Iris De Hoyos v. Department of Justice

UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD

IRIS DE HOYOS, DOCKET NUMBER

Appellant, PH-0752-25-0101-I-1 v.

DEPARTMENT OF JUSTICE, DATE: September 17, 2026

Agency.

THIS ORDER IS NONPRECEDENTIAL 1 Iris De Hoyos , Berlin, Connecticut, pro se.

Luke Archer and Julia Lynn Martin , Springfield, Virginia, for the agency.

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

The appellant has filed a petition for review of the initial decision, which dismissed her appeal for lack of jurisdiction. For the reasons discussed below, we GRANT the appellant’s petition for review, AFFIRM the initial decision’s findings regarding the lack of chapter 75 jurisdiction, REVERSE the initial decision’s findings regarding the lack of Board jurisdiction over the appellant’s allegations of reprisal for whistleblowing, and REMAND the case to the Northeastern Regional Office for further adjudication in accordance with this Remand Order. 2

BACKGROUND

On December 18, 2022, the agency appointed the appellant to an excepted service position as a GS-11 Intelligence Research Specialist with the Drug Enforcement Administration. Initial Appeal File (IAF), Tab 5 at 20-23. The appointment was subject to the completion of a 2-year trial period. Id. On or about July 4, 2023, the agency assigned the appellant to the New Haven, Connecticut District Office. IAF, Tab 3 at 9, Tab 6 at 51. On October 23, 2024, the appellant submitted to the Office of Special Counsel (OSC) a form entitled “Report of Government Wrongdoing (Disclosure),” in which she alleged a violation of law, rule, or regulation; abuse of authority; and retaliation by the agency. IAF, Tab 16 at 16-23. On October 29, 2024, she submitted to OSC a form entitled “Complaint of Prohibited Personnel Practice,” alleging, among other things, that the agency failed to train her and pay her for time she had worked. Id. at 24-31. On October 30, 2024, the agency terminated the appellant from her position. IAF, Tab 5 at 13, 14-18, Tab 18 at 6.

The appellant filed the instant appeal with the Board on November 15, 2024. IAF, Tab 1. In her Board appeal form, she indicated she was challenging personnel actions including a termination during her probationary period, a denial of a within-grade increase, 3 and other actions constituting harassment, discrimination, and retaliation. Id. at 9. The administrative judge issued orders advising the appellant of what she must allege to establish Board jurisdiction as an employee with a statutory right to appeal under 5 U.S.C. chapter 75. IAF, Tabs 2, 10. Following the parties’ responses, IAF, Tabs 5, 11-14, the administrative judge issued an additional jurisdictional order, explaining the appellant’s burden to establish jurisdiction over an individual right of action (IRA) appeal, IAF, Tab 15. The parties responded, IAF, Tabs 16-18, and the appellant included with her response a letter from OSC’s Disclosure Unit, dated February 24, 2025, which indicated OSC had closed her complaint of agency wrongdoing but forwarded her complaints of prohibited personnel practices including retaliation to its Investigation and Prosecution Division, IAF, Tab 18 at 15.

On February 27, 2025, without holding the requested hearing, the administrative judge issued an initial decision, which dismissed the appeal for lack of jurisdiction. IAF, Tab 19, Initial Decision (ID). The administrative judge found the appellant did not raise nonfrivolous allegations concerning the Board’s jurisdiction under 5 U.S.C. chapter 75. ID at 5-6. She further found the appellant had not established the Board’s IRA jurisdiction because the appellant did not allege in her OSC complaint that the agency terminated her in retaliation for whistleblowing. ID at 6.

The appellant has filed a timely petition for review. Petition for Review (PFR) File, Tab 1. The agency has responded to the appellant’s petition for review, PFR File, Tab 3, and the appellant has replied to the agency’s response, PFR File, Tab 5.

