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Smith v SSA ID 2012

Smith v SSA ID 2012

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1
SHARESE R. SMITH, Appellant, v. SOCIAL SECURITY ADMINISTRATION, AgencyDOCKET NUMBER NY-1221-12-0002-W-1MERIT SYSTEMS PROTECTION BOARDJune 7, 2012COUNSEL:
Leo Haar, American Federation of Government Employees, Local 1760, Jamaica, New York, for the appellant.Sergei Aden, Esq. and John M. Kelly, Esq., New York, New York, for the agency.
ALJ-DECISION:BEFORE
 JoAnn M. RuggieroAdministrative Judge
INITIAL DECISION
 
INTRODUCTION
 This timely individual-right-of-action (IRA) ap-peal under the Whistleblower Protection Act relates toa probationary termination: the termination of Ms.Smith's career-conditional appointment to the positionof Legal Assistant (Senior Case Technician), GS-6,Office of Disability Adjudication and Review (ODAR),Newark, New Jersey. A copy of a close out letter fromthe United States Office of Special Counsel (OSC) is inthe record.
See
Initial Appeal File (IAF), Tabs 1 and 8.The Board has jurisdiction over the appeal.
See
 
5U.S.C. § 1214(a)(3)
; 1221(a);
5 C.F.R. § 1209.2(b)(1)
.At the appellant's request, I held a hearing.
See
IAF,Tabs 44 and 45. For the reason explained below, theappellant's request for corrective action is DENIED.
ANALYSIS AND FINDINGS
 General legal principlesWhistleblowing is the disclosure of information by[*2] an employee (or a former employee or an appli-cant for employment) that she reasonably believes evi-dences a violation of law, rule, or regulation; grossmismanagement; a gross waste of funds; an abuse of authority; or a substantial and specific danger to publichealth or safety.
See
 
5 U.S.C. § 2302(b)(8)
;
5 C.F.R. §1209.4(b)
;
Tullis v. Department of the Navy, 117  M.S.P.R. 236, 239 (2012)
.The termination of a probationer is a "personnelaction" under the Whistleblower Protection Act.
See
 
5U.S.C. § 2302(a)(2)(A)(iii)
;
Scalera v. Department of the Navy, 102 M.S.P.R. 43, 49 (2006)
.In reviewing the merits of an IRA appeal, theBoard must examine whether the appellant proved by apreponderance of the evidence n1 that she engaged inwhistleblowing activity by making a protected disclo-sure under
5 U.S.C. § 2302(b)(8)
and that such whis-tleblowing activity was a contributing factor in thepersonnel action taken against her.
See Fisher v. Envi-ronmental Protection Agency, 108 M.S.P.R. 296, 306 (2008)
. An appellant may demonstrate that a disclosurewas a contributing [*3] factor in a personnel actionthrough circumstantial evidence such as evidence indi-cating that the official who took the personnel actionknew of the disclosure and that the personnel actionoccurred within a period of time such that a reasonableperson could conclude that the disclosure was a con-tributing factor in the personnel action.
See Johnson v. Department of Defense, 87 M.S.P.R. 454, 458-59(2000)
.n1 "Preponderance of the evidence" is definedas the degree of relevant evidence that a rea-sonable person, considering the record as awhole, would accept as sufficient to find that acontested fact is more likely to be true than un-true.
See
 
5 C.F.R. § 1201.56(c)(2)
.If the appellant meets her burden, the agency mustshow by clear and convincing evidence n2 that it wouldhave taken the same personnel action in the absence of the appellant's disclosure.
See
 
5 U.S.C. § 1221(e)
;
Whitmore v. Department of Labor, No. 2011-3084,2012 U.S. App. LEXIS 10880, [slip op.] at 22 (Fed.Cir., May 30, 2012).
[*4]
 
 2n2 "Clear and convincing evidence" is definedas that measure or degree of proof that producesin the mind of the trier of fact a firm belief as tothe allegations sought to be established. It is ahigher standard than preponderance of the evi-dence.
See
 
