Lissy Pentzke v. Department of the Treasury

UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD

LISSY PENTZKE, DOCKET NUMBER

Appellant, AT-0432-18-0439-B-1 v.

DEPARTMENT OF THE TREASURY, DATE: September 3, 2026

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1 Lissy Pentzke , Miami, Florida, pro se.

Lisa Pyle , Esquire, Robert H. Atkins , Esquire, and Lovelyn Adejuwon , Washington, D.C., for the agency.

BEFORE James J. Woodruff II, Chairman Henry J. Kerner, Vice Chairman FINAL ORDER

The appellant has filed a petition for review of the remand initial decision, which sustained her removal pursuant to the procedures of 5 U.S.C. chapter 43 and denied her affirmative defense of whistleblower reprisal. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; 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 administrative judge’s 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; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

On review, the appellant asserts that the administrative judge erred, in the remand initial decision, in finding that the agency demonstrated that her performance was unacceptable prior to the implementation of the performance improvement plan (PIP) and that the appellant did not prove that her whistleblowing activity under 5 U.S.C. § 2302(b)(9)(C) was a contributing factor in her removal. Pentzke v. Department of the Treasury, MSPB Docket No. AT-0432-18-0439-B-1, Remand Petition for Review (RPFR) File, Tab 1 at 6-34. She also asserts that the administrative judge erred in not considering several additional instances of protected whistleblowing. RPFR File, Tab 1 at 6-12, Tab 4 at 5-10.

We first discuss the merits of the agency’s chapter 43 action. We agree with the administrative judge that the agency proved that the appellant’s performance was unacceptable prior to the implementation of the PIP. See Santos v. National Aeronautics and Space Administration, 990 F.3d 1355, 1363 (Fed. Cir. 2021). In the remand initial decision, the administrative judge described the appellant’s performance history between 2013 and 2017. Pentzke v. Department of the Treasury, MSPB Docket No. AT-0432-18-0439-B-1, Remand File (RF), Tab 12, Remand Initial Decision (RID) at 2-7. She noted that, in fiscal year (FY) 2013, the appellant was denied a within-grade increase and, in June 2016, the agency issued the appellant a performance counseling memorandum. RID at 3. We question the probative value of the appellant’s performance 4 years prior to the implementation of the PIP, especially considering that the appellant had periods of successful performance after 2013. Accordingly, we do not consider the appellant’s performance in FY 2013. 2 We also do not consider the June 2016 counseling because, according to the appellant, she successfully grieved her FY 2016 mid-year performance rating and she subsequently received an overall rating of “meets” in each critical element in her annual appraisal for FY 2016. Pentzke v. Department of the Treasury, MSPB Docket No. AT-0432- 18-0439-I-1, Initial Appeal File (IAF), Tab 10 at 6-7, Tab 30 at 27; RPFR File, Tab 1 at 29.

Notwithstanding, we find that the agency proved by substantial evidence that the appellant’s performance between November 1, 2016, and June 1, 2017, when she was placed on a PIP, was unacceptable. IAF, Tab 10 at 237-40. The PIP letter described deficiencies in the appellant’s work product during this time period. Id. Although the appellant asserts that the deficiencies noted in the PIP letter concerned work that was completed in FY 2016, during which time she received a successful performance evaluation, RPFR File, Tab 1 at 29-30, the PIP letter explains that deficiencies were discovered after November 1, 2016. Id. For example, the appellant’s investigation of a small winery was reassigned to another investigator in November 2016, and the agency asserts that the follow-up investigation revealed numerous errors in the appellant’s work. Id. at 238. Another deficiency noted in the PIP letter involves the appellant’s failure to timely amend a report between February and April 2017. Id. at 239. The appellant has not specifically disputed these examples of unacceptable performance on review, and we find that they are sufficient to meet the agency’s burden of proof.