ANALYSIS

On review, the appellant emphasizes she is challenging several of the agency’s actions, including its denial of her pay grade increase and the denial of her reasonable accommodation request, in addition to her termination. PFR File, Tab 1 at 8. She reraises claims of harassment and retaliation by her supervisors, and she argues she exhausted the issue of her termination before OSC. Id. at 5-9. She contends the administrative judge did not thoroughly review her pleadings. Id. at 4, 7. As further detailed below, we find the appellant’s pleadings were sufficient to establish the Board’s IRA jurisdiction over one of her claims, and, therefore, we remand this appeal for further adjudication. 4 The administrative judge properly found the Board lacks jurisdiction under chapter 75.

The Board’s jurisdiction is limited by law, rule, or regulation, and therefore, it does not have jurisdiction over all matters alleged to be unfair or incorrect. Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). Under 5 U.S.C. §§ 7512 and 7513(d), a person who meets the definition of “employee” in 5 U.S.C. § 7511(a)(1) generally may challenge certain adverse actions by the agency by filing an appeal with the Board. An “employee” is defined, in 5 U.S.C. § 7511(a)(1)(C), as including the following: an individual in the excepted service (other than a preference eligible)—

(i) who is not serving a probationary or trial period under an initial appointment pending conversion to the competitive service; or (ii) who has completed 2 years of current continuous service in the same or similar positions in an Executive agency under other than a temporary appointment limited to 2 years or less.

The documentary evidence suggests the appellant was an excepted service employee (non-preference eligible) serving under a trial period at the time of her termination and she had no history of prior Federal service. IAF, Tab 5 at 13, 20-23. The appellant did not raise any allegations to the contrary. Thus, the administrative judge correctly found the appellant did not raise nonfrivolous allegations that she met the definition of an “employee” with statutory appeal rights under chapter 75. ID at 5-6; see 5 U.S.C. §§ 7511(a)(1)(c).

Remand is appropriate for further adjudication of the appellant’s appeal as an IRA appeal.

Even though the Board lacks jurisdiction to review the agency’s actions under chapter 75, the appellant may request review of certain agency actions in an IRA appeal under the Whistleblower Protection Act, as amended. 5 U.S.C. § 1221. The Board has jurisdiction over an IRA appeal if the appellant has exhausted her administrative remedies before OSC and makes nonfrivolous allegations that (1) she made at least one protected disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and (2) the disclosure or protected activity was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a). Edwards v. Department of Labor, 2022 MSPB 9, ¶ 8, aff’d, No. 22-1967 (Fed. Cir. Jul. 7, 2023); Skarada v. Department of Veterans Affairs, 2022 MSPB 17, ¶ 13.

The appellant exhausted her administrative remedies before OSC with respect to several alleged personnel actions and protected disclosures.

An appellant in an IRA appeal must prove by preponderant evidence that she exhausted her administrative remedies by seeking corrective action from OSC before seeking corrective action from the Board. 5 U.S.C. § 1214(a)(3); Chambers v. Department of Homeland Security, 2022 MSPB 8, ¶¶ 5, 11-12; 5 C.F.R. § 1201.57(c)(1). This requirement of administrative exhaustion entails both procedural and substantive requirements. Chambers, 2022 MSPB 8, ¶ 5. We find the procedural requirements of exhaustion are satisfied, as 120 days have passed since the appellant first sought corrective action. 5 U.S.C. § 1214(a)(3); Simnitt v. Department of Veterans Affairs, 113 M.S.P.R. 313, ¶ 8; 5 C.F.R. § 1209.5(a); IAF, Tab 16 at 16-31, Tab 18 at 15. We also find the substantive requirements are met for the reasons discussed below.

The substantive requirements of exhaustion are met when an appellant has provided OSC with sufficient basis to pursue an investigation. Chambers, 2022 MSPB 8, ¶ 10. As the administrative judge correctly noted, the Board’s jurisdiction over an IRA appeal is limited to those issues previously raised with OSC. Id. Here, the administrative judge found the appellant did not prove exhaustion because she did not allege in her OSC complaint that the agency terminated her in retaliation for alleged whistleblowing. ID at 5; IAF, Tabs 16-17.

