Janel N. Smith v. Merit Systems Protection Board

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 28, 2025*
Decided April 3, 2025
Before
FRANK H. EASTERBROOK, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 24-2058
JANEL N. SMITH,
Petitioner,
v.
MERIT SYSTEMS PROTECTION
BOARD,
Respondent.
Petition for Review of a Decision of the
Merit Systems Protection Board.
No. CH-1221-22-0137-W-1
O R D E R
Janel Smith, an analyst for the Bureau of Alcohol, Tobacco, Firearms and
Explosives, petitions this court to review a final order of the Merit Systems Protection
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 24-2058 Page 2
Board dismissing her whistleblower appeal. Because the Board correctly concluded that
Smith was not entitled to a hearing on her claims, we deny Smith’s petition.
I.
Smith’s earliest whistleblower activities date back to 2010, when she filed a
report with the Bureau’s Inspector General alleging that her supervisor had been
reporting inflated inspection numbers. She later filed a complaint with the Office of
Special Counsel alleging that the Bureau negatively commented upon her performance
in retaliation for her report about her supervisor. The Office refused to take corrective
action, and in 2013, Smith appealed to the Merit Systems Protection Board. Two years
later, Smith participated in a hearing for her appeal. In 2016, the Board denied her
appeal, concluding that she failed to allege that her whistleblowing activity contributed
to the negative comments about her job performance. Smith’s supervisor was
reassigned soon thereafter and no longer directly managed her.
Throughout her employment, Smith has taken several other legal actions against
the Bureau. In 2010, she filed a complaint with the Equal Employment Opportunity
Commission (EEOC) alleging harassment by her supervisor. In 2014, she filed a Federal
Torts Claims Act complaint in federal court concerning a workplace assault. Both
actions were ultimately unsuccessful. And in 2016, Smith requested—and in 2020
received—documentation from the Bureau under the Freedom of Information Act.
In 2021, Smith applied for the position of Industry Operations Investigator
within the Bureau, but she was not selected. She then filed a complaint with the Office
of Special Counsel, alleging that she was not selected for the position and was denied
training because she had engaged in whistleblowing activities. The Office closed her
complaint without seeking corrective action; the closure letter stated that Smith failed to
identify when the allegedly retaliatory actions occurred and that, in any event, the
Bureau has significant discretion in making selection decisions and her nonselection did
not appear to have been influenced by her whistleblowing activities. She appealed to
the Merit Systems Protection Board.
An administrative judge for the Board dismissed Smith’s appeal. The judge
explained that Smith failed to meet her burden to demonstrate her entitlement to a
hearing by “nonfrivolously” pleading that she engaged in whistleblowing activity, and
that this activity contributed to the Bureau’s decision to act against her. See 5 U.S.C.
§ 1221(a); id. § 2302.

