Timothy Mohler v. Department of Homeland Security ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIMOTHY MOHLER, DOCKET NUMBER
Appellant, CH-1221-18-0119-W-2
v.
DEPARTMENT OF HOMELAND DATE: July 18, 2022
SECURITY,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Richard R. Renner, Esquire, Washington, D.C., for the appellant.
Karen R. Hiyama and Patricia Boxold, Detroit, Michigan, for the agency.
Gregory Guaccio, Esquire, Washington, D.C., for amicus curiae, Office of
Special Counsel.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
Member Leavitt recused himself and
did not participate in the adjudication of this appeal.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 contra st, 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
REMAND ORDER
¶1 The appellant has filed a petition for review of the initi al decision, which
denied corrective action in this individual right of action (IRA) appeal. For the
reasons discussed below, we GRANT the appellant’s petition for review ,
MODIFY the initial decision to find that the appellant established a prima facie
case of whistleblower reprisal, MODIFY the basis for but still find that the
appellant did not engage in protected activity under 5 U.S.C. § 2302(b)(9)(C),
VACATE the administrative judge’s 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 disclosure, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant is employed as a GS-12 Field Technology Officer (FTO) with
the agency’s Customs and Border Protection (CBP), Office of Information
Technology (OIT). Mohler v. Department of Homeland Security, MSPB Docket
No. CH-1221-18-0119-W-1, Initial Appeal File (IAF), Tab 1 at 1; Mohler v.
Department of Homeland Security, MSPB Docket No. CH-1221-18-0119-W-2,
Refiled Appeal File (RAF), Tab 13 at 5, Tab 26 at 4. Prior to the events at issue
in this appeal, he was allowed to use office space at the U.S. Border Patrol
(USBP) Detroit Sector Headquarters on Selfridge Air National Guard Base
(ANGB) in Harrison Township, Michigan. 2 RAF, Tab 26 at 4.
¶3 On August 11, 2015, a Maintenance Mechanic with CBP’s Facilities
Management and Engineering, who was also stationed at the USBP’s Detroit
Sector Headquarters, reported “constant harassment” by an unspecified employee,
who was subsequently determined to be the appellant. IAF, Tab 16 at 32-34. On
2
The agency explained that, although the OIT offices were located in Walled Lake,
Michigan, the appellant was allowed to use office space of USBP, a CBP component, to
avoid a 50-mile commute from his home. IAF, Tab 16 at 9.
3
August 12, 2015, the appellant’s supervisor reported the harassment allegation to
the Joint Intake Center (JIC), the agency’s clearinghouse for allegations of
misconduct, which opened an inquiry into the matter (case number 201509037).
Id. at 12, 32, 59. On August 13, 2015, the appellant emailed the JIC and the
agency’s Computer Security Incident Response Center (CSIRC) alleging multiple
instances of misconduct by the Maintenance Mechanic, including that he left his
Government computer unattended and unlocked with his perso nal identity
verification (PIV) card still in the card reader, and attaching as evidence a number
of photos of the workstation and PIV card taken during 2014 and 2015. 3 IAF,
Tab 16 at 186-97; RAF, Tab 20 at 26, 32-40. Shortly thereafter, his email to
CSIRC was forwarded to his supervisor. RAF, Tab 20 at 31.
¶4 On August 14, 2015, the Acting Deputy Executive Director for Field
Support for OIT (DxD) participated in the Assistant Commissioner’s daily
telephonic briefing regarding information technology matters . Hearing Transcript
(HT) at 115-20 (testimony of the DxD). After the telephonic briefing, he sent an
email to management officials stating he had heard that an FTO had reported that
another employee had taken photos of his unlocked and unattended comput er with
his PIV card in the card reader and, although he later acknowledged that he must
have misheard this detail, that the employee used the FTO’s email account to send
those photos. IAF, Tab 16 at 206; HT at 118 (testimony of the DxD). On
August 17, 2015, the appellant’s supervisor reported to JIC that the appellant had
used the Maintenance Mechanic’s email account, and the JIC opened a new
inquiry into this allegation (case number 201509237). IAF, Tab 16 at 181, 184.
¶5 The agency referred both administrative inquiries into the appellant’s
conduct (case numbers 201509037 and 201509237) to a factfinder for
investigation. IAF, Tab 16 at 200-02. Pending the completion of the
investigation, the agency temporarily relocated the appellant to the Walled Lak e
3
The JIC opened an administrative inquiry (case number 201509102) into the
appellant’s allegations against the Maintenance Mechanic. RAF, Tab 20 at 23.
