Filed: Jun. 05, 2014
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2014 MSPB 41 Docket No. SF-0752-13-0018-I-1 Jessica Shannon, Appellant, v. Department of Veterans Affairs, Agency. June 5, 2014 Michael W. Franell, Medford, Oregon, for the appellant. Leigh E. Schwarz, Esquire, Portland, Oregon, for the agency. BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2014 MSPB 41 Docket No. SF-0752-13-0018-I-1 Jessica Shannon, Appellant, v. Department of Veterans Affairs, Agency. June 5, 2014 Michael W. Franell, Medford, Oregon, for the appellant. Leigh E. Schwarz, Esquire, Portland, Oregon, for the agency. BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member OPINION AND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed h..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2014 MSPB 41
Docket No. SF-0752-13-0018-I-1
Jessica Shannon,
Appellant,
v.
Department of Veterans Affairs,
Agency.
June 5, 2014
Michael W. Franell, Medford, Oregon, for the appellant.
Leigh E. Schwarz, Esquire, Portland, Oregon, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed her removal. For the reasons set forth below, we GRANT the
appellant’s petition for review, AFFIRM those parts of the initial decision finding
that the agency proved its charge by preponderant evidence, there was a nexus
between the charge and the efficiency of the service, and the appellant failed to
prove her affirmative defense of harmful procedural error. We VACATE the
portion of the initial decision finding that the appellant failed to prove her
2
whistleblower reprisal claim and REMAND the appeal for further adjudication
consistent with this Opinion and Order.
BACKGROUND
¶2 Effective September 21, 2012, the agency removed the appellant from her
position as a Medical Administrative Assistant 1 with the Veterans
Administration’s Southern Oregon Rehabilitation Center and Clinics (SORCC)
based on the following two charges: (1) inappropriate relationship with a
veteran; and (2) failure to follow policy. Initial Appeal File (IAF), Tab 4
at 15-18.
¶3 In support of the first charge, the agency alleged that, between
November 2011 and April 2012, the appellant had a personal relationship with a
veteran who resided at the SORCC, evidenced in Facebook messages from
February 20, 2012, to April 3, 2012, and personal contact, including a January 6,
2012 encounter with the veteran in the Administrative Officer of the Day (AOD)
work area. IAF, Tab 4 at 36. The agency stated that the appellant’s conduct
violated SORCC’s Medical Center Memorandum (MCM) 05-002,
Patient/Employee Relationships, 2 which requires employees to avoid relationships
1
This position is also called Administrative Officer of the Day (AOD). Initial Appeal
File (IAF), Tab 4 at 16 of 148.
2
Paragraph 2a of MCM 05-002 provides, in pertinent part:
Employees shall not engage in any patient/employee relationship outside
the boundaries of either assigned duties or professional standards which
may result in or give the appearance of: (1) A personal, emotional,
romantic, sexual and/or financial relationship that could influence or
affect professional patient care goals or outcomes. Some examples of
unacceptable/inappropriate behavior that could occur in social
relationships include, but are not limited to, a staff member taking a
patient to a non-sanctioned social event, or transporting patients in
employee [sic] personal vehicle, inviting a patient to a staff member’s
home, the exchange of personal gifts, letters, cards, phone calls and other
3
that are not conducive to effective veteran care. Id. In support of the second
charge, the agency alleged that the appellant failed to follow MCM 05-002 by
entering into a personal relationship with a veteran resident and reiterated the
specification under the first charge. Id. at 37.
¶4 The appellant filed a Board appeal of her removal and requested a hearing.
IAF, Tab 1 at 3. She raised affirmative defenses of harmful procedural error and
whistleblower reprisal. Id. at 5-16. After holding a hearing, the administrative
judge issued an initial decision that affirmed the appellant’s removal. IAF,
Tab 17, Initial Decision (ID). The administrative judge merged the two charges
based on her finding that proof of the first charge of inappropriate relationship
with a veteran, which the agency alleged resulted in a violation of MCM 05-002,
necessarily proved the second charge that the appellant failed to follow MCM
05-002. ID at 9. The administrative judge found that the agency proved the
charge by preponderant evidence, ID at 10-14; that there is a nexus between the
sustained charge and both the appellant’s ability to accomplish her duties as well
as the legitimate governmental interest of SORCC’s ability to treat veterans, ID
at 14-15; and that the penalty of removal is reasonable, ID at 23-25. The
administrative judge also found that the appellant failed to prove her affirmative
defenses. ID at 15-23.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response in opposition to the petition for
review. PFR File, Tab 3.
items representing expressions of affection and/or sexual interest, sensual
and sexual touch is never appropriate.