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No. 24-2058 Page 3
Smith petitioned for review of the judge’s decision, and the Board affirmed. The
Board determined that although Smith had nonfrivolously alleged that she had
engaged in some whistleblowing activity (her 2010 disclosure to the Inspector General
and her subsequent appeal to the Board in 2013) and that the Bureau had taken a
personnel action against her (her 2021 nonselection), she did not adequately plead that
her activity contributed to the adverse action. The Board further concluded that she
failed to allege that her federal lawsuit concerning her alleged assault was protected
activity because she did not provide sufficient detail about the incident. Nor did her
complaint with the EEOC qualify, the Board reasoned, because such complaints are not
considered protected activities under the Whistleblower Protection Act, 5 U.S.C. § 2302,
which shields federal employees who report a legal or regulatory violation, gross
mismanagement, abuse of authority, or danger to public safety. See id. § 2302(a)(2)(D).
And, in the Board’s view, Smith’s claim that she was denied training did not qualify as
a personnel action because she did not provide any specific allegations about her lack of
training. Smith then petitioned this court for review.
II.
Our review of the Board’s decision is deferential: We will not set aside the
Board’s decision unless its findings or conclusions are “arbitrary, capricious, an abuse
of discretion, not in accordance with law, obtained without proper procedures, or
unsupported by substantial evidence.” Delgado v. Merit Sys. Prot. Bd., 880 F.3d 913, 916
(7th Cir. 2018) (citing 5 U.S.C. § 7703(c)).
Under the Whistleblower Protection Act, the Board may hear employee appeals
of federal personnel actions that are alleged to be retaliation for the employee’s
protected activity. See 5 U.S.C. § 1221(a); 5 C.F.R. § 1209.6(b). To establish entitlement to
a hearing, the employee bears the burden of proving—by a preponderance of the
evidence—that she exhausted her claims before the Office of Special Counsel and
nonfrivolously alleged that: (1) she made a protected disclosure, id. § 2302(b)(8), or
otherwise engaged in protected activity, id. § 2302(b)(9)(A)(i), (B), (C), (D); and (2) the
protected activity served as a contributing factor in the employer’s decision to take a
personnel action against her, id. § 2302(a)(2)(A). See also Yunus v. Dep’t of Veterans Affs.,
242 F.3d 1367, 1371 (Fed. Cir. 2001); Hicks v. Merit Sys. Prot. Bd., 819 F.3d 1318, 1320
(Fed. Cir. 2016). An allegation is considered nonfrivolous when it: “(1) is more than
conclusory; (2) is plausible on its face; and (3) is material to the legal issues in the
appeal.” 5 C.F.R. § 1201.4(s).

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No. 24-2058 Page 4
Smith raises a three-part challenge to the Board’s conclusion that certain of her
actions did not qualify as protected activities. First, in response to the Board’s finding
that she presented insufficient information about her federal suit alleging assault, she
contends that the Board’s electronic filing process contained a character limit
preventing her from adequately detailing how her federal suit qualified. But none of the
supplemental documents that she submitted to the Office of Special Counsel and the
Board elaborated on her federal suit. Her allegations about the underlying assault are
vague and conclusory—failing to mention, for instance, her assailant, the nature of the
assault, its timing, or how the assault was reported—and insufficient to meet the
standard for nonfrivolous pleading. See Young v. Merit Sys. Prot. Bd., 961 F.3d 1323,
1328–29 (Fed. Cir. 2020). Second, she argues that her EEOC complaint was mislabeled as
a discrimination claim (and not a claim that the Bureau retaliated against her for
engaging in whistleblowing activity). But the filing of an EEOC complaint is not
considered protected activity under the Whistleblower Protection Act—regardless of
how the underlying claim is characterized. See Spruill v. Merit Sys. Prot. Bd., 978 F.2d
679, 689–92 (Fed. Cir. 1992). Third, she asserts for the first time that her request for
documentation under the Freedom of Information Act also counts as protected activity,
because the documents she ultimately received substantiated her concerns that the
Bureau had destroyed and concealed evidence pertaining to her legal actions against
the Bureau. But she waived this claim by not presenting it first to the Board. See Sistek v.
Dep’t of Veterans Affs., 955 F.3d 948, 953 n.1 (Fed. Cir. 2020) (citing Bosley v. Merit Sys.
Prot. Bd., 162 F.3d 665, 668 (Fed. Cir. 1998)).
Smith next challenges the Board’s determination that she failed to nonfrivolously
allege that her lack of training qualified as a personnel action.† She maintains that the
Bureau’s refusal to train her resulted in lost job opportunities. In her view, other
analysts in her office received training that she did not receive, and these analysts were
later selected for jobs within the Bureau. But in order for training (or a lack thereof) to
constitute a personnel action, it must “reasonably be expected to lead to an
appointment, promotion, performance evaluation, or other [personnel] action.” 5 U.S.C.
§ 2302(a)(2)(A)(ix). Smith’s scant and conclusory allegations about lack of training do
not identify the kind of training she missed or how such training would be expected to
† In her opening brief, Smith did not challenge the Board’s conclusion that she
failed to exhaust other personnel actions before the Office of Special Counsel. She raises
the issue in her reply, but arguments made for the first time in a reply brief are waived.
See White v. United States, 8 F.4th 547, 552 (7th Cir. 2021).