4
Field Support Office and suspended his administrative rights, which precluded
him from utilizing any administrative account to access any Government -owned
workstation or network. Id. at 87. On December 9, 2015, CBP Internal Affairs
completed an administrative inquiry report based on the factfinder’s
investigation, which was forwarded to the appellant’s second -level supervisor for
review on January 5, 2016. IAF, Tab 16 at 30-31, 43-50. On February 22, 2016,
he informed the appellant that the allegations against him were found to be
unsubstantiated and that the case had been closed. Id. at 29. The agency then
restored his administrative access and returned him to the USBP Detroit S ector
Headquarters Selfridge ANGB. 4 Id. at 25; RAF, 16 at 140, Tab 26 at 4.
¶6 In or around June 2017, the appellant filed a complaint with the Office of
Special Counsel (OSC) alleging that, in retaliation for his August 13, 2015
disclosure to CSIRC regarding the Maintenance Mechanic’s computer security
violation—namely, leaving his Government computer unattended while unlocked
with his PIV card still in the card reader on multiple occasions —the agency
conducted an unwarranted investigation into his conduct , moved him to another
duty station, and suspended his administrative access, which precluded him from
performing his usual duties, deprived him of overtime opportunities, and caused
him to lose out on performance award and career advancement opportunities . 5
RAF, Tab 16 at 139-40. In a letter dated October 10, 2017, OSC informed the
appellant that it had made a preliminary determination to close its inquiry into his
allegations without action. Id. at 139-44. The appellant responded by email on
October 19 and 23, 2017, restating the allegations made in his initial complaint.
4
It appears that, although the appellant was allowed to return to Selfridge ANGB in
February 2016, his duty station was subsequently moved back to Walled Lake. IAF,
Tab 1 at 1; RAF, Tab 16 at 140, 143.
5
OSC docketed this complaint as OSC File. No. MA-17-3672. RAF, Tab 16 at 139.
OSC indicated in its preliminary determination letter that the appellant filed his OSC
complaint on May 22, 2017. RAF, Tab 16 at 139. In its closure letter, it indicated that
he filed it on June 8, 2017. Id. at 145. The appellant did not provide a copy of his OSC
complaint or any subsequent correspondence with OSC.
5
Id. at 145. By letters dated November 8, 2017, OSC informed him that it was
closing its investigation into his complaint without action and that he had the
right to request corrective action from the Board. 6 Id. at 145-47.
¶7 The appellant timely filed the instant IRA appeal regarding the matters
raised in OSC File No. MA-17-3672, alleging that the agency retaliated against
him for reporting a computer security violation by suspendin g his computer
systems access, assigning him administrative duties, moving his duty station, and
conducting an unwarranted investigation into his conduct. 7 IAF, Tab 1 at 5,
Tab 10 at 4-5, Tab 11 at 4. The administrative judge found that the appellant
established jurisdiction over his IRA appeal and that he was entitled to the
hearing he requested. IAF, Tab 19 at 2. On April 20, 2018, the administrative
judge granted the appellant’s unopposed motion to dismiss the appeal without
prejudice to refiling. IAF, Tab 35, Initial Decision. After refiling, the
administrative judge held the requested hearing and issued an initial decision
denying the appellant’s request for corrective action. RAF, Tab 42, Refiled
Initial Decision (RID).
¶8 The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. The agency has responded to the petition for
review, and the appellant has filed a reply to the agency’s response. 8 PFR File,
Tabs 3, 6. In addition, OSC has filed an amicus brief. PFR File, Tab 10.
6
In its closure letter, OSC clarified that its final determination applied only to OSC File
No. MA-17-3672 and that its investigation into the appellant’s other OSC complaint
(OSC File No. MA-18-0164), which he filed on October 11, 2017, regarding incident s
from 2016, was still open. RAF, Tab 16 at 145.
7
Although the appellant indicated on his initial appeal from that he was appealing an
involuntary resignation, he subsequently clarified that he was not challenging any
alleged involuntary resignation. IAF, Tab 1 at 3, Tab 11 at 4.