IAF, Tab 4 at 72.
4
ANALYSIS
The administrative judge correctly found that the agency proved the charge by
preponderant evidence.
¶6 In finding that the agency proved the charge, the administrative judge fully
set forth the facts underlying the charge, considered the testimony of witnesses,
including the appellant, and made reasoned credibility determinations consistent
with the factors for resolving credibility issues set forth in Hillen v. Department
of the Army, 35 M.S.P.R. 453 , 458 (1987). ID at 2-14. The administrative judge
found that the appellant was not a credible witness and, therefore, did not credit
her testimony. ID at 10. More specifically, the administrative judge found that
the appellant lacked candor, provided improbable explanations of her conduct,
and gave inconsistent statements from the agency’s investigation into her conduct
through the hearing. ID at 10. The administrative judge further found that the
evidence clearly contradicts the appellant’s version of events and that her denial
of an inappropriate relationship with a veteran resident and her claim that she was
unaware that her relationship with the veteran was against agency policy were
inherently improbable. ID at 10.
¶7 As to the allegations concerning the appellant’s Facebook conversations
with the veteran, the administrative judge found that the Facebook messages show
that the appellant had an inappropriate relationship with the veteran. ID at 10. In
support of this finding, the administrative judge noted that, in her Facebook
conversations with the veteran, the appellant complained to him about work and
the veteran gave her advice and support on how to care for her father and handle
him emotionally when he was ill. ID at 10. In addition, the administrative judge
noted that a few days after a Facebook conversation in which the veteran told the
appellant that he had missed her the past 3 days and that he was going to give her
a massage with lotion and asked if she would give him a massage that night, the
appellant engaged in Facebook conversations with the veteran from her home in
which she told him that she was wearing socks, a bra, and underwear. ID at 11.
5
¶8 The administrative judge also noted that, while the appellant tried to
characterize her relationship with the veteran as trivial during the proceedings in
this appeal, she admitted in a Facebook conversation with the veteran that they
were spending more than nominal time together. ID at 12. The administrative
judge further found that the appellant knew the Facebook exchanges were
inappropriate because she stated to the veteran that she hoped no one could read
their Facebook messages. ID at 13 (citing IAF, Tab 14 at 101 of 135). The
administrative judge determined that the Facebook conversations violated MCM
05-002 because, at a minimum, the exchanges gave the appearance of a personal
and emotional relationship between the appellant and the veteran, which is
expressly prohibited. ID at 13-14.
¶9 Turning to the allegations of personal contacts between the appellant and
the veteran, the administrative judge credited AOD J.B.’s testimony regarding the
appellant’s January 6, 2012 encounter with the veteran over that of the appellant,
whom the administrative judge found “less than truthful.” ID at 2, 13. The
administrative judge noted that, while the appellant made it appear as though the
encounter was a quick professional exchange in which she told the veteran she
was unable to assist him and that it took place outside the AOD office, J.B.
provided detailed, direct, and forthright testimony disputing the appellant’s
characterization. ID at 13 (citing IAF, Tab 4 at 140). The administrative judge
found that J.B.’s testimony showed that she surprised the appellant and the
veteran as they were exiting the AOD office together and that there was no
professional reason for the veteran to be in the AOD office. ID at 13. The
administrative judge found that the January 6 meeting and other meetings alluded
to or planned in the Facebook conversations between the appellant and the
veteran were inappropriate and violated MCM 05-002 because, at the very least,
the meetings gave the appearance of a personal relationship. ID at 13. Based on
her findings that the appellant’s Facebook conversations and personal contacts
with the veteran were inappropriate and violated MCM 05-002, the administrative
6
judge found that the agency proved the charge by preponderant evidence. ID
at 14.
¶10 On review the appellant argues that the administrative judge erred in
finding that she violated MCM 05-002. PFR File, Tab 1 at 5 of 12. Her argument
concerning the charge essentially consists of a recitation of her hearing testimony
that she did not engage in the inappropriate conduct listed in MCM 05-002. Id.
at 7. In particular, the appellant states that, during the hearing, she testified that
she never accepted any gifts from the veteran, the veteran had never been to her
house, and she never provided the veteran a ride anywhere. Id. She further
asserts that, although the veteran “made overtures of a sensual nature,” she did
not respond to them, and the agency “cannot prove that she was ever guilty of
expressing sexual interest, affection or sensual or sexual touch to the
veteran.” Id.
