UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DENVER FIELD OFFICE

TONJA LYNN LANEY, DOCKET NUMBER

Appellant, DE-1221-15-0139-W-2

v.

DEPARTMENT OF VETERANS DATE: October 14, 2015

AFFAIRS,
Agency.

Tonja Lynn Laney, Scottsdale, Arizona, pro se.

Alfred Steinmetz, Esquire, Phoenix, Arizona, for the agency.

BEFORE
David S. Brooks
Administrative Judge

INITIAL DECISION

INTRODUCTION
On January 2, 2015, the appellant timely filed this individual right of
action (IRA) appeal alleging that in reprisal for her making protected disclosures
and providing testimony to the Inspector General, the agency detailed her from
her position as Chief Fiscal Officer pending an administrative investigation and
searched her office. Initial Appeal File 1 (IAF1), Tab 1. The Board has
jurisdiction over this appeal pursuant to 5 U.S.C. 1214(a)(3), 1221(a), 1221(e).
IAF1, Tab 9; Initial Appeal File 2 (IAF2), Tab 7. The hearing the appellant
requested was held on September 1, 14, and 15, with the record closing at the
 2

conclusion of the hearing. Initial Appeal File 2 (IAF2), Hearing Compact Disc
(HCD).
For the following reasons, I find the agency subjected the appellant to
whistleblower reprisal. The appellant is hereby notified that she may file a
motion for the initiation of an addendum proceeding on damages. See 5 C.F.R.
1201.204(d)-(e).

ANALYSIS AND FINDINGS

In brief, I find that the agencys detail of the appellant was a significant
change in working conditions appealable under the Whistleblower Protection Act,
and that the agencys search of her office was simply part and parcel of the detail,
although it was not a separately appealable significant change in working
conditions under 5 U.S.C. 2302(a)(2)(A)(xi). I find that the proximate reason
for the agencys detail of the appellant and related search of her office was an
administrative investigation into allegations about her, but more importantly, I
find that the underlying administrative investigation was commenced primarily
because Maria Schloendorn, chief of the Human Resources Office, introduced
baseless allegations against the appellant in reprisal for her whistleblowing
activity. See IAF2, Tab 15 at 372-73 (investigative report summary); HCD,
Scherpf (identifying basis of investigation), Pokorny (establishing retaliatory
animus of Schloendorn and her willingness to manufacture charges against the
appellant), Nemcek (establishing Schloendorns insistence of a search based on
files the appellant had in her office), Appellant (establishing Schloendorns
knowledge of and interest in files the appellant indicated she was going to share
with the Inspector General). There was at least one basis for the investigation
that had no direct tie to Schloendorn, namely the hostile work environment
complaint of one of the appellants staff. IAF1, Tab 11 at 4-5, 23-24. However, I
find the agencys defense of its actions fell far short of establishing by clear and
convincing evidence that it would have detailed the appellant and subsequently
 3

searched her office in the absence of the appellants whistleblowing and Inspector
General activities.

A. Background
The following is undisputed unless otherwise noted. The appellant has
been Chief Fiscal Officer (CFO) (sometimes referred to as Chief Financial
Officer), GS-14, for the Phoenix Veterans Affairs Healthcare System (Phoenix
office) since February 2012, and prior to that she was CFO for the Amarillo
Veterans Affairs Healthcare System (Amarillo office). HCD, Appellant. As
CFO, the appellant oversees the Phoenix offices Fiscal Services unit. Id.
During the timeframe of 2013 to 2014, the Associate Director of the
Phoenix office was Lance Robinson, and the Assistant Director was John Scherpf;
both Robinson and Scherpf testified at the Boards hearing. HCD, Robinson,
Scherpf. Robinson has been on administrative leave for approximately the last
500 days for reasons unrelated to the instant IRA appeal, and Scherpf left the
Phoenix office in June 2015 to accept a position with a private entity. Id.
Also during the timeframe of 2013 to 2014, the chief of the Phoenix
Human Resources Office Management Service (HR) was Maria Schloendorn;
HRs Section Chief for Employee Relations was Rodney Daughetee; Joe Masisak
was an HR Specialist who occasionally acted as HR chief; and Jennifer Nemcek
was an Employee and Labor Relations Specialist. HCD, Robinson, Daughetee,
Nemcek. In December 2013, Caryl Pokorny joined HR as supervisor of the
Benefits section. HCD, Pokorny. In or after December 2014, Schloendorn
retired from federal service. HCD, Appellant. The following HR employees
testified at the Boards hearing: Daughetee, who has since left the Phoenix
system for another state; Nemcek, and Pokorny. The appellant called
Schloendorn as a witness and requested a subpoena to compel her attendance.
IAF2, Tab 7. However, during a hearing break in an unrecorded conversation
with the appellant and the agency representative, the appellant stated that
 4

Schloendorn had refused service of her subpoena when she had it delivered to
her address of record. After I apprised the appellant of the documentation that
she would need to submit for me to consider whether enforcement of the
subpoena should be sought, and after I reminded her that she was the only party
that had Schloendorn as a witness and that she thus had the right to withdraw
Schloendorn from the witness list, she did so. I recorded the lack of any
objection to the withdrawal. HCD, Withdrawal of Schloendorn.
On November 29, 2013 (first instance of protected activity), the appellant,
in response to an email asking her to concur with a Student Loan Repayment
Program (SLRP) request, sent the following to PHXVAHCS/DIR with a carbon
copy to Robinson:
Nonconcur. Why didnt this go out to all services for a submission?
Why are the only new title 5 recommended approvals for PVAHCS
HR employees who coordinated the suspense and oversees the
program? There are other hard to fill title 5/Title 38 positions that
should be considered for this as well. This should go out to all
services for submission and ranked by pentad and/or Director before
submission.
IAF2, Tab 15 at 89 (emphasis added). After a series of email exchanges that
followed, and which included Schloendorn, Robinson sent the following to, inter
alia, Schloendorn and the appellant:
Please meet and address these issues today.
Im forwarding this message to our facility officer and requesting
that they conduct an audit to ensure that were following both our
station level policy and HR policy and OPM guidelines if they exist.
Id. at 85.
On January 23, 2014 (second instance of protected activity), the appellant
sent the following to Robinson, entitled Timekeeping irregularities:
[F]iscal service has discovered timekeeping irregularities. I am
currently recommending that we send out clear instructions
reminding supervisors and chiefs of the appropriate use of CT, OT,
and telework and then revisit in our annual timekeeping audits.
 5