8
The appellant has also filed two motions to amend the petition, one alleging an
additional error in the initial decision, PFR File, Tab 8, and one requesting an
opportunity to brief Delgado v. Department of Justice, 966 F.3d 556 (7th Cir. 2020),
which was issued after the close of the record on review, PFR File, Tab 13. We grant
the appellant’s motion to amend for an additional allegation of error, but we deny his
6
ANALYSIS
¶9 Under the Whistleblower Protection Enhancement Act (WPEA) , the Board
has jurisdiction over an IRA appeal if the appellant has exhausted his
administrative remedies before OSC and makes nonfrivolous allegations of the
following: (1) he 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 protected disclosure or 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). Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5
(2016). Once he establishes jurisdiction over his IRA appeal, he is entitled to a
hearing on the merits of his claim at which he must prove his prima facie case,
i.e., that he made a protected disclosure or engaged in protected activity that was
a contributing factor in a personnel action taken again st him, by preponderant
evidence. 9 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 out a prima facie case, the
agency is given an opportunity to demonstrate, by clear and convincing evidence,
that it would have taken the same personnel action in the abse nce of the protected
disclosure or activity. 10 5 U.S.C. § 1221(e)(1)-(2); Lu, 122 M.S.P.R. 335, ¶ 7.
¶10 Here, the administrative judge found, and we agree, that the appellant
established jurisdiction over this appeal. IAF, Tab 19 at 2; RID at 6 -7. On the
merits of his appeal, however, she found that he failed to establish a prima facie
case of whistleblower reprisal and that, in the alternative, the agency
motion to amend for additional argument on Delgado. The appellant will have an
opportunity to brief Delgado on remand to the extent that he deems it still relevant to
the issues at that stage of the proceedings.
9
Preponderant evidence is that degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely true than untrue. 5 C.F.R. § 1201.4(q).
10
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.
5 C.F.R. § 1209.4(e).
7
demonstrated by clear and convincing evidence that it would have temporarily
suspended the appellant’s computer systems access, resulting in his assignment to
administrative duties, in the absence of any whistleblowing. RID at 7-18. The
appellant challenges many of these findings on review. 11 PFR File, Tabs 1, 6, 8.
The appellant made a protected disclosure.
¶11 A protected disclosure is a disclosure that an 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); Chavez v. Department of
Veterans Affairs, 120 M.S.P.R. 285, ¶ 18 (2013). A reasonable belief exists if a
disinterested observer with knowledge of the essential facts known to, or readily
ascertainable by, the appellant could reasonably conclude that the agency’s
actions evince one of the types of wrongdoing listed in section 2302(b)(8)(A).
Chavez, 120 M.S.P.R. 285, ¶ 18. The appellant need not prove that the matter
disclosed actually established one of the listed types of wrongdoing but only that
a reasonable person in his position would have believed that it did. Id.¶12 As noted above, the exhausted disclosure at issue in this appeal involves the
appellant’s report to CSIRC on August 13, 2015, that the Maintenance Mechanic
consistently left his Government computer unattended while unlocked with his
11
In addition, the appellant argues on review the administrative judge erred in denying
his request to compel discovery—namely, his request for “all emails, text messages and
other electronically stored information” directed to or received by 21 agency officials
from July 1, 2015, onwards that included “any of the following strings of characters
(not case sensitive): violat, discrim, retaliat, repris, investigat, Tim, Mohler,
whistleblow, OSC”—on the ground that it was overbroad and burdensome when
compared to the three alleged personnel actions. PFR File, Tab 1 at 39; RAF, Tab 11
at 25, Tab 23 at 4-5. An administrative judge has broad discretion in ruling on
discovery matters, and absent an abuse of discretion the Board will not find reversible
error in such rulings. Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 16 (2016).
We find no such abuse of discretion here, especially in light of the fact that, pursuant to
the administrative judge’s order, the agency provided declarations from 20 of the
officials identified in the appellant’s document request attesting that they did not
possess any relevant or material emails that had not already been produced by the
agency in the agency file or during discovery. RAF, Tab 23 at 4-5, Tab 37.
8
PIV card inserted in the card reader. RAF, Tab 16 at 139-40, Tab 20 at 32-40.