¶11 This argument is unavailing. As the administrative judge stated in the
initial decision, whether the appellant was dating the veteran or having a sexual
relationship with the veteran is “beside the point.” ID at 10. Paragraph 2.a(1) of
MCM 05-002 states that the types of inappropriate behavior that could occur in
social relationships are not limited to the specific examples of inappropriate
conduct described therein. See IAF, Tab 4 at 72. Thus, contrary to the
appellant’s apparent assumption, the fact that she did not engage in the specific
types of inappropriate conduct set forth in MCM 05-002 does not mean that she
did not violate the policy.
¶12 On review the appellant also challenges the administrative judge’s finding
that her Facebook conversations with the veteran violated MCM 05-002. PFR
File, Tab 1 at 6 (quoting ID at 13). The appellant asserts that she “simply
engaged in Facebook conversations with the veteran” and treated him the same as
she would treat anyone else. Id. at 7. She contends that the administrative
judge’s finding that the Facebook conversations “represented anything else” is
not supported. Id.
7
¶13 As noted above, in the initial decision, the administrative judge rejected the
appellant’s efforts to characterize her relationship with the veteran as trivial. The
administrative judge found that the appellant was not truthful by downplaying the
nature of the relationship and attempting to characterize the relationship as
consisting of innocent and trivial Facebook chatting. ID at 11. The appellant’s
contention on review that she simply engaged in Facebook conversations with the
veteran is essentially mere disagreement with the administrative judge’s
credibility determinations and fact findings. Thus, it provides no reason to
disturb the initial decision. See Haebe v. Department of Justice, 288 F.3d 1288 ,
1301 (Fed. Cir. 2002); Weaver v. Department of the Navy, 2 M.S.P.R. 129 ,
133-34 (1980).
The administrative judge properly considered hearsay evidence.
¶14 The appellant also argues on review that the administrative judge erred by
considering the veteran’s statements in support of her removal despite the fact
that she did not have an opportunity to confront or cross-examine the veteran
because the agency did not produce him as a witness during the hearing. PFR
File, Tab 1 at 7. The appellant asserts that, when hearsay evidence is admitted,
“it is generally made by a third party who has nothing to gain or lose by making
the statements and it has other indicia of being the truth.” Id. at 8. The appellant
contends that these circumstances are absent here because the veteran had
“allusions [sic] of a relationship with [her] . . . which did not come to pass” as
well as “a history of alleging sexual relations with other employees.” Id.
Therefore, the appellant asserts, the administrative judge should not have
considered the veteran’s statements. Id.
¶15 This argument is unpersuasive. As the appellant acknowledges, hearsay
evidence is admissible in Board proceedings, and the assessment of the probative
value of hearsay evidence necessarily depends on the circumstances of each case.
Borninkhof v. Department of Justice, 5 M.S.P.R. 77 , 83-87 (1981). Factors
affecting the weight to be accorded to hearsay evidence include: the consistency
8
of declarants’ accounts with other information in the case; whether corroboration
for statements can otherwise be found in the agency record; and the absence of
contradictory evidence. Id. at 87.
¶16 In crediting the veteran’s statements that he had a personal relationship
with the appellant, the administrative judge found the veteran’s allegations have
merit, not only because of the Facebook conversations, but also because he was
aware that Business Office Chief M.M., who was the appellant’s supervisor as
well as the proposing official, had asked her to write a statement about her
relationship with him, and he knew what was in the statement. ID at 14 (citing
IAF, Tab 4 at 50, 62-63). The administrative judge found that the only way the
veteran could have known this information is if the appellant told him this, which
is indicative of her having a personal relationship with him. Id. In light of these
circumstances, we discern no error in the administrative judge’s decision to credit
the veteran’s statements.
¶17 Moreover, while the administrative judge credited the veteran’s statements
that he had a relationship with the appellant, she did not rely solely on this
hearsay evidence to sustain the charge. As discussed above, the initial decision
shows that the administrative judge based her finding that the agency proved its
charge on the hearing testimony, the documentary evidence, and the inherent
implausibility of the appellant’s denial of an inappropriate relationship with the
veteran, not on the veteran’s hearsay statement. ID at 2-14. Thus, we find that
the administrative judge did not give improper weight to the veteran’s statement.