Education is absolutely necessary at this point as the first employee

is clinical administration and the second is an admin HR supervisor.
Id. at 93-94. The email was forwarded to Schloendorn on January 27, 2014. Id.
at 93. The appellants email went on to describe the Employee #1 GA-11
Admin as [n]ot telework eligible but appears working OT from home due to
irregularity of hours, Odd OT hours, and OT does not appear to be
preapproved, before listing data about ten days of work claimed by the
employee. Id. at 94. The appellants email described Employee #2 GS-13
Supervisor as [n]ot telework eligible but appears working OT from home due
to irregularity of hours, [t]aking leave and working CT in the same day,
[t]aking Friday off and working CT Saturday, and CT used to complete TMS
training when by law CT/OT cannot be used to complete regularly scheduled
training, before listing data about seven days of work claimed by the employee.
Id. at 95. On January 28, 2014, Masisak sent an email to Robinson, Schloendorn,
and the appellant, stating, we will need the employees[] names so they could
evaluate the concerns. Id. at 92. On the same date, the appellant sent a private
email to Robinson stating, Joe [Masisak] was the approving official on the
second timecard. Id.
On May 14, 2014 (third instance of protected activity), the appellant
provided testimony to the Office of Inspector General about a number of matters
pertaining to the Phoenix office. HCD, Appellant; IAF1, Tab 1 at 5; IAF2, Tab
15 at 79.
On May 15, 2014 (alleged retaliation), Steve Young, acting Medical Center
Director, placed the appellant on a temporary administrative detail to the Phoenix
offices Quality, Safety and Improvement Section. IAF1, Tab 11 at 34 (lasting
until return to CFO position on September 8, 2014). The notice of detail stated:
An allegation has been filed that necessitates an investigation in
which you are named as a possible subject. The misconduct alleged
is of a very serious nature and during the investigation [it] would be
inappropriate for you to remain in contact with your staff who may
 6

be complainants or witnesses. As a result, you are being

Administratively/Involuntarily Temporarily Detailed, so that the
agency will have the opportunity to determine whether inappropriate
conduct existed.
Id. The appellant was directed to report to Michelle Bagford, Chief of the
Quality, Safety and Improvement Section, effective May 16, 2014. Id. The
agency temporarily appointed Debbie Simon as acting CFO and Debbie Hagen as
assistant CFO. HCD, Simon, Hagen, Daughetee. The appellant testified without
dispute that she performed no work while on that detail. HCD, Appellant. The
administrative investigation that followed was conducted by the Administrative
Investigation Board (AIB). HCD, Scherpf.
After the appellant was informed of her detail away from her CFO position,
she was escorted by Nemcek to her office to retrieve any personal belongings, but
was prevented from taking any agency files with her, per orders Nemcek had
received. HCD, Appellant, Nemcek. I reserve the bulk of my findings on the
search for below. However, what follows in the instant paragraph was
undisputed. After the appellant left the building, Simon and Hagen searched the
appellants office, with agency Detective Robert Mueller there for the ostensible
purpose of either observing or providing guidance on searching techniques.
HCD, Nemcek, Simon, Hagen, Daughetee, Mueller. Simon and Hagen sorted the
contents of the appellants office into the categories of work product, personal
belongings, and items they flagged as being questionable for a supervisor to have,
although they testified that it was not upon their own initiative that they flagged
questionable items. HCD, Simon, Hagen, Daughetee, Mueller. Either Simon and
Hagen or Mueller boxed the personal and questionable items, and Mueller took
the boxes to Daughetee, who stored them. HCD, Mueller, Daughetee. The
agency changed the appellants offices lock and taped shut the edges of her
offices door. HCD, Mueller.
On May 23, 2014, at Detective Muellers request, the appellant appeared
for questioning about the boxed contents of her office. HCD, Mueller, Appellant.
 7

As to questions about documentation she had from her prior employment at the
Amarillo office, the appellant told Mueller that many of the documents were
best practices templates for her work in Phoenix. HCD, Appellant. As to
questions about her documentation of travel savings awards of two Amarillo
employees, the appellant told Mueller that they were evidence directly related to
defending herself against grievances that had been filed while she was at
Amarillo, but that she had forgotten to destroy the documents after the grievances
were resolved. Id. As to questions about a key that was found in her office that
was reported missing by her predecessor, the appellant told Mueller that she did
not know the lock to which the key belonged nor did she have any way of
knowing that. Id. Based on the appellants retention of the Amarillo employee
awards documentation, Mueller asked for the U.S. Attorneys Office to criminally
charge the appellant with willful removal of government property, and the U.S.
Attorney did so. HCD, Appellant; Mueller. Mueller testified that the agency
ultimately concluded that it could not bring the charge in federal court and that it
should have pursued charges in state court. HCD, Mueller. However, the agency
stopped pursuing the charge, and it was ultimately dismissed with no further
criminal action taken on it. Id.
The Administrative Investigation Board was composed of the Associate
Director of the San Diego Medical Center, the equal employment opportunity
manager for the agencys Maine Healthcare System, the chief financial officer for
the Salt Late Medical Center, the Purchased Care Manager for the Southwest
Healthcare Network, and an Employee Relations Specialist for the West Texas
Health Care System. HCD, Scherpf; IAF1, Tab 11 at 26-32. On August 4, 2014,
the AIB issued its findings on the allegations it had received pertaining to (1)
inappropriate behavior in violation of EEO principles, (2) inappropriate behavior
in violation of leave policy, (3) behavior violating merit systems principles, and
(4) inappropriately released protected information. IAF2, Tab 15 at 372. The
Administrative Investigation Board found, in pertinent part:
 8

The issues identified in this investigation had already been reviewed

in two previous fact findings, and the fact finding found no evidence
to support the allegations.
***
Ms. Maria Schloendorn, Chief Human Resources Officer (HRO) was
not forthcoming with information that she could have offered to
assist with the investigation. Ms. Maria Schloendorn ... was
interviewed three times during this investigation. It was necessary to
continue to interview her given the numerous times her name was
brought up in the sworn testimonies, where she was the source of
pertinent information related to this investigation. At the end of
every interview, the panel asked if there was anything we should
know that was not asked relating to this interview that we had not
asked. The testimony consistently reflected, the HROs lack of
knowledge or awareness or a deliberate attempt to misdirect the
board from information germane to the inquiry: (1) She conducted a
Fact Finding related to an anonymous letter alleging Ms. Laney was
having sex in her office and was promoting a hostile work
environment. When asked for the report, we were told there was no
copy unless the Associate Director, Lance Robinson had a copy. (2)
The board believed that she knew about an investigation done
internally by the Phoenix VA on anonymous letters having the same
allegations (scope); similar, if not exactly, to our investigation. We
all felt that this was important to know and w[ere] surprised that she
was not forthcoming with this until subsequent interviews. It was
more surprising that she would keep this information from us, given
she conducted the internal investigation and also surprising she kept
no documentation as to her findings. (3) She did not provide
documents that were requested of her.
Id. at 373 -75. The AIB sustained the charge that the appellant violated policy by
attending a scheduled court date while failing to record that time away from her
station; the AIB recommended a coach/mentor for the appellant and that she
should receive appropriate disciplinary action as determined by the table of
penalties for falsifying a timecard. Id. at 373-74, 377. However, the AIB found
that the appellant did not engage in the other three alleged inappropriate
behaviors, nor did she inappropriately release protected private information. Id.
at 373-74. The AIB recommended: Ms. Maria Schloendorn should receive
 9

disciplinary action as appropriately identified by the table of penalties. Id. at

