UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

2006 MSPB 269

Docket No. AT-1221-06-0340-W-1

Prisca M. DeLeonardo,

Appellant,

v.

Equal Employment Opportunity Commission,

Agency.

September 7, 2006

James P. Alexander, Esq., Birmingham, Alabama, for the appellant.

Theodore E. Ravas, Jr., Esq., Washington, D.C., for the agency.

BEFORE

Neil A. G. McPhie, Chairman
Mary M. Rose, Vice Chairman
Barbara J. Sapin, Member

OPINION AND ORDER

¶1                  The appellant has petitioned for review of an initial decision which dismissed her individual right of action (IRA) appeal for lack of jurisdiction.  For the reasons set forth below, we GRANT the appellant’s petition, VACATE the initial decision, and REMAND the appeal to the Atlanta Regional Office for further adjudication consistent with this Opinion and Order.

BACKGROUND

¶2                  The appellant was reassigned from the position of Supervisory Trial Attorney, GS-14, to the position of Trial Attorney, GS-14.  Initial Appeal File (IAF), Tab 1, OSC Complaint,* Ex. 13.  The appellant filed a complaint with the Office of Special Counsel (OSC) claiming that the reassignment and a prior performance evaluation were effected in retaliation for whistleblowing activities protected under the Whistleblower Protection Act (WPA); specifically, the appellant alleged that she disclosed incidents of gross mismanagement, abuse of authority, and violations of laws, rules, or regulations within the agency’s Birmingham (Alabama) District Office.  IAF, Tab 1, OSC Complaint.  The OSC terminated its investigation of the matter and informed the appellant of her right to seek corrective action from the Board, which she subsequently sought through the filing of the present individual right of action (IRA) appeal.  IAF, Tab 1.

¶3                  On initial appeal, the appellant raised substantially the same arguments set forth in her OSC complaint.  The agency filed a motion to dismiss the appeal for lack of jurisdiction, IAF, Tab 8, to which the appellant responded in opposition, IAF, Tab 10.  Without holding a hearing, the administrative judge dismissed the appeal for lack of jurisdiction, finding that the appellant had failed to non-frivolously allege that she engaged in whistleblowing activity by making a protected disclosure under 5 U.S.C. § 2302(b)(8).  IAF, Tab 12.

¶4                  On petition for review, the appellant argues, inter alia, that she made non-frivolous allegations of Board jurisdiction over her IRA appeal, and that the administrative judge erred in dismissing the appeal for lack of jurisdiction.  Petition for Review File (PFR File), Tab 1.  The agency has filed a response in opposition to the appellant’s petition.  PFR File, Tab 3.

ANALYSIS

¶5                  The Board has jurisdiction over an IRA appeal if the appellant has exhausted her administrative remedies before the OSC and makes non-frivolous allegations that:  (1) She engaged in whistleblowing activity by making a protected disclosure, and (2) the disclosure was a contributing factor in the agency’s decision to take or fail to take a personnel action.  Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).  It is undisputed, and the administrative judge found, that the appellant exhausted her administrative remedies before the OSC.  See IAF, Tab 1, OSC Complaint and Notice of Termination.  Thus, the determinative issue is whether the appellant has made non-frivolous allegations that she engaged in whistleblowing activity by making a protected disclosure, and that the disclosure was a contributing factor in the agency’s November 15, 2004 performance rating of the appellant and its decision to reassign her from the position of Supervisory Trial Attorney to the position of Trial Attorney, effective August 21, 2005.  Based on our review of the record, we find that the appellant has met the requisite non-frivolous standard for establishing Board jurisdiction over an IRA appeal, and consequently, she is entitled to a hearing on the merits.

The appellant has non-frivolously alleged that she engaged in whistleblowing activity by making a protected disclosure.