The administrative judge correctly found that the agency established nexus.
¶18 The appellant does not offer any specific argument on review challenging
the administrative judge’s finding that the agency established a nexus between the
sustained charge and both the appellant’s ability to accomplish her duties
satisfactorily and SORCC’s ability to treat veterans. ID at 14-15, 23-25. Based
on our review of the record, we discern no reason to disturb this finding.
9
The administrative judge correctly found that the appellant failed to prove
harmful procedural error.
¶19 On review, the appellant renews her argument that the agency committed
harmful procedural error by violating agency Directive 5021, Part I, Chapter 3,
Section 7(d), which provides that “material which cannot be disclosed to the
employee or to his or her representative cannot be used to support the reasons in a
notice of proposed adverse action and must not be included in the evidence file.”
PFR File, Tab 1 at 8-9 (citing IAF, Tab 13 at 19 of 29); IAF, Tab 1 at 9. The
appellant asserts that, because the agency redacted the veteran’s name from the
copy of the record it provided her representative in conjunction with her removal,
the agency should not have used the veteran’s testimony to support the reasons
for her removal and should not have included that testimony in the evidence file.
PFR File, Tab 1 at 9.
¶20 The administrative judge rejected this argument in the initial decision,
finding that the appellant knew the identity of the veteran and that she has not
alleged otherwise. ID at 21. Therefore, the administrative judge correctly found
that, even if the agency violated its Directive, the appellant was not harmed and
the evidence provided to her allowed her a full opportunity to make a meaningful
reply. ID at 22.
Further adjudication is necessary regarding the appellant’s whistleblower
reprisal claim.
¶21 In an adverse action appeal, such as this, an appellant’s claim of
whistleblower reprisal is treated as an affirmative defense. Shibuya v.
Department of Agriculture, 119 M.S.P.R. 537 , ¶ 19 (2013). Once the agency
proves its adverse action case by a preponderance of the evidence, the appellant
must show by preponderant evidence that she engaged in whistleblowing activity
by making a protected disclosure under 5 U.S.C. § 2302 (b)(8) and that the
disclosure was a contributing factor in the agency’s personnel action. Id.
10
¶22 A protected disclosure is a disclosure of information that the appellant
reasonably believes evidences a violation of any law, rule, or regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety. 5 U.S.C. § 2302 (b)(8)(A);
Chambers v. Department of the Interior, 515 F.3d 1362 , 1367 (Fed. Cir. 2008).
The proper test for assessing whether a protected disclosure occurred is an
objective one: Could a disinterested observer with knowledge of the essential
facts known to and readily ascertainable by the employee reasonably conclude
that the actions of the government evidence one of the categories of wrongdoing
identified in 5 U.S.C. § 2302 (b)(8)(A)? 3 Lachance v. White, 174 F.3d 1378 ,
1381 (Fed. Cir. 1999).
¶23 The most common way of proving that a disclosure was a contributing
factor in a personnel action is the “knowledge/timing” test. Wadhwa v.
Department of Veterans Affairs, 110 M.S.P.R. 615 , ¶ 12, aff’d, 353 F. App’x 435
(Fed. Cir. 2009). Under that test, an appellant can prove the contributing factor
element through evidence that the official taking the personnel action knew of the
whistleblowing disclosure and took the personnel action within a period of time
such that a reasonable person could conclude that the disclosure was a
contributing factor in the personnel action. Id.
¶24 If the appellant shows that she made a protected disclosure and that the
disclosure was a contributing factor in the agency’s personnel action, the burden
of persuasion shifts to the agency to show by clear and convincing evidence that
it would have taken the same personnel action in the absence of any protected
disclosure. Hamilton v. Department of Veterans Affairs, 115 M.S.P.R. 673 , ¶ 25
(2011). In determining whether an agency has made such a showing, the Board
3
The reasonable belief test is set forth in section 103 of the Whistleblower Protection
Enhancement Act of 2012 (WPEA), Pub. L. No. 112-199, § 103, 126 Stat. 1465, 1467,
which has been codified at 5 U.S.C. § 2302(b)(13).
