. Regarding the appellant’s repeated disclosures since 2007 of wasteful
contractor charges, mismanaged research studies, and underutilized facilities, the
administrative judge found that she failed to identify specifically what she
disclosed, to whom she disclosed it, and when; thus, she failed to satisfy the
requirement that disclosures be detailed and specific. ID at 7-8. Regarding the
appellant’s April 26, 2013 disclosure of inflated contractor costs and the
underutilization of the microarray core facility laboratories, the administrative
judge found that such a claim, even if true, was not a disclosure of gross
mismanagement or a gross waste of funds. ID at 8-9. The administrative judge
also found that an agency’s decision not to renew an appointment under 42 U.S.C.
§ 209(g) is not an action otherwise appealable to the Board. ID at 2-3.
¶5 The appellant has filed a petition for review in which she asserts that the
administrative judge incorrectly identified her disclosures, improperly failed to
address two of her disclosures, and erred in finding that her disclosures were not
protected. Petition for Review (PFR) File, Tab 1 at 12-13, 16-19. The appellant
also asserts that she was denied the opportunity to participate in discovery. Id.4
The appellant asserts that, in 2012, the agency eliminated her supervisory duties,
micromanaged her, and forced her to change offices. IAF, Tab 12 at 28-29.
5
The initial decision dismissed the appeal for lack of jurisdiction without reaching the
merits; however, the administrative judge improperly stated that “the appellant’s
request for corrective action is DENIED.” ID at 2; Hagen v. Department of
Transportation, 103 M.S.P.R. 595, ¶ 10 (2006) (holding that it is improper to deny a
request for corrective action on the merits without first determining whether the Board
has jurisdiction over the appeal).
4
at 4 n.1. The agency has filed a response in opposition to the appellant’s petition.
PFR File, Tab 3. The appellant has filed a reply. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 The Board has jurisdiction over an IRA appeal if the appellant exhausts her
administrative remedies before OSC and makes nonfrivolous allegations that:
(1) she made a disclosure described under 5 U.S.C. § 2302(b)(8), or engaged in
protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D);
and (2) the disclosure or protected activity was a contributing factor in the
agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C.
§ 2302(a). 5 U.S.C. §§ 1214(a)(3), 1221(e)(1); Yunus v. Department of Veterans
Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).
The appellant exhausted her administrative remedies before OSC.
¶7 The administrative judge did not make explicit findings on exhaustion, but
rather identified two disclosures and two personnel actions referenced in OSC’s
close-out letter. ID at 5-6. To satisfy the exhaustion requirement, an appellant
must inform OSC of the precise ground of her whistleblowing claim, giving OSC
a sufficient basis to pursue an investigation that might lead to corrective action.
Ward v. Merit Systems Protection Board, 981 F.2d 521, 526 (Fed. Cir. 1992). An
appellant must prove exhaustion by preponderant evidence. See Mason v.
Department of Homeland Security, 116 M.S.P.R. 135, ¶¶ 9-10 (2011) (finding
that an administrative judge failed to provide proper jurisdictional notice
regarding the appellant’s burden to prove exhaustion of the alleged disclosures
and personnel actions). Exhaustion with OSC is a jurisdictional prerequisite to
Board consideration of the substance of the appellant’s allegedly protected
disclosures, Ward, 981 F.2d at 526, and the scope of an IRA appeal is limited to
those disclosures raised before OSC, Sazinski v. Department of Housing & Urban
Development, 73 M.S.P.R. 682, 685 (1997).
5
¶8 The record reflects that the appellant filed a complaint with OSC and
subsequently provided OSC with additional documentation and emails concerning
her claims. IAF, Tab 1 at 11-17; see IAF, Tab 12 at 19, 24-53. Before OSC she
alleged first that she had disclosed waste related to contractor charges,
mismanaged research studies, and underutilized facilities to NIEHS leadership
since 2007. IAF, Tab 1 at 13. She also alleged that she was subsequently forced
to change offices, her supervisory duties were eliminated, and she received an
overly controlling job plan in 2012. IAF, Tab 12 at 28-30.