377.
On September 8, 2014, Scherpf returned the appellant to her position as
CFO. IAF2, Tab 15 at 16 (appellant submission); HCD, Appellant (identifying
Scherpf as the individual who informed her she was being returned). Two weeks
later, on September 22, 2014, the appellant re-obtained all the files seized from
her office, sealed in two boxes and secured in Human Resources. Id.
The appellant filed a whistleblower retaliation complaint with the Office of
Special Counsel (OSC), and thereafter filed this Board appeal. IAF1, Tabs 1, 2,
9. I found the appellant exhausted OSCs remedies and raised nonfrivolous
allegations of whistleblower reprisal that: (a) the appellant engaged in protected
activity when she (1) reported concerns about a Student Loan Repayment
Program suspense on or about November 30, 2013, (2) reported matters related to
timekeeping irregularities on or about January 28, 2014, and (3) provided
testimony to the Inspector General on May 14, 2014; and (b) those activities were
a contributing factor in the agencys decisions to (1) detail her away from her
CFO position pending an administrative investigation and (2) search her office.
IAF1, Tab 9; IAF2, Tab 7.
B. Applicable Law and Burdens of Proof
Based on the appellants claims to have made protected disclosures and
testified with the Inspector General, she has the burden to prove, by preponderant
evidence, that (a) she engaged in protected activity under 5 U.S.C. 2302(b)(8)
and/or (b)(9)(C), and (b) such (b)(8) disclosure or (b)(9)(C) Inspector General
activity was a contributing factor in the personnel action(s) at issue. 5 U.S.C.
1221(e)(1) (applying contributing factor standard to, inter alia, 2302(b)(8)
disclosures and (b)(9)(C) cooperating with or disclosing information to the
Inspector General); Whitmore v. Department of Labor, 680 F.3d 1353, 1364
(2012); Colbert v. Department of Veterans Affairs, 121 M.S.P.R. 677, 6 (2014).
A preponderance of the evidence is that amount of relevant evidence which a
 10

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).
I informed the appellant of her burden of proof. IAF1, Tab 12.
Section 1221 provides that if the appellant meets her burden to establish
that prima facie case of whistleblower reprisal, then the Board must order
corrective action unless the agency rebuts that prima facie case by presenting
clear and convincing evidence that it would have taken the same personnel
action(s) in the absence of the disclosure. 5 U.S.C. 1221(e)(1)(2); Whitmore,
680 F.3d at 1364. Corrective action may include not only reinstatement in a
position, which the appellant already obtained, but also back pay and related
benefits, medical costs incurred, travel expenses, any other reasonable and
foreseeable consequential damages, and compensatory damages. 5 U.S.C.
1221(g)(1). 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(d). Evidence only clearly and
convincingly supports a conclusion when it does so in the aggregate considering
all the pertinent evidence in the record, and despite the evidence that fairly
detracts from that conclusion. Whitmore at 1368.

C. Findings of Fact
To resolve credibility issues, an administrative judge must identify the
factual questions in dispute, summarize the evidence on each disputed question,
state which version he believes, and explain in detail why he found the chosen
version more credible, considering such factors as: (1) the witnesss opportunity
and capacity to observe the event or act in question; (2) the witnesss character;
(3) any prior inconsistent statement by the witness; (4) a witnesss bias, or lack of
bias; (5) the contradiction of the witnesss version of events by other evidence or
its consistency with other evidence; (6) the inherent improbability of the
witnesss version of events; and (7) the witnesss demeanor. Hillen v.
 11

Department of the Army, 35 M.S.P.R. 453, 458 (1987). 1 Credibility

determinations properly made in one matter may be weighed in determining a
individuals credibility in another matter. Hawkins v. Smithsonian Institution, 73
M.S.P.R. 397, 403-04 (1997).
I find the following facts by preponderant evidence.

1. The appellant established by preponderant evidence that she made

disclosures protected by 5 U.S.C. 2302(b)(8) and engaged in Inspector
General activity protected by 5 U.S.C. 2302(b)(9)(C).
Section 2302(b) protects employees who make disclosures meeting the
criteria of paragraph (8), and protects employees who disclose information to an
Inspector General per paragraph (9)(C). 5 U.S.C. 2302(b)(8), (b)(9)(C).
A (b)(8) disclosure is one that an appellant reasonably believes to evidence
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); Whitmore, 680 F.3d at 1366-67. A reasonable
belief exists if a disinterested observer with knowledge of the essential facts
known to and readily ascertainable by the appellant could reasonably conclude
that the actions of the government evidence one of the categories in section
2302(b)(8)(A). Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999).
The Board has found that disclosures concerning alleged violations of
federal personnel law and merit systems principles may be protected. McDonnell
v. Department of Agriculture, 108 M.S.P.R. 443, 10-13 (2008) (appellant made
a nonfrivolous allegation that she made a protected disclosure because her alleged

1
Hearsay evidence is admissible in Board proceedings and may be accepted as
preponderant evidence even without corroboration if, to a reasonable mind, the
circumstances are such as to lend it credence. Social Security Administration v. Long,
113 M.S.P.R. 190, 26 (2010).
 12

disclosure concerned hiring and selection improprieties under 5 U.S.C. 2301

that could have constituted prohibited personnel practices under 5 U.S.C.
2302(b)(6) and (b)(12)). The Board has defined a 5 U.S.C. 2302(b)(8)(A)(i)
rule to include agency policy or operating instructions. Rusin v. Department of
the Treasury, 92 M.S.P.R. 298, 14-19 (2002). Time and attendance abuse is a
violation of law, rule, or regulation. DiGiorgio v. Department of the Navy, 84
M.S.P.R. 6, 14 (1999); Frederick v. Department of Veterans Affairs, 63
M.S.P.R. 563, 570 (1994). The specific issue under 5 U.S.C. 2302(b)(8) is
whether the appellant reasonably believed that the information she disclosed
evidenced wrongdoing as described by Section 2302(b)(8); the appellant need not
prove the correctness of that belief. Chavez v. Department of Veterans Affairs,
120 M.S.P.R. 285, 18 (2013).
I conclude that all three of the appellants disclosures/activities were
protected by 5 U.S.C. 2302(b)(8) or (b)(9)(C).

a. Activity 1 (Disclosure)
In analyzing this disclosure, I take guidance from the Boards rulings in
Chavez, 120 M.S.P.R. 285. The Board stated that a reasonable belief exists if a
disinterested observer with knowledge of the essential facts known to and readily
ascertainable by the appellant could reasonably conclude that the actions of the
government evidence one of the categories of wrongdoing listed in section
2302(b)(8)(A). Id. at 18. Additionally, an appellant does not need to identify a
statutory or regulatory provision by title or number when the employees
statements and the circumstances surrounding the making of those statements
clearly implicate an identifiable violation of law, rule, or regulation. Id. at 19.
The first alleged disclosure is that on November 29, 2013 at 11:39 a.m., the
appellant sent an email that stated, in pertinent part:
Nonconcur. Why didnt this go out to all services for a submission?
Why are the only new title 5 recommended approvals for PVAHCS
HR employees who coordinated the suspense and oversees the
 13