11
will consider the following factors: (1) the strength of the agency’s evidence in
support of its action; (2) the existence and strength of any motive to retaliate on
the part of the agency officials who were involved in the decision; and (3) any
evidence that the agency takes similar actions against employees who are not
whistleblowers but who are otherwise similarly situated. See Carr v. Social
Security Administration, 185 F.3d 1318 , 1323 (Fed. Cir. 1999).
¶25 As the administrative judge noted in the initial decision, ID at 16, during
the proceedings below, the appellant alleged that, between November 7, 2011,
and March 19, 2012, she made the following five disclosures to M.M.: (1) Lead
AOD A.R. brought a laptop computer to work and watched movies during work
hours; (2) A.R. and L.H., another agency employee, manipulated payroll records
to allow each of them to take off from work on alternate Fridays; (3) A.R. was
conducting his personal business during work time; (4) A.R. slapped M.M. on her
bottom; and (5) J.B. would wrap herself in a blanket and sleep during her shift.
IAF, Tab 1 at 10-15; Tab 14 at 16 of 135.
¶26 Regarding the first disclosure, the administrative judge noted that A.R.
admitted during his hearing testimony that he watched a movie when working an
18-hour shift in order to stay awake. ID at 20. The administrative judge found
that the appellant reasonably believed that this conduct violated a rule or
regulation. ID at 20. Applying the three factors set forth in Carr, the
administrative judge found that the agency showed by clear and convincing
evidence that it would have removed the appellant absent this disclosure. ID
at 20-21.
¶27 Addressing the remaining disclosures, the administrative judge found that
“allegations two through five have no merit to them.” ID at 18. More
specifically, regarding disclosures two through four, the administrative judge
found that the appellant failed to show that she had a reasonable belief that a
violation of law, rule, or regulation occurred. ID at 18-19. In making this
finding, the administrative judge credited the agency’s witnesses’ testimony
12
denying the conduct described in the disclosures over that of the appellant, and
noted that the appellant failed to present any evidence supporting her allegations
of wrongdoing prohibited by section 2302(b)(8)(A). ID at 18-19. Further, the
administrative judge found that the facts alleged by the appellant in the third
disclosure were “inherently improbable” and that it was more likely than not that
the appellant “fabricated” the allegation in the fourth disclosure. ID at 18-19. As
for the appellant’s fifth disclosure, the administrative judge again found that there
was no evidence to support the appellant’s allegation and that the appellant failed
to “meet her burden of proof that [J.B.] slept on the job . . . .” ID at 19.
¶28 In assessing whether the appellant’s disclosures were protected, we find the
administrative judge applied an incorrect legal standard by requiring the appellant
to prove that the alleged misconduct actually occurred. The test for protected
status is not the truth of the matter disclosed but whether it was reasonably
believed. See Special Counsel v. Spears, 75 M.S.P.R. 639 , 654 (1997).
Therefore, the appellant’s failure to prove that the alleged misconduct described
in her disclosures occurred is not a valid basis for finding that those disclosures
are not protected under 5 U.S.C. § 2302 (b)(8). Rather, to prove that her
disclosures are protected, the appellant need only show that a disinterested
observer with knowledge of the essential facts known to and readily ascertainable
by her could reasonably conclude that: (1) the alleged misconduct occurred; and
(2) the alleged misconduct evidences one of the categories of wrongdoing
identified in 5 U.S.C. § 2302 (b)(8)(A). 4
4
T he Senate report accompanying the WPEA expressly disapproves of requiring appellants
asserting whistleblower reprisal claims to prove that the alleged misconduct occurred. See
S. Rep. No. 112-155, at 8 (2012), reprinted in 2012 U.S.C.C.A.N. 589, 598 (stating that “ a
cornerstone of 5 U.S.C. § 2302(b)(8) since its initial passage in 1978 has been that an
employee need not ultimately prove any misconduct to qualify for whistleblower
protection. All that is necessary is for the employee to have a reasonable belief that the
information disclosed evidences a kind of misconduct listed in section 2302(b)(8).”)