We next address the appellant’s affirmative defense of whistleblower reprisal. To the extent the appellant attempts to relitigate whether her disclosures concerning wholesale permits and a cease-and-desist letter are protected under 5 U.S.C. § 2302(b)(8), RPFR File, Tab 4 at 5-10, the Board’s March 14, 2024 Remand Order affirmed the administrative judge’s finding that the appellant did not prove that she reasonably believed she was disclosing a violation of law, rule, or regulation. Pentzke v. Department of the Treasury, MSPB Docket No. AT-0432-18-0439-I-1, Remand Order, ¶¶ 7-10 (Mar. 14, 2024); RPFR File, Tab 1. To the extent the appellant asserts that the administrative judge erred by not considering additional purported disclosures and union activity and by not considering that the agency perceived the appellant as a whistleblower, RPFR File, Tab 1 at 6-12, 18, Tab 4 at 5-10 , we find that the appellant did not timely raise these allegations in response to the administrative judge’s order instructing her to identify her affirmative defenses, IAF, Tab 13 at 2, Tab 15 at 6-7. We therefore do not consider them. See Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (explaining that the Board generally will not consider an argument raised for the first time in a petition for review absent a showing that it is based on new and material evidence not previously available despite the party’s due diligence). 3

As set forth in the Board’s March 14, 2024 Remand Order, the only protected whistleblowing to be considered on remand was the appellant’s May 2017 cooperation with or disclosures of information to her agency’s Office of Inspector General (OIG), which is protected under 5 U.S.C. § 2302(b)(9)(C). Remand Order, ¶ 12. We agree with the administrative judge’s finding, in the remand initial decision, that the appellant did not prove that her protected activity was a contributing factor in her removal. RID at 7-10. There is nothing in the record to show that her supervisor knew of her OIG activity at the time she implemented the PIP. 4 IAF, Tab 26 at 16. On review, the appellant does not assert that her supervisor knew of her OIG activity. Rather, she reasserts, as she did before the administrative judge, that the subject of her OIG complaint concerned the same topic as her purported disclosures, which she asserts she raised to numerous individuals dating back to 2015 and, therefore, “any potential disclosures” occurring before the PIP should be considered. RPFR File, Tab 1 at 6, 13. We disagree. That the agency may have had knowledge of the appellant’s disclosures, which the Board has found are not protected under 5 U.S.C. § 2302(b)(8), does not relieve the appellant of her obligation to prove contributing factor regarding her separate protected activity, under 5 U.S.C. § 2302(b)(9). See Fisher v. Department of the Interior, 2023 MSPB 11, ¶ 9 (requiring that an appellant prove a contributing factor regarding protected activity under 5 U.S.C. § 2302(b)(9) regardless of whether the agency had knowledge of disclosures purportedly made under 5 U.S.C. § 2302(b)(8)).

In any event, the lack of agency knowledge about the appellant’s OIG activity was not dispositive to the administrative judge’s finding that the appellant did not prove a contributing factor. 5 RID at 7-10. Because the appellant did not meet the knowledge/timing test, the administrative judge correctly considered whether the appellant proved a contributing factor by analyzing the factors enumerated in Dorney v. Department of the Army, 117 M.S.P.R. 480, ¶ 14 (2012). RID at 8-9. We agree with the administrative judge’s analysis of the Dorney factors. We have further considered whether the timing of the agency’s discovery of deficiencies in the appellant’s work, as discussed above, demonstrates retaliatory animus. Because these events predate the appellant’s OIG complaint, however, we find that it is not relevant to the issue of contributing factor. See El v. Department of Commerce, 123 M.S.P.R. 76, ¶ 10 (2015) (stating that a protected activity cannot contribute to a personnel action which predates it), aff’d per curiam, 663 F. App’x 921 (Fed. Cir. 2016). We have considered the appellant’s remaining assertions on review and find that they do not provide a basis to disturb the remand initial decision. 6

Because we find that the appellant has not proved that her protected activity was a contributing factor in her removal, we need not revisit the administrative judge’s alternative finding that the agency proved by clear and convincing evidence that it would have taken the same personnel action in the absence of any protected whistleblowing. RID at 10-13. Based on the foregoing, we deny the appellant’s petition for review and affirm the remand initial decision.

NOTICE OF APPEAL RIGHTS 7

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address:

U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439

Additional information about the U.S. 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, 10, and 11.

If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is:

Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to:

Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. 8 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address:

U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439

Additional information about the U.S. 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, 10, and 11.

If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.

Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

FOR THE BOARD: ______________________________

Gina K. Grippando Clerk of the Board

Washington, D.C.