The appellant argued that this disclosure evidenced a violation of the agency’s
computer security policy and the Computer Security Act of 1 987, as well as a
substantial and specific danger to public health and safety. IAF, Tab 1 at 16;
RAF, Tab 41 at 14-16. The administrative judge found that, although the
appellant disclosed a violation of the agency’s computer security policy, his
disclosure was not protected because he made the disclosure in furtherance of a
personal vendetta and not because he had a reasonable belief that the disclosure
evidenced a violation of law, rule, or regulation or an immediate likelihood of
harm. RID at 7-11. As the appellant points out on review, however, an
appellant’s motive in making a disclosure is not relevant to whether the
disclosure is protected. See Parikh v. Department of Veterans Affairs,
116 M.S.P.R. 197, ¶ 18 (2011) (finding that the appellant’s allegedly vindictive
motive for disclosing the misdiagnosis was immaterial to whether the disclosure
was protected); Williams v. Department of Defense, 46 M.S.P.R. 549, 553 n.5
(1991) (recognizing that personal motivation for making a disclosure is irrelevant
to whether the disclosure is protected). Accordingly, the administrative judge
improperly relied on the appellant’s motive in finding that his disclosure was not
protected, and we modify the initial decision consistent with this section to apply
the correct analysis and to find, for the reasons discussed below, that the
appellant made a protected disclosure of a violation of law, rule, or regulation.
¶13 As noted above, the appellant contends, among other things, that his
disclosure evidenced a violation of the agency’s computer security policy. RAF,
Tab 41 at 14-16; PFR File, Tab 1 at 21-24. Although the parties did not provide a
copy of the agency’s computer security policy, the record reflects that there i s
such a policy and that it requires employees to secure their equipment, ensure that
it was not left unattended, and to remove their PIV cards when they were not in
use. RAF, Tab 16 at 221; HT at 38 (testimony of the appellant’s supervisor);
91-92 (testimony of the appellant’s third-level supervisor). We find that this
9
policy constitutes a rule within the meaning of section 2302(a)(2). See Rusin v.
Department of the Treasury, 92 M.S.P.R. 298, ¶¶ 15-17 (2002) (finding that,
although the WPEA does not define “rule,” it includes established or authoritative
standards for conduct or behavior). Accordingly, we find that the appellant made
a protected disclosure of a rule as he had a reasonable belief that leaving a
workstation unattended while unsecured with the PIV card inserted violated the
agency’s computer security policy. 12
The appellant has not shown that he engaged in protected activ ity.
¶14 The appellant also argued below that he engaged in protected activity when
he reported the computer security violation to CSIRC because
section 2302(b)(9)(C) protects cooperating with or disclosing information to the
Inspector General or “any other component responsible for internal investigation
or review.” RAF, Tab 41 at 14. In the refiled initial decision, the administrative
judge found that the appellant’s report to CSIRC did not constitute protected
activity under section 2302(b)(9)(C) because CSIRC does not qualify as “any
other component responsible for internal investigation or review,” explaining that
CSIRC does not investigate the agency but only investigates internal complaints
and issues. RID at 17-18. The appellant challenges this finding on review.
PFR File, Tab 1 at 25-26. Although we agree with the administrative judge that
the appellant’s CSIRC report does not constitute protected activity under
section 2302(b)(9)(C), we modify the initial decision consistent with this section
to clarify the basis for this holding.
12
Because we find that the appellant’s disclosure evidenced a violation of a rule, we
need not determine whether he had a reasonable belief that it also evidenced a violation
of the Computer Security Act of 1987, which was repealed in 2002, or a substantial and
specific danger to public health and safety. See Kraushaar v. Department of
Agriculture, 87 M.S.P.R. 378, ¶ 11 (2000) (finding that, in light of the Board’s finding
that the appellant’s disclosure evidenced a violation of an agency regulation, it was
unnecessary to determine whether the disclosure also evidenced an abuse of authority);
see also E-Government Act of 2002, Pub. L. No. 107-347, § 305(a), 116 Stat. 2899,
2960 (2002) (repealing the Computer Security Act).
10
¶15 Prior to December 12, 2017, the whistleblower protection statutes provided
that “cooperating with or disclosing information to the Inspector General of an
agency, or the Special Counsel, in accordance with applicable prov isions of law,”
is protected. 5 U.S.C. § 2302(b)(9)(C); Edwards v. Department of Labor,
2022 MSPB 9, ¶ 29. Effective December 12, 2017, the National Defense
Authorization Act of 2018 (NDAA) amended section 2302(b)(9)(C) to provide
that, in addition to the Inspector General of an agency or the Special Counsel, a
disclosure to “any other component responsible for internal investigation or
review” is also protected. Pub. L. No. 115-91, § 1097(c)(1), 131 Stat. 1283, 1618
(2017). The Board has held that the NDAA’s amendment to
section 2302(b)(9)(C) is not retroactive. Edwards, 2022 MSPB 9, ¶¶ 30-33.