program? There are other hard to fill title 5/Title 38 positions that
should be considered for this as well. This should go out to all
services for submission and ranked by pentad and/or Director before
submission.
IAF2, Tab 15 at 89 (emphasis added). In other words, the unit who was
responsible for administering student loan reimbursements appeared to be
receiving a disproportionate amount if not the entirety of the monies that the
agency had set aside for recruitment incentives. Id. at 88, 90. Robinson
testified that he perceived the appellant here to be reporting a violation of law,
rule, or regulation, and that he later received feedback from Schloendorn
acknowledging that the agency was not in compliance with SLRP requirements,
which prompted the agency, consistent with an audit that was conducted, to revise
its policies for oversight and administration of the SLRP. HCD, Robinson. The
agency admitted that [t]he appellant determined that the program was not being
administered or managed appropriately by the Human Resources Department
resulting in Mr. Robinson, Associate Director, requesting an audit of the program
by the Compliance Office. IAF2, Tab 15 at 78. Schloendorn received the
appellants email. IAF2, Tab 15 at 88. Based on these facts, I find that a
disinterested observer with knowledge of the essential facts known to and readily
ascertainable by the appellant could reasonably conclude that HRs use of the
SLRP program for its own staff evidenced a violation of agency policy as well as
an abuse of authority. Chavez, 120 M.S.P.R. 285 at 18. Further, regardless of
the details of the appellants disclosure, I find preponderant evidence that the
appellant was at least perceived by Robinson and Schloendorn to have made a
protected disclosure.
In making that finding, I note that the appellants initial appeal form
described the disclosure in terms of being that she reported to Robinson, by text
and email, her belief that a Student Loan Repayment (SLRP) suspense for FY
2014 Allocation contained a fraud. IAF1, Tab 1 at 5 (emphasis added), Tab 9.
If the appellant told Robinson that the suspense actually contained a fraud, the
 14

evidence of that is not before me, and the evidence that anyone other than
Robinson learned of her fraud allegation is also not before me. However, the
appellants submission of OSCs closure letter reveals that her disclosure was
broader than fraud and encompassed an abuse of the Student Loan Repayment
Program. IAF1, Tab 2 at 6. Further, the email chain related to the suspense
begins on November 19 and it ends on December 2, 2013, and I find that the first
time the appellant expressed her concerns about the program and refused to
concur with an approval, on November 29, 2013, she made a protected disclosure
by pointing out facts that appeared to evidence HRs possible abuse of funds that
were intended for the entire medical center by using it solely for its own staff.
IAF2, Tab 15 at 89. At a minimum I find the appellant was perceived to have
made such a disclosure.
I do not find that the appellants later questions about the same program,
on the same November 29, 2013 date, in emails at 12:31 p.m., 12:35 p.m., 12:46
p.m., and 1:19 p.m., made protected disclosures insofar as they only raised
questions about circumstances in which she might be able to concur with the
approval. Id. at 85-87 (e.g., If so, I can concur, before I approve). My
distinction between the 11:39 a.m. email being protected and the later emails not
being protected is based not on the later timing of them, but on the fact that the
earlier, 11:39 a.m. email identified specific facts under which the appellant found
a concurrence not acceptable, while the later emails actually described conditions
under which she might be able to find a concurrence acceptable.

b. Activity 2 (Disclosure)
The second alleged disclosure is that on January 23, 2014, the appellant
reported timekeeping irregularities to Robinson, who forwarded her email to
Schloendorn on January 27, 2014. IAF2, Tab 15 at 94-95. I find the appellants
disclosures contained particularity and disclosed what she reasonably believed
evidenced violations of time and attendance policies. DiGiorgio, 84 M.S.P.R. 6
 15

at 14; Frederick, 63 M.S.P.R. at 570. I assign persuasive value to the Boards

nonprecedential remand order in English v. Small Business Administration, DE-
1221-15-0090-W-1 (April 8, 2015). The Board found that the English appellant
had a reasonable belief that his disclosure evidenced a violation of law, rule, or
regulation when he disclosed that a coworker came to work late, took extended
lunches, and left early. Id. at 13. The Board reasoned:
Although the appellant did not clearly identify a specific law, rule, or
regulation, he provided sufficiently detailed statements to implicate
an identifiable violation of law, rule, or regulation. See Chavez v.
Department of Veterans Affairs, 120 M.S.P.R. 285, 18 (2013).
Id. at 13.
In making that finding, I note that the appellants initial appeal form
indicated that the disclosure was her report to Robinson that the individual he had
tasked with fact finding into the irregularities had actually approved one of the
timecards in question. IAF1, Tab 1 at 5, Tab 9. In other words, the disclosure
appeared to be centered on a conflict of interest. However, OSCs closure letter
describes the disclosure more broadly to be of time and attendance
irregularities, and that language appears in the subject line of every email sent
on the topic. IAF1, Tab 2 at 6; IAF2, Tab 15 at 92. Although I find the
appellants report of time and attendance irregularities were protected and within
the ambit of what she exhausted at OSC, I find her disclosure about a conflict of
interest (1) was of no more than a mere possible future conflict and (2) was not
shown to be transmitted beyond Robinson, who did not retaliate against the
appellant. First, I find no more than a mere possible future conflict of interest.
The email immediately following the appellants January 27, 2014 email is from
Masisak and states, In order to make a determination of next steps as requested,
we will need the employees[] names and all evidence of the issues found. Id.
The appellants subsequent January 28, 2014 email to Robinson states that Joe
[Masisak] was the approving official on the second timecard. Id. I do not find
preponderant evidence that Masisak was yet aware of the possible conflict of
 16

interest of his involvement, and I find no impropriety on his part in attempting to

resolve the timekeeping irregularity. Second, even if the appellants January 28,
2014 email to Robinson were a protected disclosure, there is no evidence that
Masisak, Schloendorn, or anyone else ever learned of the email, and as such, it
was not shown to be a contributing factor to the agencys actions. Thus, the
protected disclosure here is limited to the appellants reports of time and
attendance irregularities.

c. Activity 3 (Inspector General)

Third, the appellant undisputedly provided testimony to the Inspector
General on May 14, 2014 in her office. HCD, Appellant; IAF2, Tab 15 at 79
(agency admission). Although the appellant testified as to the matters she
brought up during her interview, I find the contents of the interview are not
pertinent because she introduced no evidence that anybody ever learned of the
contents of her interview before the events of May 15, 2014. HCD, Appellant. I
find that her Inspector General testimony was plainly protected by 5 U.S.C.
2302(b)(9)(C). Importantly, the appellant testified, without dispute, that on
May 12 or 13, 2014, Schloendorn came to her office and told her words to the
effect of Theyre going to get us all for the perceived problems occurring at the
Phoenix office, and that the appellants response was to the effect of Theyre not
going to get me, after which she told Schloendorn that she had unspecified
documentation, opened a drawer so Schloendorn could see the existence of that
documentation, and informed Schloendorn that she was going to be talking to the
Inspector General in the near future. HCD, Appellant. Moreover, as explained
further below, I find corroborating evidence by several witnesses indicating that
Schloendorn was the driving force behind the May 15, 2014 search and securing
of the appellants office. HCD, Daughetee, Nemcek.
 17