5 C.F.R. § 1209.4(d)
.In determining whether an agency has shown byclear and convincing evidence that it would have takenthe same personnel action in the absence of the appel-lant's disclosure, the Board will consider the followingfactors: (1) the strength of the agency's evidence insupport of its personnel action; (2) the existence andstrength of any motive to retaliate on the part of theagency officials who were involved in the decision;and (3) any evidence indicating that the agency takessimilar actions against employees who are not whistle-blowers but who are otherwise similarly situated.
SeeWhitmore, 2012 U.S. App. LEXIS 10880, [slip op.] at 18-19
;
Fisher, 108 M.S.P.R. at 306 
.
Background
The appellant is a disabled veteran.
See
IAF, Tab[*5] 4, Subtabs 4a and 4h and Tab 12. Effective Sep-tember 26, 2010, she was given a career-conditionalappointment in the competitive service to the positionof Legal Assistant (Senior Case Technician), GS-6 atthe agency's ODAR in Newark, New Jersey. She didnot have any prior federal civilian service, and the ap-pointment was subject to the completion of a one-yearprobationary period.
 Id 
., Tab 4, Subtab 4h.The appellant's first line supervisor was SteveWehrle; her second line supervisor was LynnShellhamer (the hearing office director); and her thirdline supervisor was Dennis O'Leary, Chief Administra-tive Law Judge of ODAR in Newark.
See
IAF, Tab 45.Ms. Shellhamer hired the appellant.
 Id 
., Tab 44.It turns out that at the time the appellant beganworking at ODAR in Newark, she had a pending claimfor Social Security disability benefits at the agency'sVoorhees, New Jersey office, and the claim was as-signed to Administrative Law Judge DanielShellhamer, Ms. Shellhamer's husband.
 Id 
. The claimcontinued to be processed even though the appellantinformed the Voorhees office that she was working. InJanuary 2011, she requested that the claim be adjudi-cated on the written [*6] record.
 Id 
., Tab 28, Exhibit3. It does not appear that she requested JudgeShellhamer to recuse himself or that she informed Ms.Shellhamer that the claim was assigned to JudgeShellhamer.On March 25, 2012, the appellant's claim was de-nied.
See
IAF, Tab 42, Exhibit 2. On March 30,2012--while at work--she attempted to review her So-cial Security records by entering her Social Securitynumber in the computer.
 Id 
., Tab 4, Subtab 4f. Thesystem "blocked" her; she was not able to review herrecords.
 Id 
. Nevertheless, what she did constitutes aviolation of the agency's systems access policy. Shehad signed a statement on February 11, 2011 indicatingthat she read and understood the Systems Access Poli-cy and the Table of Penalties for Violations.
 Id 
., Subtab4g.On April 4, 2011, Edward Leong, Supervisory In-formation Technology Specialist in the regional officein New York City, sent Ms. Shellhamer an e-mailmessage. Mr. Leong requested Ms. Shellhamer to look into the matter involving the appellant's attempt to ac-cess her Social Security records. He also notified Re-gional Attorney Jeanne Salidar of the matter.
 Id 
.,Subtab 4f. According to Ms. Shellhamer, she ques-tioned [*7] the appellant, and the appellant stated thatshe just wanted to take a look at the records--there wasno specific reason.
 Id 
., Tab 28, Exhibit 8.The appellant appealed Judge Shellhamer's deci-sion. In addition to appealing the decision, she con-tacted the office of Congress Member Frank Palloneand stated that it was a conflict of interest for JudgeShellhamer to have adjudicated her claim. She statedthat in reviewing her records, Judge Shellhamer wouldhave seen that she was working in the same officewhere his wife works.
 Id 
., Tab 42, Exhibit 2.The professional relationship between Ms.Shellhamer and the appellant became strained. Thiswas attributable--in part--to the appellant's takingcourses at Georgian Court University in Lakewood,New Jersey. The appellant had a class scheduled forFriday mornings. Her supervisor, Mr. Wehrle, told herthat she could take the class provided she had sufficientleave to cover her absences.
 Id 
., Tab 19. It became aproblem on Friday, April 29, 2011. The appellant wasnot at work. Ms. Shellhamer arrived in the office earlyand did not know where the appellant was. The appel-lant had filled out a leave request form on Thursday,April 28, 2011 after [*8] Mr. Wehrle left for the day.She took eight hours of leave on Friday, April 29, 2011without the request having been approved in advance.
 Id 
., Tab 28, Exhibit 6.On May 5, 2011, the appellant sent the regionaloffice in New York a statement regarding numerousincidents involving Ms. Shellhamer including the April29, 2011 leave situation. The appellant stated that shewas "absolutely miserable" and wanted to quit her job.She also stated that she worked in pain because her
 