First, the administrative judge erred by not considering whether the appellant established the Board’s IRA jurisdiction over her other claims. As the appellant highlights on review, she challenges several allegedly retaliatory actions by the agency in her Board appeal, including, but not limited to, the agency’s decision in June or July 2024 to deny her a grade increase. IAF, Tab 1 at 9, Tab 6 at 5-16, Tab 11 at 5-12, Tab 16 at 4-14; PFR File, Tab 1 at 8. We note that a decision concerning pay and benefits is expressly enumerated as a personnel action within the Board’s IRA jurisdiction under 5 U.S.C. § 2302(a)(2)(A)(ix). Furthermore, other agency actions may constitute a personnel action to the extent the action represents a significant change in an employee’s duties, responsibilities, and working conditions. Skarada, 2022 MSPB 17, ¶¶ 14-18.

Reviewing the appellant’s October 23, 2024 OSC complaint, we find the appellant exhausted before OSC a denial of a grade increase as well as other agency actions she alleges were retaliatory. IAF, Tab 16 at 19-20, Tab 18 at 15; see Chambers, 2022 MSPB 8, ¶¶ 10-11. We recognize the appellant informed OSC of these claims using OSC’s form entitled, “Report of Government Wrongdoing (Disclosure),” wherein the first page of this form notified the appellant that retaliation claims should be filed in a form entitled, “Complaint of Prohibited of Prohibited Personnel Practice or Other Prohibited Activity.” IAF, Tab 16 at 16 -17; see also 5 C.F.R. § 1800.1 et seq (informing individuals of their filing options with OSC). Although the appellant later submitted said form, she did not complete all fields in the form, and she did not include retaliation as one of the alleged prohibited personnel practices (PPPs). IAF, Tab 16 at 24-31. Nevertheless, in a letter dated February 24, 2025, OSC’s Disclosure Unit informed the appellant it had forwarded her complaints of PPPs to its Investigation and Prosecution Division, and it expressly identified retaliation as one of her allegations of PPPs. IAF, Tab 18 at 15. Thus, we find the appellant provided OSC with a sufficient basis to pursue an investigation and exhausted alleged retaliatory personnel actions before OSC. Cf. Clemente v. Department of Homeland Security, 101 M.S.P.R. 519, ¶¶ 7-13 (2006) (finding the appellant did not exhaust his administrative remedies with OSC when he only completed a disclosure form and did not show that this form constituted a request for corrective action).

Moreover, we reverse the administrative judge’s finding that the appellant did not exhaust the issue of her alleged retaliatory termination. An appellant may demonstrate exhaustion through either her initial OSC complaint or correspondence with OSC. Chambers, 2022 MSPB 8, ¶ 11. In the alternative, exhaustion may be proved through other sufficiently reliable evidence, such as an affidavit or declaration attesting the appellant raised with OSC the substance of the facts in the MSPB appeal. Id.; see also Johns v. Department of Veterans Affairs, 95 M.S.P.R. 106, ¶¶ 15–18 (2003) (considering testimony regarding oral communications with OSC). Although the appellant filed her OSC complaints before her termination and, thus, did not raise the matter of her termination in her initial complaints, she asserted in a sworn pleading she communicated the fact of her termination with OSC via telephone on October 30, 2024. IAF, Tab 18 at 6-7. Specifically, she has asserted she happened to have a phone appointment with OSC on the date of the termination, called OSC prior to the appointment to let them know she was concerned she had just been called back to the office, then called OSC after being terminated, while still in the office, to notify OSC staff of the termination. Id. The agency has not provided any evidence to the contrary. Furthermore, OSC’s letter dated February 24, 2025, is consistent with the appellant’s sworn assertions because it reflects OSC was aware the appellant’s employment ended in October 2024 and had forwarded her retaliation complaint for investigation. Id. at 14-15; PFR File, Tab 1 at 7. Thus, preponderant evidence supports that the appellant exhausted the matter of her alleged retaliatory termination with OSC.