2. The appellant established by preponderant evidence that her 2302(b)(8)

protected disclosures and (b)(9)(C) Inspector General activity were a
contributing factor in the agencys actions.
An employee may demonstrate that a (b)(8) disclosure or (b)(9)(C)
Inspector General activity was a contributing factor in a covered personnel action
through circumstantial evidence, such as the acting officials knowledge of the
disclosure and the timing of the personnel action. Nasuti v. Department of State,
120 M.S.P.R. 588, 7 (2014); 5 U.S.C. 1221(e)(1).
Importantly, an appellant may also show that a protected disclosure was a
contributing factor by proving that the official taking the action had constructive
knowledge of the protected disclosure, even if the official lacked actual
knowledge. Id. In Aquino v. Department of Homeland Security, 121 M.S.P.R.
35, (2014), the Board recognized that knowledge of disclosures can be imputed to
proposing and deciding officials under a cats paw theory. Aquino, 121 M.S.P.R.
35 at 21. In Aquino, the employees supervisor, after learning of his
disclosures, reported to upper-level management his supposed concerns about
the quality of the employees work performance, upon which the agency relied in
proposing and effectuating the employees removal. Id. The Board held that an
appellant can demonstrate that a prohibited animus toward a whistleblower was a
contributing factor in a personnel action by showing by preponderant evidence
that an individual with knowledge of the appellants protected disclosure
influenced the deciding official accused of taking the personnel action. Id. at
23. The Board ultimately held that the agency failed to show by clear and
convincing evidence that it would have removed the appellant in the absence of
his protected disclosure. Id. at 25-27.
The issue here is whether the appellant has established that her protected
activities were a contributing factor in the agencys detail of her and related
search of her office; if she establishes such contributing factor, then she
establishes her prima facie case of whistleblower reprisal.
 18

a. The appellants two protected disclosures were a contributing factor in

the agencys detail of her and related search of her office.
I find the appellants two protected disclosures, made on November 29,
2013 about the Student Loan Repayment Program, and on January 23, 2014 about
timekeeping irregularities, were a contributing factor in the agencys decision to
detail her from her CFO position from May 15, 2014 and search her office on the
same day. The factor I find connecting the disclosures to the agencys actions is
Schloendorns involvement in the detail and search.
Although it was Acting Medical Center Director Steve Young who made
the ultimate decision to detail the appellant, I find he did so because an
administrative investigation of the appellant was being planned and Schloendorn,
as well as Scherpf and others, advised him that a detail under the circumstances
was appropriate. IAF1, Tab 11 at 34; HCD, Scherpf. Young was not called by
either party as a witness. Likewise, although Network Director Susan Bowers
assembled the Administrative Investigation Board, and Bowers was not called by
either party as a witness, Scherpf testified without dispute that the primary
driving force behind the decision to open an investigation were anonymous
letters against the appellant that he received from Schloendorn, and that Veterans
Integration Service Network 18 (VISN 18) also received anonymous letters about
the appellant. IAF1, Tab 11 at 26-27; HCD, Scherpf. Scherpf testified that he
received the letters from Schloendorn within the previous two weeks of May
15, 2014, without providing further specification as to precisely when
Schloendorn gave him the documents. HCD, Scherpf.
At hearing, the agency asked Scherpf if the documents found from pages 99
through 107 of the appellants prehearing submissions were the four anonymous
letters he received, and he testified that they were. HCD, Scherpf (adducing
testimony about IAF2, Tab 15 at 99-107). The agency representative remarked at
hearing that page 105 appeared to be a duplicate of page 99, and after the
conclusion of the hearing, I ascertained that this section of pages contained an
 19

additional duplicate at pages 106 through 107, duplicating pages 100 through
101. Id. Also after the conclusion of the hearing, I ascertained that the agency
had previously submitted four similar but with one exception not identical
documents that it contended formed the basis of Bowers decision to convene the
Administrative Investigation Board. IAF1, Tab 11 at 4-5, 9-24. Only exhibit 3 of
the agencys original submissions, a May 8, 2014 anonymous letter about the
appellant, appeared to be identical to any of the four documents that the agency
reviewed with Scherpf at the Board hearing. Compare IAF1, Tab 11 at 19-21 to
IAF2 (agency prehearing submission), Tab 15 at 102-104 (appellant prehearing
submission, reviewed by Scherpf at hearing). However, I find that both sets of
documents in the agencys and the appellants prehearing submissions accuse
the appellant of one form of wrongdoing or another, and that the existence of
additional documents is consistent with the larger context of Scherpfs testimony
that (i) VISN-18 had also received some anonymous complaints about the
appellant and (ii) the agency had also received an allegation of a hostile work
environment from a member of the appellants staff. HCD, Scherpf; IAF1, Tab
11 at 23-24.
At bottom, I find that the appellants two disclosures were a contributing
factor in Youngs decision to detail the appellant and the agencys related
decision to search her office because the detail and related search were based, in
large part, on Schloendorns recommendations, while the underlying
administrative investigation was based, in large part, on anonymous letters that
Schloendorn provided the agency. Aquino, 121 M.S.P.R. 35 at 21-27.

b. The appellants Inspector General testimony was a contributing factor in

the agencys decision to search her office as part of the detail.
To be clear, I do not find the May 15, 2014 search of the appellants office
constitutes a significant change in working conditions under 5 U.S.C.
2302(a)(2)(A)(xii). However, because I find the agencys search was part and
 20

parcel of its detail, I explain my finding of contributing factor for this component
of the detail here. Cf. Carter v. Department of the Army, 62 M.S.P.R. 393, 408
(1994).
I find no connection between the appellants Inspector General testimony
and the agencys decision to detail her, but I do find a contributing factor
between that testimony and the agencys related decision to search her office.
First, I do not find that the appellants May 14, 2014 Inspector General
testimony was a contributing factor in the agencys May 15, 2014 decision to
detail her, because there is no evidence that anybody learned of that impending
activity until Schloendorn did so on May 12 or 13, 2014, per the appellants own
testimony, and the evidence does not preponderantly establish that any of
Schloendorns involvement in getting the appellant investigated and detailed
occurred after May 12 or 13, 2014. HCD, Appellant. Instead, the only evidence
on timing is that Scherpf received the anonymous letters from Schloendorn
sometime in the two weeks prior to May 15, 2014. HCD, Scherpf. Although that
leaves open the possibility that he received the letters after May 12 or 13, 2014, I
find it more likely that he or at least VISN 18 received at least some of the
letters prior to May 12 or 13, 2014. This finding is consistent with the agencys
documentary evidence indicating that VISN 18 received one of the anonymous
letters on April 13, 2014, another on May 2, 2014, and another on or after May 8,
2014. IAF1, Tab 11 at 4, 10-19.
Second, I do find that the appellants May 14, 2014 Inspector General
testimony along with her prior two disclosures were a contributing factor in
the agencys May 15, 2014 decision to search her office. In so finding, I
recognize that the evidence is not clear as to whether the appellant told
Schloendorn of the specific date that she was to testify, such that Schloendorn
would have known for certain that the testimony had already been taken by the
time she recommended detailing the appellant. However, that degree of
specificity is not necessary in light of the Boards holding in Special Counsel v.
 21

Nielson that retaliation for intent to exercise rights protected by 5 U.S.C.