 3physical therapy appointments at the Department of Veterans Affairs (DVA) were a problem for Ms.Shellhamer.
 Id 
. Under § 7E of Article 31 of the collec-tive bargaining agreement between the agency and theAmerican Federation of Government Employees, em-ployees who are disabled veterans have a right to leavewithout pay (LWOP)--consistent with govern-ment-wide rules and regulations--if the LWOP is formedical treatment.
 Id 
., Exhibit 19.The appellant's May 5, 2011 statement was givento Ms. Salidar, the regional attorney. On June 7, 2011,Livia Morales, an attorney in the regional office, pro-vided Ms. Shellhamer with a copy of the appellant'sstatement and directed Ms. Shellhamer to make a re-sponse. [*9]
 Id 
., Exhibit 6. Ms. Shellhamer submit-ted a response, but did not address the issue of thephysical therapy appointments. Ms. Shellhamer statedthat she had told Mr. Wehrle that the appellant wasspending an inordinate amount of time away from herdesk, conversing with other employees.
 Id 
. On July 28,2011, Ms. Salidar sent Ms. Shellhamer an e-mail mes-sage with follow up questions, and Ms. Shellhamerresponded on July 29, 2011.
 Id 
.The agency sent the appellant for training in St.Louis, Missouri during the week of June 6, 2011.
 Id 
.,Tab 4, Subtab 4d. She had a government travel cardissued by Citibank. In May 2011, she signed for aninformation packet relating to the use of the travel cardand she completed an online course relating to the useof the card.
 Id 
., Tab 43, Exhibit 32.Upon her return from St. Louis, the appellant fileda travel voucher. On June 24, 2011, she received fromthe agency a reimbursement of $ 2,011.66.
 Id 
., Tab 4,Subtab 4d.On June 15, 2011, Judge O'Leary who is in chargeof the Newark ODAR met with the appellant in con-nection with the March 30, 2011 violation of the sys-tems access policy.
 Id 
., Tab 28, Exhibit 9. The regionaloffice [*10] had determined that because of the ap-pellant's May 5, 2011 statement regarding Ms.Shellhamer, someone other than Ms. Shellhamershould handle the matter of the violation of the systemsaccess policy. Therefore, the regional office had JudgeO'Leary take over the investigation.
 Id 
., Tab 44.In a June 15, 2011 e-mail message to Ms. Morales,Judge O'Leary stated that the appellant acknowledgedattempting to access her Social Security records, butshe had no explanation other than that she did it in amoment of curiosity. He informed Ms. Morales that hebelieved that the appellant should be given a repri-mand--the minimum sanction for a first offense of thistype.
 Id 
., Tab 28, Exhibit 9.By memorandum dated June 29, 2011, JudgeO'Leary reprimanded the appellant for the violation of the systems access policy. The memorandum stated inpart: "Any future acts of misconduct could lead to amore severe disciplinary action, up to and including,removal from federal service."
 Id 
., Tab 4, Subtab 4e.With regard to the St. Louis trip, Citibank issuedthe appellant a bill for $ 380.80 for the airline tickets.Payment was due on June 28, 2011.
 Id 
., Subtab 4d. OnJuly 3, 2011, Citibank [*11] issued the appellant asecond bill indicating that the previous charge of $380.80 was not paid and that there were new charges(including the hotel costs) of $ 1,795.08 bringing thetotal she owed to $ 2,175.88. Payment was due on July28, 2011.
 Id 
.On July 29, 2011, the agency learned that Citibank placed the account in "pre-suspension" status. AngelaCichoski, a travel card program coordinator in the re-gional office, stated in an e-mail message that she con-tacted Citibank and was told that a July 21, 2011 onlinepayment of $ 380.80 that the appellant submitted wasnot valid because the appellant did not give the correctaccount number.
 Id 
., Tab 28, Exhibit 11.The regional office informed Ms. Shellhamer andMr. Wehrle that the appellant was to be instructed topay her Citibank bill in full immediately and if she didnot do so, she could be faced with disciplinary actionincluding termination.
 Id 
.On August 2, 2011, Mr. Wehrle spoke with theappellant. She then told him that she made a paymentof $ 1,814.95 to Citibank and gave him a confirmationnumber.
 Id 
.On August 4, 2011, Ms. Shellhamer directed Mr.Wehrle to have the appellant ascertain whether the $1,814.95 [*12] was deducted from her account. Ms.Shellhamer informed Mr. Wehrle that the matter of the$ 380.80 had to be resolved.
 Id 
. He then conferred withthe appellant. She advised him that she called her bank and was told that the $ 1,814.95 was not yet deductedfrom her account because Citibank had not presentedthe check. She gave him another confirmation numberand stated that she was making another payment toCitibank in the amount of $ 390.85.
See
IAF, Tab 28,Exhibit 11.The appellant's September 2011 statement fromCitibank indicated that Citibank received a payment of $ 1,814.95 on August 4, 2011 and a payment of $390.83 on August 5, 2011.
 Id 
., Tab 28, Exhibit 12.On August 17, 2011, the appellant filed an equalemployment opportunity complaint with the agency'sheadquarters office in Baltimore, Maryland. In thatcomplaint, she reiterated the claims that she made in

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