Finding the appellant exhausted before OSC alleged retaliatory personnel actions, we turn to the issue of whether she exhausted before OSC the specific alleged protected disclosures or activities she raises in her Board appeal. While the Board’s jurisdiction is limited to those issues that have been raised with OSC, an appellant may give a more detailed account of their whistleblowing activities before the Board than they did to OSC. Briley v. National Archives and Records Administration, 236 F.3d 1373, 1378 (Fed. Cir. 2001); Chambers, 2022 MSPB 8, ¶ 10. In her response to the administrative judge’s order on the Board’s IRA jurisdiction, the appellant sets forth an alleged sequence of events in which she asserts the agency, particularly her first-level supervisor with condonation by her second-level supervisor, 5 began retaliating against her after she filed a formal request for training as a reasonable accommodation in May 2024. 6 IAF, Tab 16 at 6-7. She asserts she raised several matters with her second-level supervisor during subsequent discussions about her request for more training. IAF, Tab 16 at 6-9. Specifically, she alleges, in a first set of disclosures made via email and during an in-person meeting on August 15, 2024, she reported her first-level supervisor did not take the time to properly train her because her first-level supervisor was rarely present in the office, which she believed violated the agency’s time and attendance policies. Id. at 6-8. She also alleges she informed her second-level supervisor, in a second set of disclosures made via email on or around August 26, 2024, that her first-level supervisor was harassing her by criticizing her work and had abused her authority by obtaining information from agency training instructors about whether the appellant had attended a training. 7 Id. at 9.

In her October 23, 2024 submission to OSC, the appellant expressly alleged retaliation for her May 2024 request for a reasonable accommodation. 8 Id. at 19-20. While she also reported to OSC her supervisor’s alleged time theft, harassment, and abuse of authority, nowhere did she identify a specific disclosure made to agency officials concerning the same. Id. Nevertheless, as stated above, an appellant is permitted to make a more detailed account of her whistleblowing activities before the Board, and these alleged disclosures all occurred in the context of subsequent discussions about her request for training as a reasonable accommodation. Briley, 236 F.3d at 1378; Chambers, 2022 MSPB 8, ¶ 10. Furthermore, her submission to OSC certainly implied she had made the same disclosures to her second-level supervisor that she had to OSC, 9 IAF, Tab 16 at 19-20, and, in response, OSC accepted her retaliation complaint, IAF, Tab 18 at 15. Thus, we find the appellant provided OSC with a sufficient basis to pursue an investigation concerning the alleged whistleblowing described above.

The appellant made a nonfrivolous allegation she engaged in whistleblowing activity by making a protected disclosure as it pertains to her first set of disclosures; the appellant did not raise nonfrivolous allegations as it pertains to her second set of disclosures.