¶9 Second, she alleged that during a meeting on April 26, 2013, she disclosed
inflated contractor charges related to mouse genotyping and the underutilization
of the microarray core facility to the NIEHS Scientific Director. IAF, Tab 1
at 13. Third, she alleged that she disclosed waste and mismanagement, including
underutilization and mismanagement of the microarray core staff and molecular
genetics staff via a May 21, 2013 email to the NIEHS Scientific Director and
others. Id. at 14. Finally, she alleged that, in a May 5, 2013 OSC disclosure
complaint, she disclosed inflated contractor charges, EPR study waste, and
personnel mismanagement issues resulting in gross waste. Id. The appellant
contended that the agency threatened her job and then declined to renew her
appointment in retaliation for her April and May 2013 disclosures. Id. at 13-14;
IAF, Tab 12 at 21, 31-32. The record includes a copy of an August 30, 2013
letter from OSC summarizing the appellant’s allegations consistent with the
above as well as a May 12, 2014 close-out letter from OSC. IAF, Tab 1 at 21-22,
29. Accordingly, we find that the appellant exhausted her administrative
remedies as to all four of her alleged disclosures, and as to the alleged personnel
actions of changing offices, her job plan, the elimination of her supervisory
6
duties, the threat to terminate or not renew her appointment, and the nonrenewal
of her appointment. 6
The appellant nonfrivolously alleged that she made two protected disclosures.
¶10 A nonfrivolous allegation of a protected disclosure is an allegation of facts
that, if proven, would show that the matter disclosed was one that a reasonable
person in the appellant’s position would believe evidenced one of the situations
specified in 5 U.S.C. § 2302(b)(8). See Mudd v. Department of Veterans Affairs,
120 M.S.P.R. 365, ¶ 8 (2013). At the jurisdictional stage, an appellant is not
required to prove that her disclosure is protected under 5 U.S.C. § 2302(b)(8). Id.Once an appellant establishes jurisdiction over her IRA appeal, she is entitled to a
hearing on the merits of her claim, which she must prove by preponderant
evidence. Benton-Flores v. Department of Defense, 121 M.S.P.R. 428, ¶¶ 4-5
(2014).
¶11 The appellant alleges that her disclosures revealed gross mismanagement
and gross waste of funds. 7 IAF, Tab 1 at 13-14. An employee discloses a gross
6
An agency’s decision not to renew a title 42 appointment is a personnel action under
5 U.S.C. § 2302(a). See Belyakov v. Department of Health & Human Services,
120 M.S.P.R. 326, ¶ 4 (2013). Further, the threat to take a personnel action, such as a
termination or the nonrenewal of an appointment, is a personnel action. 5 U.S.C.
§ 2302(a)(2)(A)(iii), (v), (vi), (b)(8). In light of our findings below, we find it
unnecessary to reach the issue of whether the appellant’s office change, job plan, or the
elimination of her supervisory duties were personnel actions because the appellant
failed to nonfrivolously allege that the disclosures that preceeded these personnel
actions were protected. IAF, Tab 12 at 28-29; see Hooker v. Department of Veterans
Affairs, 120 M.S.P.R. 629, ¶¶ 3, 6 (2014) (agreeing with an administrative judge’s
finding that an appellant could not prove that his disclosure was a contributing factor in
his proposed removal because the proposed removal was issued prior to the disclosure).
7
The appellant also alleged that each of her disclosures evidenced an abuse of
authority. IAF, Tab 1 at 13-14. Such an abuse occurs when there is an arbitrary or
capricious exercise of power by a Federal official or employee that adversely affects
the rights of any person or results in personal gain or advantage to himself or preferred
other persons. Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 15 (2014). There
is no evidence in the record that the appellant disclosed any actions that resulted in
personal gain. Although she alleged that the Scientific Director “prioritized the
purchase of new carpeting for the floor of the module where his office is located, and
also recovered perfectly functional cubicles in cloth of a different color,” IAF, Tab 12
7
waste of funds when she alleges that a more than debatable expenditure is
significantly out of proportion to the benefit reasonably expected to accrue to the
Government. Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶ 10
n.3 (2015).
¶12 Gross mismanagement is more than de minimis wrongdoing or negligence;
it means a management action or inaction that creates a substantial risk of
significant adverse impact on the agency’s ability to accomplish its mission.
Swanson v. General Services Administration, 110 M.S.P.R. 278, ¶ 11 (2008); see
S. Rep. No. 112-155, at 8 (2012), reprinted in 2012 U.S.C.C.A.N. 589, 596
(citing Swanson with approval in a U.S. Senate report on the Whistleblower
Enhancement Protection Act of 2012). The statutory protection for
whistleblowers is not a weapon in arguments over policy or a shield for
insubordinate conduct; policy disagreements with agency decisions or actions
are not protected unless they separately constitute a protected disclosure of one of
the categories of wrongdoing listed in section 2302(b)(8)(A). 5 U.S.C.
§ 2302(a)(2)(D); Webb, 122 M.S.P.R. 248, ¶ 8.