2302(b)(9) is prohibited by the statute. Nielson, 71 M.S.P.R. 161, 179-80
(1996).
In finding a connection between the appellants May 14, 2014 testimony
and the agencys May 15, 2014 search of her office, I have considered the
following. First, the appellants testimony was unrebutted that after Schloendorn
expressed concern about the agency getting us all, the appellant said that the
agency would not get the appellant because she had evidence to protect her, and
the appellant showed Schloendorn exactly where that evidence was in her office
drawer. HCD, Appellant. Second, that testimony is consistent with Nemceks
July 3, 2014 written statement; Nemcek wrote:
Maria expressed a concern that Tonja had not turned in her keys and
that she still had access to her office and that she may remove, or
have someone else remove documents from her office. Maria began
to explain a prior event that occurred while she was in Ton[j]as
office with Tonja. During this event, Maria explained that Tonja had
informed Maria that she had documents in her filing cabinet as a way
to document things, Maria further explained that Tonja opened up
the filing cabinet to show her where these documents were. After
explaining this event, Maria restated her concern that Tonja may
remove, or have someone else remove documents from her office.
The conversation began to deviate from the discussion of documents
when someone in the office asked about whether or not the acting
supervisors (Ms. Debbie Simon and Ms. Kelli Hagen) had access to
the office in case they needed to access any documents or work
products. It was discussed that they should be able to access the
office to ensure that there was not a disruption of operations. Maria
reexpressed her concern that Tonja had not turned in her keys and
that she still had access to her office and that she may remove, or
have someone else, remove documents from her office. Maria
expressed her concern that Tonja could come in during the night or
over the weekend to remove documents from her office. Maria
specifically mentioned that Tonja may have her assistant, Roz,
remove things for her. After Maria mentioned for the third time her
concern that Tonja would remove, or have someone else remove
these documents, I suggested having the documents that she was
concerned about secured and removed from Tonjas office. Maria
 22

asked who should remove and secure the documents. Joe [Masisak],
Rod [Daughetee], and I all agreed that HRMS should not be involved
with the removal and securing of the documents. Maria then asked if
she should call Chief Scott Neibauer and ask him about removing
and securing the documents.
IAF1, Tab 11 at 54; HCD, Nemcek. Third, Nemcek prepared that statement at the
request of Schloendorn against her interest as an employee of Schloendorns at
the time and Schloendorn is not known to have ever refuted it. IAF1, Tab 11 at
52 (Nemceck wrote that Maria asked me to provide her with a report of
contact of everything that I remembered, because she did remember and that she
was fuzzy on the details). Fourth, Daughetee admitted that Schloendorn made at
least one remark that the appellant has a large quantity of files in her office,
although I found his description of the context of that remark to be somewhat
hard to believe. HCD, Daughetee. Daughetee testified that Schloendorn stated
that the appellant documents judiciously, but when he was asked what he
understood that to imply, he was not helpful. Id. Daughetee testified that he
perceived Schloendorn to simply be trying to make us aware, and stated words
to the effect of, I dont believe we acted on the comment, seemingly implying
that he perceived Schloendorn to want more than a mere transfer of files to the
acting officers so they could do their jobs. Id. However, when Daughetee was
asked why Schloendorn would need to make everybody aware of the
appellants documentation, he answered only, Youd have to ask Maria; it
wasnt my comment. Id.
Fifth, Detective Muellers documentation reported the following occurred
on May 15, 2014:
Daughetee related a complaint was alleged that Laney had kept files
on employees who had filed complaints against Laney and was
currently engaged in a Whistleblower reprisal issue currently
addressed by the VISN 18 staff.
Daughetee related he was tasked to have Laneys office area secured
and examined for files pertaining to her employees.
***
 23

I suggested Hagen, Simon and I examine the office with the

understanding that the scope of the search was for files for
employees.
IAF1, Tab 11 at 38. Based on the context of these remarks about files pertaining
to her employees, I find that Mueller was referring not to work product
necessary for the appellants replacements of Simon and Hagen to perform her
work, but to files that were specific in nature to individual employees and not
related to the appellants everyday job duties. I have considered Muellers
testimony to the contrary that the purpose of the office search was simply to look
for active work product to enable Simon and Hagen to ascertain their new
responsibilities. HCD, Mueller. Observing Mueller testify that his reports
references to files on employees and files for employees was simply a poor
word choice, I did not believe him especially because of his preceding written
statement that there was a concern that Laney had kept files on employees who
had filed complaints against Laney. Id.
Sixth, I have considered the testimony of both Daughetee and Detective
Mueller that Simon and Hagen expressed interest in searching the appellants
office and that it was actually Simon and Hagen that flagged the questionable
items they found. HCD, Daughetee, Mueller. Daughetee and Muellers
testimony was contrary to the thrust of Simon and Hagens testimony that (i)
although they wanted to know what was expected of them since that they were
quite suddenly thrown in to substitute for the appellant in her absence; and (ii)
although they recognized the value of seeing what files were in the appellants
office to accomplish that; (iii) they nonetheless did not propose the search, did
not actively flag questionable items, and they conducted the search only under
Muellers guidance and suggestion as to how they conduct a search. HCD,
Simon, Hagen. I find it improbable that Simon and Hagen would, upon
unexpected notice that they were substituting for their supervisor, actively
propose and pursue an aggressive search of their supervisors office, and take the
 24

initiative to actively point out items that could be deemed questionable to the
supervising or observing detective. Based on the inherent improbability of that
scenario, as well as the demeanor of all four witnesses, I did not believe
Muellers and Daughetees suggestions that Simon and Hagen took the lead on
the search. Viewing the totality of the evidence, I find that Schloendorn was the
driving force behind getting others to search the appellants office, and that
Daughetee and Mueller unwittingly became the instruments of Schloendorns
desire to retaliate against the appellant. Because Schloendorn knew that the
appellant was planning to, or had already, spoken with the Inspector General at
the time she instigated the search of the appellants office, I find the appellants
Inspector General activity was a contributing factor to the agencys ultimate
decision to search her office.

D. The agency has failed to establish by clear and convincing evidence that it
would have detailed the appellant and conducted the related search of her
office absent her protected (b)(8) disclosures and (b)(9)(C) activity.
In determining whether an agency has shown by clear and convincing
evidence that it would have taken the same personnel action in the absence of
whistleblowing, the Board will consider the following factors: (1) the strength of
the agencys 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.
Chambers v. Department of the Interior, 116 M.S.P.R. 17 at 29 (2011); Carr v.
Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999); Whitmore,
680 F.3d at 1365.
I accept that Youngs May 15, 2014 decision to detail the appellant was
because the agency was going to be investigating the appellant for misconduct of
a very serious nature, and keeping her in her office while the agency interviewed
 25

members of her staff would be inappropriate. IAF1, Tab 11 at 34. I find

Youngs reason to be an objectively strong reason in light of the allegations with
which the Administrative Investigation Board was going to be dealing. IAF1,
Tab 11 at 26; IAF2, Tab 15 at 372. I find no indication that Young or Scherpf
were aware of the appellants protected disclosures or activity, and Scherpf
denied having any indication that Schloendorn was acting on any bad motive in
bringing the anonymous letters to him. HCD, Scherpf. Additionally, Scherpf
testified generally that the agency has detailed other employees who were under
investigation, although he acknowledged that the decision to detail is not
automatic but is done on a case-by-case basis. Id. I find these circumstances
lend some weight to Carr factor 1, strength of the agencys reasons, and Carr
factor 3, evidence of others who did not blow the whistle but who were subjected
to the same action. Nonetheless, I do not find that the agency ultimately
presented a specific example for Carr factor 3, i.e., any non-whistleblower who
was detailed and had her office searched.
Notwithstanding my above findings under Carr, I find that most of the
agencys evidence pertaining to Carr factor 1 is quite weak, and that the evidence
pertaining to Carr factor 2 existence of motive to retaliate is quite strong and
outweighs Carr factor 1. Although I believe that Young and Scherpf acted
innocently in detailing the appellant, I find the cats paw principles set forth in
Aquino make their innocence quite irrelevant to the agencys liability in this case.
Aquino, 121 M.S.P.R. 35 at 21. I find the appellants detail was the result of
the agencys investigation, which was the result of the allegations against the
appellant, which primarily came from Schloendorn. I have considered the fact
that the appellants November 29, 2013 and January 23, 2014 disclosures
implicated Schloendorns office, as well as Pokornys testimony that Schloendorn
had told her that she was really upset about the issue related to the questionable
timecards. HCD, Pokorny. I have considered Robinsons testimony that
Schloendorn definitely had problems with the appellants identification of
 26