¶16 As described above, all of the events relevant to this appeal occurred prior
to the December 12, 2017 effective date of the NDAA. Accordingly, as it is not
retroactive, the amendment to section 2302(b)(9)(C) does not apply to this appeal,
and we need not determine whether the CSIRC constitutes a “component
responsible for internal investigation or review” so as to fall within the coverage
of the amended section 2302(b)(9)(C). 13 Id. Rather, to be covered under the
pre-NDAA section 2302(b)(9)(C), the appellant must show that he cooperated
with or disclosed information to the Inspector General or OSC. Id., ¶ 29. He has
not alleged, and the record does not reflect, that he cooperated with or disclosed
information to the Inspector General. Although the appellant filed a complaint
with OSC in May or June 2017, he has not alleged that the agency’s actions at
issue in this appeal resulted from that complaint, nor did he exhaust such a claim.
Accordingly, we find that the appellant has not shown that he engaged in
protected activity under section 2302(b)(9)(C) for purposes of this appeal.
13
In its amicus brief, OSC argues that CSIRC falls within the meaning of the expanded
language of section 2302(b)(9)(C), because it uses formalized investigation procedures.
PFR File, Tab 10 at 10-11. We do not reach this issue in light of our determination that
the post-NDAA language does not apply here.
11
The agency subjected the appellant to covered personnel actions.
¶17 As noted above, the appellant must also prove by preponderant evidence
that the agency subjected him to a covered personnel action. See Scoggins v.
Department of the Army, 123 M.S.P.R. 592, ¶ 21 (2016). A “personnel action” is
defined as an appointment; a promotion; an action under 5 U.S.C. chapter 75 or
other disciplinary or corrective action; a detail, transfer, or reassignment; a
reinstatement; a restoration; a reemployment; a performance evaluation under
5 U.S.C. chapter 43 or under title 38; a decision about pay, benefits, or awards
concerning education or training if the education or training reasonably may be
expected to lead to an appointment, promotion, performance evaluation, or other
action described in 5 U.S.C. § 2302(a)(2)(A); a decision to order psychiatric
testing or examination; the implementation or enforcement of any nondisclosure
policy, form, or agreement; and any other significant change in duties,
responsibilities, or working conditions. 5 U.S.C. § 2302(a)(2)(A).
¶18 In the refiled initial decision, the administrative judge found that the
appellant established that the agency subjected him to a covered signifi cant
change in his duties, responsibilities, or working conditions when it temporarily
suspended his administrative access, which resulted in a temporary change in his
duties and responsibilities, and relocated him to the Walled Lake facility. RID
at 12-13. She found that the investigation, however, did not constitute a covered
personnel action. RID at 12. On review, the appellant argues that the
administrative judge failed to consider his allegation that the agency subjected
him to a hostile work environment. PFR File, Tab 1 at 28-30.
¶19 We find no basis to disturb the administrative judge’s determination that the
appellant’s temporary relocation to a new duty station and temporary suspension
of his computer systems access, which resulted in his assignment from his FTO
duties to administrative duties, constitute significant changes in his duties,
responsibilities, or working conditions. RID at 12-13; see Skarada v. Department
of Veterans Affairs, 2022 MSPB 17, ¶ 16 (explaining that agency actions that,
12
individually or collectively, have practical and significant effects on the overall
nature and quality of an employee’s working conditions, duties, or
responsibilities will be found to constitute a personnel action covered by
subsection 2302(a)(2)(A)(xii)). In addition, we agree with the administrative
judge that the investigation does not constitute a personnel action. R ID at 12;
Johnson v. Department of Justice, 104 M.S.P.R. 624, ¶ 7 (2007). Nonetheless, it
is proper to consider evidence regarding the investigation because it is so closely
related to the personnel actions that it could have been a pretext for gathering
information to retaliate for whistleblowing. See Johnson, 104 M.S.P.R. 624, ¶ 7.