The appellant’s request for a reasonable accommodation falls under the purview of the Rehabilitation Act and outside the Board’s IRA jurisdiction. See McCray v. Department of the Army, 2023 MSPB 10, ¶¶ 19-22 (concluding that the Board’s IRA jurisdiction does not extend to claims of reprisal for complaining of practices made unlawful by the Rehabilitation Act); see also Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶ 44 (explaining that requesting a reasonable accommodation is protected under the Rehabilitation Act). However, as mentioned above, the appellant alleged she made disclosures to her second-level supervisor concerning wrongdoing by her first-level supervisor in conversations about the appellant’s need for proper training. IAF, Tab 16 at 6-9. A nonfrivolous allegation of a protected whistleblowing disclosure is an allegation of fact that, if proven, would show the appellant disclosed a matter that a reasonable person in her position would believe evidenced one of the categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8). Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 6 (2016). The test to determine whether a putative whistleblower has a reasonable belief in the disclosure is an objective one: 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 agency evidenced 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. Id.; see 5 U.S.C. § 2302(b)(8). The Board’s regulations define a nonfrivolous allegation as an assertion that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s). 10 As the U.S. Court of Appeals for the Federal Circuit in Hessami v. Merit Systems Protection Board, 979 F.3d 1362, 1364, 1369 (Fed. Cir. 2020) determined: “[T]he question of whether the appellant has non-frivolously alleged protected disclosures [or activities] that contributed to a personnel action must be determined based on whether the employee alleged sufficient factual matter, accepted as true, to state a claim that is plausible on its face.” Any doubt or ambiguity as to whether the appellant has made a nonfrivolous allegation should be resolved in favor of affording the appellant a hearing. Huffman v. Office of Personnel Management, 92 M.S.P.R. 429, ¶ 13 (2002).

Regarding the alleged disclosures to her second-level supervisor concerning time and attendance abuse by her first-level supervisor, we find the appellant raised nonfrivolous allegations of a disclosure evidencing a reasonable belief in a violation of law, rule, or regulation. IAF, Tab 16 at 6-8, Tab 18 at 6, 33-34. The Board’s case law is clear that time and attendance abuse is a violation of law, rule, or regulation. Grubb v. Department of the Interior, 96 M.S.P.R. 377, ¶ 26 (2004). Here, the appellant allegedly disclosed her personal observations that her supervisor often would not come into the office or would arrive between the hours of 9:50 a.m. to 11:00 a.m. and then leave early, notwithstanding the agency’s telework policy of only allowing 1 telework-day per week. IAF, Tab 16 at 7-8, Tab 18 at 33-34, 39-41. Notably, the appellant did not assert she was privy to her supervisor’s timekeeping reports nor did she provide any other basis for knowing whether her supervisor was not on approved leave during her time out of the office. IAF, Tab 16 at 7-8. Nonetheless, we find the appellant could have reasonably drawn this conclusion based on the purported frequency of her supervisor’s absences. Id.; IAF, Tab 18 at 33-34, 39-41. Thus, we find she has raised nonfrivolous allegations of a protected disclosure. the appeal. Id. Pro forma allegations are insufficient to meet the nonfrivolous standard. Clark v. U.S. Postal Service, 123 M.S.P.R. 466, ¶ 6 (2016), aff’d, 679 F. App’x 1006 (Fed. Cir. 2017), and overruled on other grounds by Cronin v. U.S. Postal Service, 2022 MSPB 13, ¶ 20 n.11.

Regarding her alleged disclosures about harassment by her first-level supervisor, we find the appellant has not raised nonfrivolous allegations of a reasonable belief in an abuse of authority. See 5 U.S.C. § 2302(b)(8)(A)(ii). An abuse of authority occurs when there is an arbitrary or capricious exercise of power by a Federal official or employee that adversely affects the rights of any person or results in personal gain or advantage to himself or preferred other persons. Pasley v. Department of the Treasury, 109 M.S.P.R. 105, ¶ 18 (2008). There is no de minimis standard for abuse of authority as a basis of a protected disclosure. Id. Furthermore, the Board has recognized harassment or intimidation of other employees may constitute an abuse of authority in certain situations, such as when a supervisor uses her influence to denigrate other staff members in an abusive manner and to threaten the careers of staff members with whom she disagrees. E.g., Herman v. Department of Justice, 115 M.S.P.R. 386, ¶ 11 (2011); Pasley, 109 M.S.P.R. 105, ¶ 18. Here, the appellant allegedly disclosed that her first-level supervisor was harassing her by being overly critical of her work and, in one instance, by obtaining information about the appellant’s attendance at a voluntary training course from agency training instructors. IAF, Tab 6 at 40-41, Tab 16 at 9. She has not provided sufficient details, which, if proven, would support a reasonable conclusion that the supervision rose to the level of an abuse of authority. Id. Accordingly, we find the appellant did not raise nonfrivolous allegations that her second set of disclosures was protected.

