Robert Cogdell v. Department of Homeland Security ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT COGDELL, JR., DOCKET NUMBER
Appellant, CH-0752-22-0133-I-1
v.
DEPARTMENT OF HOMELAND DATE: May 13, 2024
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Robert Cogdell, Jr. , Hillside, Illinois, pro se.
Stanislaus A. Gonsalves , Esquire, Oak Brook Terrace, Illinois,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal. 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
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
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. We AFFIRM the initial decision
except as expressly MODIFIED to address the appellant’s whistleblower reprisal
affirmative defense.
BACKGROUND
The appellant was employed as a GS-13 Intelligence Research Specialist
with Immigration and Customs Enforcement at the Chicago Office of Homeland
Security Investigations (HSI). Initial Appeal File (IAF), Tab 7 at 22. The agency
removed him from his position in December 2021 for failure to follow
supervisory instructions. Id. at 23-28. This appeal followed. IAF, Tab 1.
Following a hearing, the administrative judge issued an initial decision sustaining
the agency’s charge and the penalty of removal. IAF, Tab 28, Hearing Recording
(HR), Tab 30, Initial Decision (ID). The appellant has filed a petition for review,
and the agency has responded in opposition. Petition for Review (PFR) File,
Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant does not challenge the administrative judge’s
findings as to the agency’s charge, nexus to the efficiency of the service, or the
penalty of removal. PFR File, Tab 1. Rather, he re-raises his affirmative defense
of whistleblower reprisal and “previously identified EEOC issues.” PFR File,
3
Tab 1 at 3-5; IAF, Tab 1 at 9, Tab 23 at 6-18. In her prehearing conference order,
the administrative judge sanctioned the appellant for violating her order to
compel him to respond to the agency’s deposition questions by prohibiting him
from introducing testimony and documentary evidence concerning his affirmative
defenses. IAF, Tab 19, Tab 26 at 2, 4-5. She found that, consequently, the
appellant failed to meet his burden of proving his affirmative defenses. ID at 11.
Thus, the issues on review are the following: (1) whether the administrative
judge abused her discretion in imposing this sanction; and (2) whether the
administrative judge correctly determined that the appellant did not prove his
affirmative defense after imposing this sanction.
The administrative judge did not abuse her discretion in not allowing the
appellant to introduce testimonial or documentary evidence concerning his
affirmative defenses.
Administrative judges have the authority to impose sanctions as necessary
to serve the ends of justice, including when a party fails to comply with an
administrative judge’s order. Simon v. Department of Commerce, 111 M.S.P.R.
381, ¶ 11 (2009); 5 C.F.R. § 1201.43. Among the sanctions expressly permitted
under 5 C.F.R. § 1201.43(a)(2) for failure to comply with an administrative
judge’s order is a prohibition “from introducing evidence concerning the
information sought, or from otherwise relying upon testimony related to that
information.” See Harp v. Department of the Army, 791 F.2d 161, 163 & n.2
(Fed. Cir. 1986). The Board ordinarily will not disturb an administrative judge’s
determination to impose a sanction unless it is shown that she abused her
discretion or that her erroneous ruling adversely affected a party’s substantive
rights. Simon, 111 M.S.P.R. 381, ¶ 11. The Board also may look to the Federal
Rules of Civil Procedure for guidance on a “just” sanction under the
circumstances and whether the administrative judge exercised her authority
accordingly. See Wagner v. Department of Homeland Security , 105 M.S.P.R. 67,
¶¶ 14-15 (2007); see also 5 C.F.R. § 1201.72(a); Fed. R. Civ. P. 37(b). A
4
sanction under the Federal Rules should be “proportionate” to the offense, and,
when the possibility of a severe sanction is raised, a court should consider
carefully whether a lesser sanction would be more appropriate for a particular
violation. Wagner, 105 M.S.P.R. 67, ¶ 15.
The appellant has not shown that the administrative judge abused her
discretion when she prohibited the appellant from introducing testimonial or
documentary evidence concerning his affirmative defenses. She imposed the
sanction for the appellant’s repeated refusals to respond to the agency’s questions
regarding his alleged whistleblower disclosures at its second attempt to depose
him. IAF, Tab 26 at 2; e.g., IAF, Tab 22 at 17-37, 59-61. In doing so, he
knowingly violated the administrative judge’s May 9, 2022 order to compel
responses to depositions, which she re-affirmed in her May 11, 2022 order
denying the appellant’s motion to strike. 2 IAF, Tabs 19, 21. The sanction
imposed was expressly permitted under 5 C.F.R. § 1201.43(a)(2) under these
circumstances. IAF, Tab 26 at 2. Moreover, the sanction was “just” under the
Federal Rules of Civil Procedure because it recognized that the evidence related
to the affirmative defenses was not subject to fair testing by the agency through
deposition. See Smets v. Department of the Navy, 117 M.S.P.R. 164, ¶ 12 (2011),
aff’d, 498 F. App’x 1 (Fed. Cir. 2012); Wagner, 105 M.S.P.R. 67, ¶¶ 13-15.
Accordingly, we find that the administrative judge did not abuse her discretion in
imposing this sanction.