The administrative judge properly found that the appellant failed to
nonfrivolously allege that her repeated disclosures since 2007
were protected.
¶13 The appellant’s first alleged disclosure concerns her repeated disclosures to
management of mismanagement and waste. IAF, Tab 12 at 19-20. We find that
the appellant has not identified the specific disclosures she made, to whom, and
when, despite multiple opportunities to do so. PFR File, Tab 1 at 12 (containing
the appellant’s description of her “repeated disclosures since 2007” as
“[g]enerally disclosing information to different NIEHS leadership”); IAF, Tab 12
at 18 (naming some individuals to whom disclosures were made, but again failing
at 26, she did not allege additional facts from which a reasonable person might
conclude that the expenditure was arbitrary and capricious, or that the Scientific
Director or other preferred individuals personally benefitted from the expenditures.
8
to identify what information was specifically conveyed to whom or when it
was conveyed).
¶14 On her OSC complaint form, the appellant indicated that sometime in the
past she disclosed “to management” that a contractor was charging over $100 or
even $1,500 per mouse tail genotype. IAF, Tab 1 at 13; PFR File, Tab 1 at 17.
She expressed her opinion that $20 would have been an expensive contract price
and that the work could have been performed in-house for less than $1 per
genotype. IAF, Tab 1 at 13. She also asserted that she became aware that
internal facilities were underutilized and work for which internal staff was
available was shifted to expensive contractors, but failed to state whether she
disclosed such information to anyone. Id. In her declaration submitted below,
she similarly contended that she “made repeated disclosures since 2007 reporting
waste, fraud and abuse related to inflated contractor cost, [EPR] study
mismanagement and waste, and wasteful management practices of core facilities
resulting in gross waste” to various management officials. IAF, Tab 12 at 18.
She submitted a document that she described as containing a history and summary
of her disclosures. Id. at 19, 24-34. In this summary, the appellant provided
additional specifics. Id. at 24-28. For example, she asserted that she reported to
her former supervisor that the failure to replace aging equipment led to the loss of
study samples. Id. at 26. However, she provides no context or timeframe from
which we can conclude when the disclosure was made or that it should be
considered protected.
¶15 The appellant has failed to provide sufficient specifics regarding her alleged
repeated disclosures since 2007. Rather, in her summary of disclosures, she
asserts broadly that she “expressed concerns in particular about supervisory
issues regarding the EPR, and discussed EPR delays and problems,” “reported
concerns regarding mismanagement of the EPR study to leadership,” and “related
concerns about spending priorities.” Id. We agree with the administrative judge
that the appellant’s conclusory and vague allegations of disclosures of
9
wrongdoing are insufficient to constitute nonfrivolous allegations of protected
disclosures. ID at 7-8; see Barela v. Merit Systems Protection Board,
388 F. App’x 965, 967 (Fed. Cir. 2010) (finding an appellant’s statements
concerning her alleged disclosures inadequate to establish jurisdiction where they
were “vague, conclusory, and unsupported by any evidentiary allegations”) 8;
Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 14 (2014) (stating that a
disclosure must be specific and detailed, not a vague allegation of wrongdoing).
The administrative judge erred in finding that the appellant failed to
nonfrivolously allege that her April 26, 2013 disclosure was protected.
¶16 As to the appellant’s second disclosure, she alleged that during a meeting
on April 26, 2013, she disclosed to the NIEHS Scientific Director that the
microarray core facility was being mismanaged in that staff were underutilized
and working inefficiently and personnel “were not working much, if at all, in the
laboratories.” 9 IAF, Tab 1 at 13, 26, Tab 12 at 21. We agree with the
administrative judge that, even if true, this alleged conduct does not constitute
gross mismanagement or a gross waste of funds. ID at 8-9. There is no evidence
of what other duties staff performed while not working in the laboratories, or
otherwise to suggest that other duties were not a better use of the employee’s time
and the agency’s resources. In any event, the appellant has not alleged that a
disinterested person in her position could reasonably believe there was a risk of
significant adverse impact on the agency’s mission or an expenditure significantly
out of proportion to the reasonably anticipated benefit. See Webb, 122 M.S.P.R.
248, ¶ 10 n.3; Swanson, 110 M.S.P.R. 278, ¶ 11.
8
The Board has held that it may rely on unpublished decisions of the U.S. Court of
Appeals for the Federal Circuit if it finds the reasoning persuasive. Graves v.
Department of Veterans Affairs, 114 M.S.P.R. 245, ¶ 11 n.2 (2010).