¶6                  In order to establish jurisdiction over an IRA appeal, an appellant is not required to prove that she made protected disclosures but, rather, is required merely to make a non-frivolous allegation that her disclosures were protected.  Grubb v. Department of the Interior, 96 M.S.P.R. 377, ¶ 11 (2004); see also Greenspan v. Department of Veterans Affairs, 94 M.S.P.R. 247, ¶ 9 (2003) (the appellant need only present a non-frivolous allegation that at least one disclosure was protected under the WPA).  Protected whistleblowing takes place where an appellant made disclosures that she reasonably believed evidenced a violation of law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health and safety.  Grubb, 96 M.S.P.R. 377, ¶ 11.  To establish that the appellant had a reasonable belief that a disclosure met the requisite criteria, she need not show that the matter disclosed actually established a regulatory violation or any of the other situations detailed under 5 U.S.C. § 2302(b)(8)(A); rather, the appellant must show that the matter disclosed was one which a reasonable person in her position would believe evidenced any of the situations specified in 5 U.S.C. § 2302(b)(8).  Schneider v. Department of Homeland Security, 98 M.S.P.R. 377, ¶ 8 (2005).  The proper test for determining whether an employee had a reasonable belief that her disclosures revealed misconduct prohibited under the WPA is whether a disinterested observer, with knowledge of the essential facts known to and readily ascertainable by the employee, could reasonably conclude that the actions of the government evidence wrongdoing as defined by the WPA.  Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999), cert. denied, 528 U.S. 1153 (2000).

¶7                  In the present appeal, the appellant alleged that she made at least 6 disclosures of gross mismanagement, abuses of authority, and violations of law, rule, or regulation within the agency’s Birmingham (Alabama) District Office.  IAF, Tab 1 at 4-7; OSC Complaint at 6-9.  In particular, the appellant alleged, inter alia, that on October 14, 2004, her then-supervisor, Regional Attorney Charles Guerrier, made repeated misrepresentations during a mediation of the grievance of another employee, and that she subsequently reported Mr. Guerrier’s statements to Eric Dreiband, the agency’s General Counsel.  IAF, Tab 1 at 4; OSC Complaint at 8.  The appellant also alleged that, in May 2005, she disclosed to Gwendolyn Reams, the agency’s Associate General Counsel, that Mr. Guerrier “misrepresented and omitted facts in his report to Headquarters” in a particular case, so that the case could be approved for litigation.  IAF, Tab 1 at 5; OSC Complaint at 7.  The appellant further alleged that she disclosed to James Lee, the agency’s Deputy General Counsel, Mr. Dreiband, and others that she was instructed by an agency official on July 11, 2005, to sign pleadings and documents regardless of whether she had any legal or ethical concerns over the documents.  IAF, Tab 1 at 6; OSC Complaint at 6.  The appellant alleged that she believed her disclosures evidenced violations of the Federal Rules of Civil Procedure, the Alabama Rules of Professional Conduct, and the U.S. District Court Local Rules for the Alabama Northern District.  IAF, Tab 1 at 6; OSC Complaint at 3, 6.  The appellant also alleged that she disclosed additional improper actions by agency management, including an order by Mr. Guerrier that she give unsatisfactory ratings to the employees in her unit, that an improper quota was imposed on the office, and that Mr. Guerrier committed forgery when he signed her name to a complaint.  IAF, Tab 1 at 4-7; OSC Complaint at 6-8.

¶8                  The appellant’s allegations as to whether she made protected disclosures are sufficient to meet the non-frivolous standard.  The Board has found allegations to be non-frivolous where an attorney disclosed an agency’s alleged misrepresentations and falsifications of fact in a judicial proceeding, despite the appellant’s failure to cite a specific law, rule, or regulation.  Kalil v. Department of Agriculture, 96 M.S.P.R. 77, ¶ 16 (2004); see also Johns v. Department of Veterans Affairs, 95 M.S.P.R. 106, ¶ 10 (2003) (finding allegations to be non-frivolous where the appellant disclosed false statements made by agency officials to other federal agencies).  Here, the appellant has cited specific legal bases upon which she based her belief that her alleged disclosures evidenced violations of law, rule, or regulation.  See IAF, Tab 1 at 6-7; OSC Complaint at 6.  Likewise, her alleged disclosures of gross mismanagement and abuses of authority, if proven by preponderant evidence, could be sufficient to establish that a reasonable person in her position would have believed that they evidenced disclosures specified in 5 U.S.C. § 2302(b)(8).  Given the nature of the appellant’s allegations, we find that they, if proven, could establish that her disclosures were protected under the WPA.  Moreover, any doubt or ambiguity as to whether the appellant has made a non-frivolous allegation should be decided in favor of affording the appellant a hearing.  Kutty v. Department of Housing & Urban Development, 96 M.S.P.R. 590, ¶ 11 (2004).  Thus, we find that the appellant has made a non-frivolous allegation that she engaged in whistleblowing activity by making a protected disclosure.