problems in HR and that the problems produced tension between Schloendorn and
the appellant. HCD, Robinson. I have considered Scherpfs recollection that the
administrative investigation into the appellant was based primarily on anonymous
letters he received from Schloendorn. HCD, Scherpf. I have considered
Pokornys testimony that Schloendorn actually told her on earlier occasions that
Schloendorn had submitted anonymous letters at various points about various
individuals and, specific to the appellant, had gotten another section chief to
submit an anonymous letter that accused the appellant of having sex in her office.
I have considered the evidence that Schloendorn had previously conducted her
own fact findings into some of the same supposed allegations, and yet she failed
to disclose that to the Administrative Investigation Board until late into its
process. IAF2, Tab 15 at 373, 375.
I have also considered the somewhat odd fact that, according to Robinson,
when Schloendorn had previously conducted fact findings into the appellant, she
never substantiated an allegation against the appellant. HCD, Robinson. That
fact, viewed in isolation, might tend to show that Schloendorn bore the appellant
no malice. However, I find far more significant the fact that Schloendorn brought
these same matters back to officials higher in the agencys chain of command
without ever disclosing the quite significant fact that she already had previously
investigated the allegations and declared them unsubstantiated. IAF2, Tab 15 at
373, 375 (noting need to interview Schloendorn three times given the numerous
times her name was brought up in the sworn testimonies, where she was the
source of pertinent information); HCD, Robinson (noting that Schloendorn did
not substantiate the claims she investigated).
I have considered the evidence of Schloendorns willingness to retaliate
against employees for other forms of protected activity. First, Pokorny testified
that when she first arrived at Schloendorns office and became her subordinate,
Schloendorn told Pokorny that she wanted her to put one of her employees on a
performance improvement plan because Schloendorn wanted that employee
 27

gone because the employee had filed multiple equal employment opportunity
(EEO) complaints against Schloendorn. Second, by the agencys admission, On
January 21, 2015, the EEOC issued a decision in which Maria Schloendorn was
found to have committed reprisal based on an employees protected activity.
IAF2, Tab 15 at 385.
I have considered the fact that it is somewhat convenient for the appellant
that Pokorny was able to testify that Schloendorn admitted to not only fabricating
evidence about the appellant and others, but also to retaliating against another
employee for EEO activity. However, I find the evidence of Schloendorns
fabrications is quite consistent with the findings of the Administrative
Investigation Board as well as the EEOC, and under these circumstances, I
believed Pokornys testimony.
I have considered the oddity of both Detective Muellers and Daughetees
testimonies to the extent they attributed (i) the decision to search the appellants
office to Simon and Hagen, and (ii) the discovery of questionable materials to
Simon and Hagens active flagging of them. I found Mueller and Daughetees
testimony to be so contrary to what was most plausible to have happened and to
what Muellers own July 2014 report indicated about the search for employee
files, that I found it difficult to accept Mueller and Daughetees version of events.
In sum, I find far too many deficiencies in the agencys limited evidence to
permit me to conclude that the evidence clearly and convincingly shows that the
agency would have taken the same actions even in the absence of the appellants
whistleblowing and IG activity. Thus, I find the appellant has proven her claims
that her May 14, 2014 detail and related search of her office were reprisal for her
Section 2302(b)(8) protected disclosures and (b)(9)(C) Inspector General activity.

DECISION
I find the agencys detail of the appellant out of her CFO position and
related search of her office was reprisal in violation of 5 U.S.C. 2302(b)(8)
 28

and (b)(9)(C). In accordance with the below parameters, the appellant may file a
motion for initiation of an addendum proceeding on damages, pursuant to the
below provisions. The full measure of appropriate corrective action will be
determined in the addendum proceeding, if instituted by the appellant.

FOR THE BOARD: /S/_____________________________

David S. Brooks
Administrative Judge

NOTICE TO PARTIES CONCERNING SETTLEMENT

The date that this initial decision becomes final, which is set forth below, is
the last day that the parties may file a settlement agreement, but the
administrative judge may vacate the initial decision in order to accept such an
agreement into the record after that date. See 5 C.F.R. 1201.112(a)(4).

NOTICE TO APPELLANT
This initial decision will become final on November 18, 2015, unless a
petition for review is filed by that date. This is an important date because it is
usually the last day on which you can file a petition for review with the Board.
However, if you prove that you received this initial decision more than 5 days
after the date of issuance, you may file a petition for review within 30 days after
the date you actually receive the initial decision. If you are represented, the 30-
day period begins to run upon either your receipt of the initial decision or its
receipt by your representative, whichever comes first. You must establish the
date on which you or your representative received it. The date on which the
initial decision becomes final also controls when you can file a petition for
review with the Court of Appeals. The paragraphs that follow tell you how and
when to file with the Board or the federal court. These instructions are important
 29

because if you wish to file a petition, you must file it within the proper time
period.

BOARD REVIEW
You may request Board review of this initial decision by filing a petition
for review.
If the other party has already filed a timely petition for review, you may
file a cross petition for review. Your petition or cross petition for review must
state your objections to the initial decision, supported by references to applicable
laws, regulations, and the record. You must file it with:
The Clerk of the Board
Merit Systems Protection Board
1615 M Street, NW.
Washington, DC 20419

A petition or cross petition for review may be filed by mail, facsimile (fax),
personal or commercial delivery, or electronic filing. A petition submitted by
electronic filing must comply with the requirements of 5 C.F.R. 1201.14, and
may only be accomplished at the Board's e-Appeal website
(https://e-appeal.mspb.gov).

Criteria for Granting a Petition or Cross Petition for Review

Pursuant to 5 C.F.R. 1201.115, the Board normally will consider only

issues raised in a timely filed petition or cross petition for review. Situations in
which the Board may grant a petition or cross petition for review include, but are
not limited to, a showing that:
(a) The initial decision contains erroneous findings of material fact. (1)
Any alleged factual error must be material, meaning of sufficient weight to
warrant an outcome different from that of the initial decision. (2) A petitioner
who alleges that the judge made erroneous findings of material fact must explain
why the challenged factual determination is incorrect and identify specific
evidence in the record that demonstrates the error. In reviewing a claim of an
 30

erroneous finding of fact, the Board will give deference to an administrative

judges credibility determinations when they are based, explicitly or implicitly,
on the observation of the demeanor of witnesses testifying at a hearing.
(b) The initial decision is based on an erroneous interpretation of statute or
regulation or the erroneous application of the law to the facts of the case. The
petitioner must explain how the error affected the outcome of the case.
(c) The judges rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case.
(d) New and material evidence or legal argument is available that, despite
the petitioners due diligence, was not available when the record closed. To
constitute new evidence, the information contained in the documents, not just the
documents themselves, must have been unavailable despite due diligence when
the record closed.
As stated in 5 C.F.R. 1201.114(h), a petition for review, a cross petition
for review, or a response to a petition for review, whether computer generated,
typed, or handwritten, is limited to 30 pages or 7500 words, whichever is less. A
reply to a response to a petition for review is limited to 15 pages or 3750 words,
whichever is less. Computer generated and typed pleadings must use no less than
12 point typeface and 1-inch margins and must be double spaced and only use one
side of a page. The length limitation is exclusive of any table of contents, table of
authorities, attachments, and certificate of service. A request for leave to file a
pleading that exceeds the limitations prescribed in this paragraph must be
received by the Clerk of the Board at least 3 days before the filing deadline. Such
requests must give the reasons for a waiver as well as the desired length of the
pleading and are granted only in exceptional circumstances. The page and word
limits set forth above are maximum limits. Parties are not expected or required to
submit pleadings of the maximum length. Typically, a well-written petition for
review is between 5 and 10 pages long.
 31