9
She claims that one individual told her that he was working at approximately one-sixth
of his prior speed, and that the budget officer advised her that productivity “had been
down for years without any reduction in budget, staffing or management.” PFR File,
Tab 1 at 19; IAF, Tab 12 at 30.
10
¶17 However, the appellant also asserted that, during this same meeting, she
disclosed that the same contractor at issue in her first disclosure was
overcharging for mouse genotyping. IAF, Tab 1 at 13. She contended that the
contractor was charging $1,500 per mouse when the work could have been
performed in-house for less than $1 per mouse and that one investigator
contracted out $1 million in a year genotyping a single mouse strain. PFR File,
Tab 1 at 5; IAF, Tab 12 at 14, 27, 41. The appellant’s allegations regarding
overcharging by the contractor are supported by evidence in the record that the
agency found her concerns to be “fully justified” and after looking into the
allegations, it terminated the use of the contract. IAF, Tab 13 at 19.
¶18 Taken together, we construe the appellant’s claims as an allegation that she
disclosed that employees were being underutilized and, instead, work which could
have been performed in-house was being contracted out at a high cost. We find
that a disinterested person in the appellant’s position could reasonably believe
that that this constituted a gross waste of funds. See, e.g., Parikh v. Department
of Veterans Affairs, 110 M.S.P.R. 295, ¶ 18 (2008) (finding the appellant made a
nonfrivolous allegation that his disclosure that the agency continued to pay for a
full staff, despite the fact that the facility had been scheduled to close and had
substantially decreased its workload, was a nonfrivolous allegation of a disclosure
of a gross waste of funds). Accordingly, we find that the appellant nonfrivolously
alleged that her disclosure of this contract expenditure was protected.
The administrative judge failed to address two of the appellant’s
disclosures, one of which she nonfrivolously alleged is protected.
¶19 We agree with the appellant that the administrative judge erred in failing to
address two of her claimed disclosures, instead considering only those disclosures
referenced in OSC’s close-out letter. PFR File, Tab 1 at 12-13; ID at 6; IAF,
Tab 12 at 56. The administrative judge improperly failed to consider the
appellant’s May 5, 2013 disclosure to OSC or her May 21, 2013 internal
disclosure, both of which she identified in her OSC complaint attached to her
11
initial appeal as well as articulated in her brief on jurisdiction. IAF, Tab 1
at 13-14, Tab 12 at 5-9. Thus, we address the appellant’s additional disclosures
on review, finding that she made a nonfrivolous allegation that one of these
disclosures was protected.
¶20 The appellant alleged that, on May 5, 2013, she disclosed to OSC the
agency’s “inflated contractor charges, EPR study waste and personnel
mismanagement issues resulting in gross waste.” IAF, Tab 1 at 14, Tab 12 at 22.
While a disclosure to OSC can be protected, see 5 U.S.C. § 2302(b)(8)(B), the
appellant has not submitted a copy of her disclosure statement and it is not clear
from the record what specifically she disclosed. We have previously determined
that the appellant’s broad contentions that she disclosed inflated contractor
charges, EPR study waste, and personnel mismanagement issues resulting in gross
waste to be too vague and conclusory to constitute nonfrivolous allegations of
protected disclosures. See supra ¶¶ 13-15.
¶21 The appellant also specifies that she informed OSC that the agency replaced
an experienced investigator managing the EPR study with other inexperienced or
less experienced individuals. IAF, Tab 12 at 14, 24-25; PFR File, Tab 1 at 6.
She states that this change ultimately resulted in genotyping delays, and required
additional “months of effort” by agency employees at “significant salary
expenditure.” IAF, Tab 12 at 14, 25; PFR File, Tab 1 at 7. We find that the
appellant has failed to nonfrivolously allege sufficient facts to establish that a
reasonable person could conclude that this management decision created a
substantial risk of significant adverse impact upon the agency’s ability to
accomplish its mission or constituted an expenditure significantly out of
proportion to the benefit reasonably expected to accrue.
¶22 Finally, the administrative judge failed to address the appellant’s fourth
disclosure, an email to NIEHS leadership on May 21, 2013, which the appellant
characterizes as a disclosure regarding “underutilization and mismanagement of
microarray core staff and molecular genetics staff, and other waste and
12
mismanagement issues.” IAF, Tab 1 at 14. In her email, which is a part of the
record below, the appellant asserted that certain managers lacked the technical
knowledge and ability to manage the facility and to advise individuals in their
work, expressed her disagreement with management’s decisions, and urged that
she be returned to supervising the molecular genetics staff because of her superior
knowledge of the work being performed. IAF, Tab 12 at 32-34. We find that the
appellant has failed to nonfrivolously allege sufficient facts to establish that a
reasonable person could conclude that such matters constituted a disclosure of a
gross waste of funds or gross mismanagement. Rather, the appellant was voicing
her disagreement with management’s policy decisions. See 5 U.S.C.