The appellant has non-frivolously alleged that the disclosures were a contributing factor in the agency’s decision to take a personnel action.

¶9                  To satisfy the contributing factor jurisdictional criterion, an appellant need only raise a non-frivolous allegation that the fact of, or content of, the protected disclosure was one factor that tended to affect in any way a personnel action.  Perkins v. Department of Veterans Affairs, 98 M.S.P.R. 250, ¶ 19 (2005).  An appellant may demonstrate that a disclosure was a contributing factor in a personnel action through circumstantial evidence, including, but not limited to, evidence that the official taking the personnel action knew of a 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); Easterbrook v. Department of Justice, 85 M.S.P.R. 60, ¶ 7 (2000) (discussing the knowledge/timing test).

¶10               The appellant has alleged that her whistleblowing activity was a contributing factor in the agency’s decision to take two personnel actions against her:  a November 15, 2004 performance evaluation by Mr. Guerrier which rated her as “Minimally Successful” in the category of “Operational Efficiency and Effectiveness,” and her August 21, 2005 reassignment from the position of Supervisory Trial Attorney to the position of Trial Attorney.  The agency’s rating of the appellant’s performance and its decision to effect her reassignment are considered “personnel actions” for purposes of the WPA.  5 U.S.C. § 2302(a)(2)(A)(iv), (viii); Garrison v. Department of Defense, 101 M.S.P.R. 229, ¶¶ 14-15 (2006).  The performance evaluation was issued approximately one month after the appellant’s alleged disclosure to Mr. Dreiband of Mr. Guerrier’s misrepresentations during the mediation session, and, since she allegedly informed Mr. Guerrier of her disclosure, the appellant’s contentions are sufficient to constitute non-frivolous allegations, under the knowledge/timing test, that her disclosure was a contributing factor in her lowered performance rating.  IAF, Tab 1 at 4; OSC Complaint at 8; see, e.g., Easterbrook, 85 M.S.P.R. 60, ¶ 10 (finding that an interval of slightly more than 7 months between the disclosure and the personnel action was sufficient to satisfy the knowledge/timing test).  Further, the appellant’s reassignment was effected approximately 6 weeks after her disclosure that she was instructed by an agency official to sign pleadings and documents regardless of whether she had any legal or ethical concerns over the documents.  IAF, Tab 1 at 5-6; OSC Complaint at 6-7.  The appellant has alleged that Mr. Lee, the apparent deciding official in her reassignment, knew of the disclosure.  IAF, Tab 1 at 6; see IAF, Tab 6, Subtab 4n.  Therefore, we find that the appellant has raised non-frivolous allegations that her disclosures were a contributing factor in the November 15, 2004 performance evaluation and the agency’s decision to reassign her to the position of Trial Attorney.

¶11               Because the appellant has exhausted her administrative remedies before the OSC and made non-frivolous allegations that she engaged in whistleblowing activity by making a protected disclosure, and that the disclosure was a contributing factor in the agency’s decision to take the aforementioned personnel actions, we find that the Board has jurisdiction over this IRA appeal.

ORDER

¶12               Accordingly, we REMAND this appeal to the Atlanta Regional Office for further adjudication consistent with this Opinion and Order.  The administrative judge shall afford the parties an opportunity to conduct appropriate discovery and afford the appellant the hearing she has requested.  The administrative judge shall issue a new initial decision addressing the merits of this appeal.

FOR THE BOARD:

/s/
Bentley M. Roberts, Jr.
Clerk of the Board
Washington, D.C.



* We note that a tab in the appellant’s initial appeal appears to contain a typographical error.  In this Opinion and Order, the tab “OCS COMPLAINT with attachments” will be cited as “OSC Complaint.”