¶20 We recognize that, as the appellant argues on review, the administrative
judge did not explicitly address his claim that, considering the investigations,
relocation, suspension of computer systems access, and assignment to
administrative duties together, the agency subjected him to a hostile work
environment. RAF, Tab 41 at 20-21. However, any error in this regard did not
affect the outcome of the appeal. See Panter v. Department of the Air Force,
22 M.S.P.R. 281, 282 (1984). Although the Board stated in Savage v. Department
of the Army, 122 M.S.P.R. 612, ¶ 23 (2015), that a hostile work environment
itself may constitute a covered personnel action in an IRA appeal, the Board later
clarified that allegations of a hostile work environment may establish a personnel
action in an IRA appeal only if they meet the statutory criteria, i.e., constitute a
significant change in duties, responsibilities, or working conditions, Skarada,
2022 MSPB 17, ¶ 16 (citing 5 U.S.C. § 2302(a)(2)(A)). Here, as discussed above,
the appellant’s temporary relocation to a new duty station, suspension of his
computer systems access, and assignment to administrative duties constitute
significant changes in his duties, responsibilities, and working conditions under
subsection 2302(a)(2)(A)(xii). Therefore, it is unnecessary to determine whether
these actions also constitute a significant change in his duties, responsibilities, or
working conditions based on a hostile work environment. To the extent the
appellant argues that the investigation was part of a hostile work environment
13
personnel action, we disagree because he not shown that the investigation,
individually or considered collectively with other agency actions, had any
practical and significant effect on the overall nature and quality of his working
conditions, duties, or responsibilities. 14 See Skarada, 2022 MSPB 17, ¶ 16.
The appellant established contributing factor based on the knowledge/timing test.
¶21 As discussed above, the appellant made a protected disclosure on
August 13, 2015, when he emailed CSIRC regarding the Maintenance Mechanic’s
computer security violation, and the agency thereafter subj ected him to a covered
personnel action. To establish a prima facie case of whistleblower reprisal, he
must next prove by preponderant evidence that his disclosure was a contributing
factor in a covered personnel action. Scoggins, 123 M.S.P.R. 592, ¶ 21. The
term “contributing factor” means any disclosure that affects an agency’s decision
to threaten, propose, take, or not take a personnel action regarding the individual
making the disclosure. Id. The most common way of proving the contributing
factor element is the “knowledge/timing test.” Id. Under that test, an appellant
can prove that his disclosure was a contributing factor in a personnel action
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. Once an appellant has satisfied
the knowledge/timing test, he has demonstrated that a protected disclosure was a
contributing factor in a personnel action. Id.¶22 In the refiled initial decision, the administrative judge found that the
appellant established that the August 13, 2015 disclosure contributed to his
14
The NDAA amended 5 U.S.C. § 1214 to allow OSC to petition the Board for
corrective action on behalf of an employee due to an agency’s investigation of the
employee if it was commenced, expanded, or extended in retaliation for protected
whistleblowing activity. 5 U.S.C. § 1214(i). Regardless of any questions as to whether
this amendment applies retroactively, it does not apply to this appeal because OSC has
not petitioned the Board for such relief.
14
third-level supervisor’s decision to temporarily suspend his administrative access
based on the knowledge/timing test. RID at 14. The parties have not challenged
this finding on review, and we discern no basis to disturb it. Because the
suspension of the appellant’s access to Government systems precluded him from
performing usual duties as a FTO, we further find that he established contributing
factor in connection with his temporary assignment to administrative duties.
¶23 Next, the administrative judge found that the appellant failed to establish
that his August 13, 2015 disclosure contributed to the agency’s decision to
temporarily relocate him to the Walled Lake facility. RID at 13-14. In so
finding, she determined that the USBP Detroit Sector Headquarters Director
credibly testified that she decided to relocate the appellant on August 11 or 12,
2015, after the Maintenance Mechanic filed his most recent harassment complaint
against the appellant on August 11, 2015, but before he made his disclosure on
August 13, 2015. Id. She further found that the appellant’s second- and
third-level supervisors only made the decision regarding where to temporarily
relocate him after the Director decided that the Detroit Sector could no longer
accommodate his work location at the Selfridge ANGB. RID at 14. Accordingly,
she concluded that the appellant failed to show that his disclosure contributed to
the agency’s decision to temporarily change his work location. RID at 14. The
appellant challenges these findings on review. PFR File, Tab 6, at 20-22, Tab 8
at 4-6. For the reasons that follow, we modify the initial decis ion to find that the
appellant established contributing factor in connection with his temporary
relocation.