If you file a petition or cross petition for review, the Board will obtain the
record in your case from the administrative judge and you should not submit
anything to the Board that is already part of the record. A petition for review
must be filed with the Clerk of the Board no later than the date this initial
decision becomes final, or if this initial decision is received by you or your
representative more than 5 days after the date of issuance, 30 days after the date
you or your representative actually received the initial decision, whichever was
first. If you claim that you and your representative both received this decision
more than 5 days after its issuance, you have the burden to prove to the Board the
earlier date of receipt. You must also show that any delay in receiving the initial
decision was not due to the deliberate evasion of receipt. You may meet your
burden by filing evidence and argument, sworn or under penalty of perjury (see 5
C.F.R. Part 1201, Appendix 4) to support your claim. The date of filing by mail
is determined by the postmark date. The date of filing by fax or by electronic
filing is the date of submission. The date of filing by personal delivery is the
date on which the Board receives the document. The date of filing by commercial
delivery is the date the document was delivered to the commercial delivery
service. Your petition may be rejected and returned to you if you fail to provide
a statement of how you served your petition on the other party. See 5 C.F.R.
1201.4(j). If the petition is filed electronically, the online process itself will
serve the petition on other e-filers. See 5 C.F.R. 1201.14(j)(1).
A cross petition for review must be filed within 25 days after the date of
service of the petition for review.

DAMAGES
The Board may, in a case in which it orders corrective action under 5
U.S.C. 1221 as a result of a prohibited personnel practice described in 5 U.S.C.
2302(b)(8) or 2302(b)(9)(A)(i), (B), (C), or (D), award reasonable and
foreseeable consequential damages, and compensatory damages (including
 32

interest, reasonable expert witness fees, and costs). 5 U.S.C.

1221(g)(1)(A)(ii). See, e.g., Porter v. Department of the Treasury, 80 M.S.P.R.
606 (1999); Walton v. Department of Agriculture, 78 M.S.P.R. 401 (1998).
Consequential damages may be awarded for pecuniary losses to reimburse
the appellant for specific losses and expenses resulting from the unjustified
retaliatory conduct. They may include the payment of back pay and related
benefits, medical costs incurred, travel expenses, and any other reasonable and
foreseeable pecuniary losses. Consequential damage awards do not include
nonpecuniary injuries such as emotional or mental distress. All compensable
losses must be directly or proximately caused by the retaliatory agency action at
issue.
Consequential damage awards for pecuniary losses are to reimburse a
victim for actual monetary harm and are limited to the losses proven to have been
caused by the retaliatory action. An appellant must submit proof of pecuniary
damages which are quantifiable and usually can be objectively documented.
Compensatory damages may be awarded for all pecuniary losses and some
nonpecuniary losses. All compensable losses must be directly or proximately
caused by the retaliatory agency action at issue.
Nonpecuniary losses are not subject to precise quantification and include,
but are not necessarily limited to, emotional pain, suffering, inconvenience,
mental anguish, injury to character and reputation, and loss of enjoyment of life.
There are no formulas for determining the amount of nonpecuniary losses, but
such awards should reflect the extent to which the retaliatory act caused the harm
in relation to the extent other factors might also have caused the harm. An award
should also take into consideration the nature, severity, and duration of the harm.
If pecuniary or nonpecuniary damages are claimed, appellant must submit
proof of them. Pecuniary damages are quantifiable and usually can be objectively
documented. Nonpecuniary damages may be established by documentary
evidence, but also by statements from appellant and others including family
 33

members, friends, health care providers, counselors, or clergy. Per 5 C.F.R.

1201.204(e)(1), a motion for initiation of an addendum proceeding to decide a
request for consequential, liquidated, or compensatory damages must be filed as
soon as possible after a final decision of the Board but no later than 60 days after
the date on which a decision becomes final. Where the initial decision in the
proceeding on the merits was issued by a judge in a MSPB regional or field
office, the motion must be filed with the regional or field office that issued the
initial decision. Where the decision in the proceeding on the merits was an initial
decision issued by a judge at the Board's headquarters or where the only decision
was a final decision issued by the Board, the motion must be filed with the Clerk
of the Board. Any such motion must be prepared in accordance with the
provisions of 5 C.F.R. Part 1201, Subpart H, and applicable case law.

NOTICE TO AGENCY/INTERVENOR
The agency or intervenor may file a petition for review of this initial
decision in accordance with the Board's regulations.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit.
The court must receive your request for review no later than 60 calendar
days after the date this initial decision becomes final. See 5 U.S.C.
7703(b)(1)(A) (as rev. eff. Dec. 27, 2012). If you choose to file, be very
careful to file on time. The court has held that normally it does not have the
authority to waive this statutory deadline and that filings that do not comply with
the deadline must be dismissed. See Pinat v. Office of Personnel Management,
931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of this decision concerning your claims of
prohibited personnel practices under 5 U.S.C. 2302(b)(8), (b)(9)(A)(i),
 34

(b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge the Boards
disposition of any other claims of prohibited personnel practices, you may request
review of this decision only after it becomes final by filing in the United States
Court of Appeals for the Federal Circuit or any court of appeals of competent
jurisdiction. The court of appeals must receive your petition for review within 60
days after the date on which this decision becomes final. See 5 U.S.C.
7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose to file, be very careful
to file on time. You may choose to request review of the Boards decision in the
United States Court of Appeals for the Federal Circuit or any other court of
appeals of competent jurisdiction, but not both. Once you choose to seek review
in one court of appeals, you may be precluded from seeking review in any other
court.
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information about the United States Court of Appeals for the Federal
Circuit is available at the court's website, www.cafc.uscourts.gov. Of particular
relevance is the court's "Guide for Pro Se Petitioners and Appellants," which is
contained within the court's Rules of Practice, and Forms 5, 6, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for your court
appeal, that is, representation at no cost to you, the Federal Circuit Bar
Association may be able to assist you in finding an attorney. To find out more,
please click on this link or paste it into the address bar on your browser:
 35

http://www.fedcirbar.org/olc/pub/LVFC/cpages/misc/govt_bono.jsp

The Merit Systems Protection Board neither endorses the services provided
by any attorney nor warrants that any attorney will accept representation in a
given case.