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No. 24-2058 Page 5
lead to promotion or another positive personnel action. Further, she does not allege that
she sought the jobs obtained by the analysts who received training or that those jobs
required special training and therefore has failed to nonfrivolously allege that her lack
of training qualified as a personnel action. See Young, 961 F.3d at 1328–29.
Finally, Smith argues that the Board wrongly concluded that she had not shown
that her protected activities were a contributing factor in the Bureau’s personnel actions.
An employee can make this showing by means of circumstantial evidence (the
“knowledge/timing” test), such as evidence that (1) the official who took the personnel
action knew about her protected activities, and (2) the personnel action “occurred
within a period of time such that a reasonable person could conclude that” the
protected activities were a contributing factor in the action. Delgado v. U.S. Dep’t of Just.,
979 F.3d 550, 554 (7th Cir. 2020) (quoting 5 U.S.C. § 1221(e)(1)). Smith contends that her
protected activities (including her Freedom of Information Act requests) were not too
attenuated in time from the personnel actions taken against her (including the Bureau’s
ongoing refusal to train her) for a reasonable person to conclude that they played a
contributing role.
Smith has failed to demonstrate that the knowledge/timing test is met. The only
protected activities that Smith nonfrivolously alleged are her 2010 disclosure to the
Inspector General and her 2013 appeal to the Board (which was dismissed in 2016), and
the sole personnel action that she nonfrivolously alleged is her 2021 nonselection for the
Investigator position. Because her protected activities preceded her nonselection by (at
least) five years, they cannot reasonably be considered a contributing factor.
See, e.g., Salinas v. Dep’t of Army, 94 M.S.P.R. 54, 59 (2003) (citing Costello v. Merit Sys.
Prot. Bd., 182 F.3d 1372, 1377 (Fed. Cir. 1999)) (two-and-a-half-year gap between
protected disclosure and personnel action was too remote in time for a reasonable
person to conclude that the disclosure was a contributing factor). In any event, Smith
does not allege who the selecting official for the Investigator role was, much less that
the official had knowledge of Smith’s protected activities. See Delgado v. U.S. Dep’t of
Just., 979 F.3d at 554.
Moreover, Smith presents no other allegations that support a connection between
her protected activities and her nonselection. If—as here—the knowledge/timing test is
not met, the Board must consider other evidence, including the “strength or weakness”
of the Bureau’s reasons for not selecting Smith, whether Smith’s protected activities
were “personally directed” at the selecting individuals, and whether “those individuals
had a desire or motive to retaliate against” Smith. Rumsey v. Dep’t of Just., 120 M.S.P.R.

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No. 24-2058 Page 6
259, 273 (2013). To that end, Smith invokes the “cat’s paw” theory, which applies when
an official, “acting because of an improper animus, influences an agency official who is
unaware of the improper animus when implementing a personnel action.” See Aquino v.
Dep’t of Homeland Sec., 121 M.S.P.R. 35, 45 (2014) (citing Staub v. Proctor Hosp., 562 U.S.
411, 415–16 (2011)). But all that Smith alleges in support of this theory is that the official
who served as the “Attorney for the Day” for the Bureau’s Inspector General office
when she made her 2010 disclosure also served as the Deputy Chief of the Bureau’s
Human Resources department when she was not selected for the Investigator role, and
that this official is friends with Smith’s former supervisor. These claims, standing alone,
are insufficient to plausibly allege that this individual was involved in the selection of
the Investigator position or that he improperly influenced another official not to select
Smith for the role.
For the foregoing reasons, we DENY Smith’s petition for review.

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