¶24 While disclosures made after an action has been finalized, even if it is not
yet implemented, cannot be a contributing factor in the action, an action that was
only “contemplated and in preparation” prior to a disclosure can serve as the
predicate personnel action in an IRA appeal. See Fickie v. Department of the
Army, 86 M.S.P.R. 525, ¶ 9 (2000). Here, the record reflects that the Director of
USBP Detroit Sector Headquarters determined that it was no longer tolerable for
15
the appellant to use their facilities and that he needed to be relocated to another
facility at least 1 day prior to his August 13, 2015 disclosure. IAF, Tab 16
at 33-34; RAF, Tab 20 at 32-40. However, there is no evidence that his
relocation was finalized until after he made the disclosure; rather, there is no
evidence that his relocation was finalized until August 19, 2015, when the
appellant’s second-level supervisor issued him a letter stating that he would be
temporarily reassigned to the Walled Lake Field Support Office effective
immediately. 15 IAF, Tab 16 at 87. Thus, the appellant may still establish
contributing factor in connection with his temporary relocation if he meets the
applicable criteria, notwithstanding the fact that the relocation was contemplated
and in preparation before he made his August 13, 2015 disclosure. See Fickie,
86 M.S.P.R. 525, ¶ 9.
¶25 The appellant’s email to CSIRC disclosing the computer securit y violation
was forwarded to his first-level supervisor several hours after he submitted it on
August 13, 2015. RAF, Tab 20 at 31. In addition, on August 14, 2015, the
appellant’s second-level supervisor forwarded to his third-level supervisor the
email from the DxD regarding his belief that someone had used an FTO’s account
to send emails, indicating that it pertained to the “Tim saga at sector.” IAF,
Tab 16 at 206. The appellant’s second-level supervisor signed the August 19,
2015 letter reassigning the appellant to Walled Lake and, at the hearing, his
third-levels supervisor testified that “[w]e made the decision as his management
chain to move him to [Walled] Lake.” IAF, Tab 16 at 87; HT at 94 (testimony of
the appellant’s third-level supervisor). Thus, because it is clear that the
appellant’s first-, second-, and third-level supervisors were aware of his
15
The record reflects that the appellant’s supervisor met with the appellant on
August 17, 2015, and informed him that his administrative access was suspended until
further notice. IAF, Tab 16 at 181. There is no indication, however, that he also told
the appellant that he would be moved to Walled Lake at that time. Id.; HT at 53
(testimony of the appellant’s supervisor). In any event, even if the temporary relocation
was finalized by that meeting, it occurred after the appellant made his disclosure.
16
disclosure to CSIRC by no later than August 14, 2015, before they finalized his
reassignment to Walled Lake, we find that the appellant has establ ished
contributing factor based on knowledge/timing.
¶26 In light of the foregoing, we find that the appellant established a prima facie
case of whistleblower retaliation. Specifically, he proved by preponderant
evidence that he made a protected disclosure of a violation of a law, rule, or
regulation and that this disclosure contributed to the agency’s decision to
temporarily relocate him and temporarily suspend his administrative access,
which resulted in the change to his duties and responsibilities.
We vacate the administrative judge’s alternative finding that the agency met its
burden to show that it would have taken some of the same actions in the absence
of the appellant’s disclosure and remand for a new clear and convincing analysis.
¶27 As noted above, when an appellant makes out a prima facie case of
whistleblower reprisal, the agency is given an opportunity to prove, by clear and
convincing evidence, that it would have taken the same personnel action in the
absence of the protected disclosure or activit y. 5 U.S.C. § 1221(e)(1)-(2); Lu,
122 M.S.P.R. 335, ¶ 7. Here, after finding that the appellant failed to establish a
prima facie case of whistleblower reprisal, the administrative judge determined in
the alternative that the agency proved by clear and convincing evidence that it
would have temporarily suspended the appellant’s computer systems access,
which resulted in a temporary change to his work duties, even in the absence of
his disclosure. RID at 15-17. Under the WPEA, however, the Board may not
proceed to the clear and convincing test unless it has first made a finding that the
appellant established his prima facie case. 5 U.S.C. § 1221(e)(2); Clarke v.
Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19 n.10 (2014), aff’d,
623 F. App’x 1016 (Fed. Cir. 2015). Accordingly, because the administrative
judge found that the appellant failed to establish a prima facie case of
whistleblower reprisal, it was inappropriate for her to proceed to the clear and
convincing test. See Scoggins, 123 M.S.P.R. 592, ¶ 28. Nonetheless, in light of
17
our determination on review that the appellant has established a prima facie case
of whistleblower reprisal, it is now necessary and appropriate to address whether
the agency has shown by clear and convincing evidence that it would have taken
the same actions in the absence of his protected disclosure.