§ 2302(a)(2)(D); Webb, 122 M.S.P.R. 248, ¶ 8.
¶23 In her email, the appellant also disagreed with a recent decision to renew an
equipment servicing contract for $35,000. IAF, Tab 12 at 33. She identified an
agency employee who had successfully performed the servicing maintenance on
the equipment for years and alleged that this individual could have performed the
majority of the contract work in-house for no cost. Id. According to the
appellant, any work that could not have been performed in-house could have been
contracted out “for about 3k in cost.” Id. We find that the appellant has made a
nonfrivolous allegation that a reasonable person in her position would believe that
it was a gross waste of funds for the agency to renew the contract rather than
perform the work itself at a fraction of the cost. See Smith v. Department of the
Army, 80 M.S.P.R. 311, ¶¶ 8, 10 (1998) (finding that the appellant made a
nonfrivolous allegation that he had disclosed a gross waste of funds by disclosing
that the agency spent $15,000 on a fuel management system that would provide
no benefit to the Government because the new system provided the same
information as the system it replaced); Van Ee v. Environmental Protection
Agency, 64 M.S.P.R. 693, 698 (1994) (finding the appellant’s disclosure
regarding an expenditure of $400,000 for an allegedly unnecessary research study
was a nonfrivolous allegation of gross waste of funds).
13
The appellant nonfrivolously alleged that her disclosures were a contributing
factor in the agency’s decision not to renew her contract.
¶24 The final jurisdictional inquiry is whether the appellant made a
nonfrivolous allegation that her April 26, 2013 and May 21, 2013 disclosures
were a contributing factor in the agency’s alleged threat to her employment and
decision not to renew her appointment. The record reflects that the NIEHS
Scientific Director, the official who allegedly threatened the appellant’s job and
made the decision not to renew her appointment, IAF, Tab 1 at 10, knew of the
two disclosures because they were made directly to him, IAF, Tab 1 at 13, Tab 12
at 7, 32-33. Further, the appellant alleges that, during a meeting on May 23,
2013, her supervisor informed her that her appointment would not be extended
beyond June 30, 2014, and read her a “termination letter” written by the NIEHS
Scientific Director. IAF, Tab 12 at 51.
¶25 To make a nonfrivolous allegation that a disclosure was a contributing
factor in the agency’s decision to take a personnel action, an appellant need only
raise a nonfrivolous allegation that the fact of, or content of, the protected
disclosure was one factor that tended to affect a personnel action in any way.
Mason, 116 M.S.P.R. 135, ¶ 26. 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 taking the personnel
action knew of the disclosure, and that the personnel action occurred within a
period of time such that a reasonable person could conclude that the disclosure
was a contributing factor in the personnel action. 5 U.S.C. § 1221(e)(1); Mason,
116 M.S.P.R. 135, ¶ 26. Once the appellant has made a nonfrivolous allegation
that the knowledge-timing test has been met, she has met her jurisdictional
burden concerning the contributing factor criterion. Mason, 116 M.S.P.R. 135,
¶ 26.
14
¶26 The Board has held that a personnel action that occurred within 1 year of a
protected disclosure satisfies the “timing” component of the knowledge-timing
test. See Mudd, 120 M.S.P.R. 365, ¶ 10. Thus, we find that the appellant made a
nonfrivolous allegation that she made protected disclosures that contributed to a
threat to her employment and the nonrenewal of her appointment. Accordingly,
she is entitled to a hearing on the merits of her claim. See Rusin v. Department of
the Treasury, 92 M.S.P.R. 298, ¶ 20 (2002) (explaining that an appellant is
entitled to a hearing on the merits if she makes the required nonfrivolous
allegations of the elements of an IRA appeal).
The administrative judge did not abuse his discretion concerning discovery.
¶27 Lastly, we find unavailing the appellant’s argument that she was denied the
opportunity to participate in discovery below. PFR File, Tab 1 at 4. The record
reflects that the administrative judge made no rulings on discovery and the
appellant did not file a motion to compel. See Szejner v. Office of Personnel
Management, 99 M.S.P.R. 275, ¶ 5 (2005) (determining that an appellant’s failure
to file a motion to compel below precluded him from raising a discovery dispute
for the first time on petition for review), aff’d, 167 F. App’x 217 (2006).
ORDER
¶28 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.