Rejanah v. Steward v. Department of the Army
Background
- Appellant was a probationary General Engineer at U.S. Army Corps of Engineers (ERDC) terminated on July 23, 2015; she filed an individual right of action (IRA) appeal claiming retaliatory termination for a protected disclosure.
- Alleged protected disclosure: in July 2015 she contacted a human resources (HR) representative to ask about an ERDC "corporate culture change committee" after two prior incidents — (1) concerns about how she was asked to sign a classified information nondisclosure agreement (NDA) (no witness, given an unapproved document), and (2) her supervisor reporting rumors that she circulated gossip.
- She asserted HR was notified and that agency officials retaliated by terminating her. She exhausted administrative remedies with the Office of Special Counsel (OSC) before filing the IRA appeal.
- The administrative judge dismissed the appeal for lack of jurisdiction without holding a hearing, finding the appellant failed to nonfrivolously allege (a) that her HR inquiry was a protected disclosure under 5 U.S.C. § 2302(b)(8) and (b) that any protected disclosure was a contributing factor in her termination.
- On petition for review the Board (majority) affirmed: the appellant’s general inquiry about a culture-change committee did not, on its face, nonfrivolously allege disclosure of gross mismanagement or abuse of authority, nor did the record show the deciding official knew of any protected disclosure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellant nonfrivolously alleged a protected disclosure under 5 U.S.C. § 2302(b)(8) | Contacting HR about a corporate culture change committee and referencing the NDA/security incident amounted to disclosure of gross mismanagement and abuse of authority | HR inquiry was a general, non-specific request; it did not convey facts a reasonable person would view as evidence of wrongdoing | Denied — the inquiry was too general to nonfrivolously allege a protected disclosure |
| Whether appellant nonfrivolously alleged disclosure of gross mismanagement (NDA/security issue) | The NDA procedure and related handling violated Army regulations and evidenced gross mismanagement | Appellant did not present facts showing she communicated those NDA/security details to HR when making the inquiry | Denied — no allegation that HR received substantive facts showing gross mismanagement |
| Whether appellant nonfrivolously alleged abuse of authority by supervisors (harassment over NDA) | Supervisors harassed/alienated her regarding NDA; this was an arbitrary exercise of power reported to HR | Appellant did not allege she informed HR about the alleged abuse in the context of her inquiry | Denied — no nonfrivolous allegation that the HR contact reported abuse of authority |
| Whether protected disclosure was a contributing factor in termination | Agency retaliated after HR contact; termination followed the disclosure and thus was retaliatory | Record lacked evidence the official who terminated her knew of any protected disclosure | Not addressed on merits because threshold protected-disclosure element failed; Board did not reach contributing-factor analysis |
Key Cases Cited
- Yunus v. Department of Veterans Affairs, 242 F.3d 1367 (Fed. Cir. 2001) (Board jurisdiction test for IRA appeals requires exhaustion and nonfrivolous allegations)
- Salerno v. Department of the Interior, 123 M.S.P.R. 230 (2016) (objective reasonable-belief test for protected disclosures)
- Swanson v. General Services Administration, 110 M.S.P.R. 278 (2008) (definition and threshold for gross mismanagement)
- Linder v. Department of Justice, 122 M.S.P.R. 14 (2014) (abuse of authority defined as arbitrary or capricious exercise of power)
- Banks v. Department of the Air Force, 4 M.S.P.R. 268 (1980) (Board may decline to consider new arguments on review absent new evidence)