¶28 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 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. 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. Lu, 122 M.S.P.R. 335, ¶ 7. Rather, the Board will
weigh the factors together to determine whether the evidence is clear and
convincing as a whole. Id. A proper analysis of the clear and convincing
evidence issue requires that all of the evidence be weighed together—both the
evidence that supports the agency’s case and the evidence that detracts from it.
Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, ¶ 37 (2013) (citing
Whitmore v. Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012)).
¶29 In the refiled initial decision, the administrative judge did not address
whether the agency met is burden to prove that it would have temporarily
relocated the appellant in the absence of his disclosure but, as noted above, found
that the agency met its burden with respect to the temporary suspension of his
computer systems access and assignment to administrative duties. RID at 15-17.
In so finding, she determined that, as to the first Carr factor, the agency’s
decision to suspend the appellant’s computer systems access pending an
investigation was supported by reasonably strong evidence. Id. As to the second
Carr factor, she found that the appellant’s third-level supervisor, who was
responsible for the decision to suspend his computer systems access, had no
18
motive to retaliate against him for his protected disclosure because it concerned a
security violation by a person with whom she had no contact or supervisory
connection. RID at 17. As to the third Carr factor, she found that the agency did
not provide any evidence of nonwhistleblowers who had their computer systems
access suspended under similar circumstances. Id. The appellant challenges
these findings on review. PFR File, Tab 1 at 31-37.
¶30 Although we discern no basis to disturb the administrative judge’s
credibility-based determination that the agency’s action was supported by
reasonably strong evidence, her analysis of the second and third Carr factors are
incomplete and inconsistent with Board and Federal Circuit ca se law. In
particular, she took an overly restrictive view of the second Carr factor by not
considering motive to retaliate on the part of the DxD, whose email influenced
the appellant’s third-level supervisor’s decision to temporarily suspend his
computer systems access pending an investigation into his alleged use of the
Maintenance Mechanic’s email account. See Phillips v. Department of
Transportation, 113 M.S.P.R. 73, ¶ 21 (2010) (explaining that, when evaluating
the second Carr factor, the Board will consider any motive to retaliate on the part
of the agency official who ordered the action, as well as any motive to retaliat e on
the part of other agency officials who influenced the decision). She further took
an overly restrictive view of the second Carr factor by not addressing whether the
appellant’s disclosure reflected on the responsible officials in their capacities as
managers and employees, which is sufficient to establish a substantial retaliatory
motive even when the disclosure does not directly implicate or harm them . See
Chavez, 120 M.S.P.R. 285, ¶ 33 (citing Whitmore, 680 F.3d at 1370-71).
Moreover, the administrative judge appeared to find, without analysis, that the
third Carr factor was neutral because there was no comparator evidence. RID
at 17. However, the Federal Circuit has emphasized that it is the agency’s burden
to produce relevant comparator evidence and that its failure to do so “may be at
the agency’s peril,” and may imperil the agency’s overall case. See Whitmore,
19
680 F.3d at 1374-75. Our reviewing court has also stated that, when the agency
fails to introduce relevant comparator evidence, the third Carr factor cannot
weigh in favor of the agency. Smith v. General Services Administration, 930 F.3d
1359, 1367 (Fed. Cir. 2019); Siler v. Environmental Protection Agency, 908 F.3d
1291, 1299 (Fed. Cir. 2018). Accordingly, we vacate the administrative judge’s
clear and convincing analysis.
¶31 Although the record is complete, we find that the administrative judge is in
the best position to conduct a new clear and convincing analysis because she
heard the live testimony and made credibility determination s. See Shibuya,
119 M.S.P.R. 537, ¶¶ 37‑38. Therefore, we find it appropriate to remand this
appeal for a new clear and convincing analysis. See id. On remand, the
administrative judge must determine whether the agency proved the following by
clear and convincing evidence: (1) the agency would have temporarily relocated
the appellant to the Walled Lake facility in the absence of his protected
disclosure; and (2) the agency would have temporarily suspended the appellant’s
computer systems access (resulting in his assignment to administrative duties) in
the absence of his protected disclosure. In conducting her clear and convincing
evidence analysis, the administrative judge must comply with the requirements
set forth above and in the Federal Circuit’s decision in Whitmore, 680 F.3d
at 1368-74, fully evaluate all of the pertinent evidence, and make credibility
determinations in order to resolve any contradictory testimony. See Shibuya,
119 M.S.P.R. 537, ¶ 37. In addition, the administrative judge shall specifically
determine the weight to afford to each of the three Carr factors.
20
ORDER
¶32 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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.