The appellant made a nonfrivolous allegation she was subjected to covered personnel actions.

As discussed above, the appellant exhausted with OSC her claims the agency took the following personnel actions: (1) denied her a grade increase in June 2024; (2) harassed and refused to train her, including denying her request for a reasonable accommodation; and (3) terminated her in October 2024. IAF, Tab 16 at 19-20, Tab 18 at 6-7, 14-15. Actions (1) and (3) are covered personnel actions. IAF, Tab 5 at 13, 14-19, Tab 6 at 39; see 5 U.S.C. § 2302(a)(2)(A)(iii), (ix). Concerning action (2), agency actions may constitute a personnel action to the extent it represents a significant change in an employee’s duties, responsibilities, and working conditions. 5 U.S.C. § 2302(a)(2)(A)(xii); Skarada, 2022 MSPB 17, ¶¶ 14-18. The appellant’s overarching claim is that her first -level supervisor never onboarded her or trained her properly; thus, the alleged denial of her reasonable accommodation request for training in August 2024 would not have represented any change in her working conditions. IAF, Tab 6 at 8-9, Tab 16 at 6-9. The appellant also claims her supervisor was overly critical of her work, belittled her when providing feedback, and, at some point, changed her expectations for the appellant’s performance; however, the appellant’s allegations are vague and imprecise. IAF, Tab 16 at 9, 14, 20. 11 We find she has not raised a plausible claim of a personnel action based on a significant change in duties, responsibilities, and working conditions. See Hessami, 979 F.3d at 1364, 1369 (Fed. Cir. 2020).

The appellant made a nonfrivolous allegation that a protected disclosure was a contributing factor in at least one personnel action. As set forth above, to establish the Board’s jurisdiction over her claims, the appellant must nonfrivolously allege a protected disclosure or activity was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a). Edwards, 2022 MSPB 9, ¶ 8; Salerno, 123 M.S.P.R. 230, ¶ 5. One way to establish this criterion is the knowledge/timing test, under which an employee may nonfrivolously allege the disclosure or activity was a contributing factor in a personnel action. The employee may do so through circumstantial evidence, such as evidence that the official who took the personnel action knew of the disclosure or activity and the personnel action occurred within a period of time such that a reasonable person could conclude the disclosure or activity was a contributing factor in the personnel action. Salerno, 123 M.S.P.R. 11

Moreover, it is unclear whether the appellant’s supervisor took these alleged actions after her August 2024 disclosure. See infra pp. 13-15 (explaining the contributing factor requirement).

230, ¶ 13. If an appellant fails to satisfy the knowledge/timing test, the Board considers other evidence, such as evidence pertaining to the strength or weakness of the agency’s reasons for taking the personnel action, whether the whistleblowing was personally directed towards the official taking the action, or whether these individuals had a desire or motive to retaliate against the appellant. Dorney v. Department of the Army, 117 M.S.P.R. 480, ¶ 15 (2012).