13
¶29 Regarding the applicable evidentiary standard for proving that disclosures
are protected, under section 103 of the WPEA, which has been codified at
5 U.S.C. § 2302 (b)(13), any presumption relating to the propriety of performance
of a duty by an employee whose conduct is the subject of a whistleblower
disclosure may be rebutted by “substantial evidence.” 5 The Supreme Court has
defined substantial evidence as “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Richardson v. Perales,
402 U.S. 389 , 401 (1971). It is “more than a mere scintilla of evidence but may
be somewhat less than a preponderance.” Hays v. Sullivan, 907 F.2d 1453 , 1456
(4th Cir. 1990) (quoting Laws v. Celebrezze, 368 F.2d 640 , 642 (4th Cir. 1966)).
¶30 In addition to applying the wrong evidentiary standard in assessing whether
the appellant proved that her disclosures were protected, the administrative judge
failed to make specific findings regarding the contributing factor element. To the
extent that she addressed this element, her discussion was limited to her findings
that: (1) all of the witnesses credibly testified that they did not see any of the
Reports of Contact (ROCs) the appellant created (in which she described the
alleged misconduct) while she was still employed by the agency; (2) there is
nothing that shows the ROCs were made prior to the appellant receiving the
Notice of Proposed Removal; and (3) there is no way to determine when the
ROCs were drafted. ID at 20.
¶31 Significantly, however, the ROCs were not the only mechanism by which
the appellant allegedly made her disclosures. In her hearing testimony, the
appellant stated that, in addition to submitting ROCs to M.M. documenting the
alleged misconduct, she also discussed the misconduct described in the ROCs
5
The legislative history of the WPEA explains that this provision was enacted to ensure
that no court would require “irrefragable proof” to rebut the presumption that “public
officers and employees perform their duties in good faith and in accordance with the
law and governing regulations.” S. Rep. No. 112-155, at 7.
14
with M.M. at or around the time it occurred. Hearing Compact Disc (HCD)
(testimony of the appellant). In that case, whether M.M. saw the ROCs is of no
consequence, as M.M. was nonetheless aware of the appellant’s disclosures
several months before she issued the Notice of Proposed Removal. 6
¶32 Because the administrative judge applied an incorrect legal standard in
analyzing the appellant’s disclosures and did not make any specific findings
regarding the contributing factor element of the appellant’s whistleblower reprisal
claim, we vacate the findings of the initial decision pertaining to that claim and
remand the case for further adjudication and issuance of a new initial decision.
On remand, the administrative judge shall afford the appellant an opportunity for
discovery on her affirmative defense of whistleblower reprisal and a supplemental
hearing on that affirmative defense if she requests one. As to disclosures two
through five, 7 the administrative judge shall make findings regarding what the
appellant observed. Applying the disinterested observer standard, the
administrative judge shall then determine whether the appellant reasonably
believed that the alleged misconduct described in disclosures two through five
occurred and, if so, whether the appellant reasonably believed that the alleged
misconduct constituted wrongdoing as described in 5 U.S.C. § 2302 (b)(8). For
each disclosure that she finds protected, the administrative judge shall then
determine whether the disclosure was a contributing factor to the appellant’s
6
In her hearing testimony, M.M. acknowledged that the appellant raised the issues of
A.R. watching a movie at work and M.B. sleeping during her shift (i.e., the subject of
disclosures one and five) during her November 2011 performance appraisal. HCD
(testimony of M.M.). Thus, it is undisputed that the proposing official had knowledge
of at least two of the appellant’s five disclosures about 9 months before she issued the
Notice of Proposed Removal.
7
We agree with the administrative judge’s finding that the appellant reasonably
believed that the conduct described in her first disclosure, which A.R. admitted,
constituted a violation of law, rule, or regulation. ID at 20. Consequently, on remand,
the administrative judge shall find that disclosure protected.
15
removal and, if so, determine whether the agency proved by clear and convincing
evidence that it would have removed the appellant absent her
protected disclosure.
¶33 Because we are remanding the case for further proceedings regarding the
appellant’s affirmative defense of whistleblower reprisal, the administrative judge
must “issue a new initial decision that addresses this affirmative defense and its
effect on the outcome of the appeal, if any, giving appropriate consideration to
any additional relevant evidence developed on remand.” Viana v. Department of
the Treasury, 114 M.S.P.R. 659 , ¶ 8 (2010). However, if the appellant does not
prevail on that affirmative defense on remand, the administrative judge may adopt
her prior findings in her new initial decision. See id., ¶ 8.
ORDER
¶34 For the reasons stated above, we REMAND this appeal to the Western
Regional Office for further adjudication consistent with this Opinion and Order.
FOR THE BOARD:
______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