As set forth above, the appellant has established nonfrivolous allegations of a protected disclosure only with regard to alleged time and attendance violations by her first-level supervisor, which she disclosed to her second-level supervisor on August 15, 2024. 12 IAF, Tabs 6-8. There is no way her August 2024 disclosure could have contributed to the denial of her grade increase in June or July 2024. See Davis v. Department of Defense, 106 M.S.P.R. 560, ¶ 12 (2007), aff’d sub. nom, Davis v. Merit Systems Protection Board, 278 F. App’x 1009 (Fed. Cir. 2008) (“Because the personnel actions complained about by the appellant predate his protected disclosures, there is no way that the disclosures could have in any way contributed to the personnel actions complained about by the appellant”); see also Orr v. Department of the Treasury, 83 M.S.P.R. 117, 124 (1999), aff’d per curiam, 232 F.3d 912 (Fed. Cir. 2000) (Table). However, we find she raised nonfrivolous allegations that the disclosure was a contributing factor in the agency’s decision to terminate her. The agency’s termination letter was signed by the Acting Special Agent in Charge of the New England Field Division. IAF, Tab 5 at 17. It is unclear from the appellant’s pleadings whether she is asserting this individual had actual knowledge of her disclosures. IAF, Tab 16 at 13-14. Nevertheless, an appellant may establish an official’s constructive knowledge of a protected disclosure by demonstrating that an individual with actual knowledge of the disclosure influenced the official accused of taking the retaliatory action. Aquino v. Department of Homeland Security, 121 M.S.P.R. 35, ¶ 19 (2014); see also Karnes v. Department of Justice, 2023 MSPB 12, ¶¶ 19-20. The appellant states the Acting Special Agent in Charge was influenced by her second-level supervisor, to whom she made the disclosure. IAF, Tab 16 at 13-14. We find her allegations to be nonfrivolous, considering the agency’s termination letter reflects the decision to terminate her was based on the appellant’s performance as assessed by her supervisors. IAF, Tab 5 at 15-17. Furthermore, the appellant avers her second-level supervisor issued her the termination letter in person and provided an oral explanation for the agency’s decision. IAF, Tab 6 at 6-7, Tab 11 at 11-12. Accordingly, we find the appellant has presented nonfrivolous allegations that her second-level supervisor played a part in the agency’s decision to terminate her, thus satisfying the knowledge prong of the knowledge/timing test at this stage. The timing prong of the knowledge/timing test is also satisfied because the appellant allegedly made her disclosure approximately 2 months before her October 30, 2024 termination. IAF, Tab 5 at 13, 14-18; see Wadhwa v. Department of Veterans Affairs, 110 M.S.P.R. 615, ¶ 12 (2009) (explaining that a 1-year period satisfies the timing prong). Accordingly, we find the appellant nonfrivolously alleged her disclosure of time and attendance violations was a contributing factor in the agency’s decision to terminate her.

On remand, the administrative judge should address the appellant’s claim that is within the Board’s jurisdiction.

Below, the administrative judge stayed discovery issues pending resolution of the jurisdictional issue. IAF, Tab 10 at 6. On review, the appellant reraises the matter of her pleading entitled “Motion to Produce Documents,” filed before the administrative judge’s ruling staying discovery. IAF, Tabs 7-9; PFR File, Tab 1 at 9. If the administrative judge does not allow the parties another opportunity for discovery before proceeding to a hearing on the merits of this IRA appeal, she should rule on the appellant’s motion. If the administrative judge allows the parties another opportunity for discovery, the appellant is encouraged to carefully follow the administrative judge’s instructions for discovery.

At the merits stage of this IRA appeal, the appellant must prove by preponderant evidence that she made a protected disclosure under 5 U.S.C. § 2302(b)(8), or engaged in an activity protected by 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and such disclosure or activity was a contributing factor in an agency’s personnel action. Turner v. Department of Agriculture, 2023 MSPB 25, ¶ 12. If the appellant meets that burden, the agency is given an opportunity to prove by clear and convincing evidence it would have taken the same personnel action absent the protected disclosure or activity. Id.

The administrative judge may adjudicate this appeal in the order she deems most efficient, and our conclusion that the appellant has presented nonfrivolous allegations regarding the existence of at least some protected whistleblowing that was a contributing factor in at least one covered personnel action in no way disposes of the merits of those issues or any others.

ORDER

For the reasons discussed above, we remand this case to the Northeastern Regional Office for further adjudication in accordance with this Remand Order. FOR THE BOARD: ______________________________

Gina K. Grippando Clerk of the Board

Washington, D.C.