Despite the administrative judge’s sanction precluding the appellant from
offering evidence in support of his affirmative defenses, the record nevertheless
contains some evidence, primarily submitted by the agency, in connection with
2
In his motion to strike, the appellant argued that he should not have been compelled to
answer the agency’s questions about his alleged whistleblower disclosures because
those questions should have been directed to the Department of Homeland Security
Policy Office for a policy determination. IAF, Tab 20 at 5. He also argued that the
venue of an oral deposition did not afford him whistleblower protections. Id. The
administrative judge found that his reasoning was not a proper basis for not responding
or objecting to the agency’s deposition questions. IAF, Tab 21 at 2. We agree.
5
these issues. Therefore, we supplement the initial decision to expressly address
the appellant’s claim of whistleblower reprisal, which he re-raises on review.
PFR File, Tab 1 at 3-5; IAF, Tab 1 at 9.
The appellant did not prove his affirmative defense of whistleblower reprisal.
In an adverse action appeal, such as this, an appellant’s claim of
whistleblower reprisal is treated as an affirmative defense. Shannon v.
Department of Veterans Affairs, 121 M.S.P.R. 221, ¶ 21 (2014). To establish a
prima facie case of whistleblower reprisal, an appellant must prove by
preponderant evidence that he made a protected disclosure as described under
5 U.S.C. § 2302(b)(8) or engaged in protected activity as described under
5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and the disclosure or protected
activity was a contributing factor in the agency’s decision to take or fail to take a
personnel action outlined in 5 U.S.C. § 2302(a)(2)(A). 5 U.S.C. § 1221(e)(1); see
Ayers v. Department of the Army, 123 M.S.P.R. 11, ¶ 12 & n.1 (2015).
A protected disclosure is a contributing factor if it in any way affects an
agency’s decision to take a personnel action. Dorney v. Department of the Army,
117 M.S.P.R. 480, ¶ 14 (2012). One way to establish contributing factor is the
knowledge/timing test. Wadhwa v. Department of Veterans Affairs , 110 M.S.P.R.
615, ¶ 12, aff’d, 353 F. App’x 435 (Fed. Cir. 2009). Under that test, an appellant
can prove the contributing factor element through evidence showing that the
official taking the personnel action knew of the disclosure and that the personnel
action occurred within a period of time such that a reasonable person could
conclude that the disclosure was a contributing factor in the personnel action.
Id.; see 5 U.S.C. § 1221(e)(1). If an appellant fails to satisfy the
knowledge/timing test, the Board considers other evidence, such as that
pertaining to the strength or weakness of the agency’s reasons for taking the
actions, whether the whistleblowing was personally directed at the proposing or
deciding officials, and whether those individuals had a desire or motive to
6
retaliate against the appellant. Rumsey v. Department of Justice, 120 M.S.P.R.
259, ¶ 26 (2013); Dorney, 117 M.S.P.R. 480, ¶ 15.
If the appellant establishes a prima facie case of whistleblower reprisal, the
burden shifts to the agency to show by clear and convincing evidence that it
would have taken the same personnel action in the absence of any protected
activity. See Ayers, 123 M.S.P.R. 11, ¶ 27. In determining whether the agency
made such a showing, we generally consider the following factors: (1) the
strength of the agency’s evidence in support of its action; (2) the existence and
strength of any motive to retaliate on the part of the agency officials who were
involved in the decision; and (3) any evidence that the agency takes similar
actions against employees who are not whistleblowers but who are otherwise
similarly situated. Id.; see Carr v. Social Security Administration, 185 F.3d 1318,
1323 (Fed. Cir. 1999).
In his initial appeal, the appellant raised a claim that the agency retaliated
against him for making protected disclosures. IAF, Tab 1 at 9. He filed an Office
of Special Counsel (OSC) complaint, on or around November 2021, which he
submitted to the agency as his reply to the notice of proposed removal. 3 IAF,
Tab 7 at 23, 35-59. He also alleged several protected disclosures or activities in
his sworn pleading before the administrative judge. IAF, Tab 23 at 6-18. We
discern from these submissions the following alleged protected disclosures and
activities: participation in another employee’s EEO complaint in May 2015, IAF,
Tab 7 at 42, Tab 23 at 33; multiple emails sent to agency employees since
December 3, 2020, disclosing violations of law, rule or regulation, gross
mismanagement, gross waste of funds, or abuse of authority, IAF, Tab 7 at 42-43,
Tab 23 at 6-7, 14-15; an April 2021 “grievance escalation email” alleging a
hostile work environment, IAF, Tab 7 at 50, Tab 23 at 13; and email(s) in 2021
3
We have considered the appellant’s allegations in his November 2021 OSC complaint
as part of his allegations in this case. IAF, Tab 7 at 35-59; PFR File, Tab 1 at 3-5.
However, the appellant has not alleged retaliation for filing the November 2021 OSC
complaint. IAF, Tab 23; PFR File, Tab 1 at 3-5.
7
requesting to reopen a Department of Homeland Security Office of Inspector
General (OIG) complaint, IAF, Tab 23 at 7, 13, 17; PFR File, Tab 1 at 3.
Participation in another employee’s EEO complaint in May 2015
The appellant provided the deciding official with his OSC complaint in
reply to the notice of proposed removal. IAF, Tab 7 at 23, 35-59. In his OSC
complaint, he listed as a protected whistleblowing activity that, in May 2015, he
“participated in” another employee’s EEO complaint filed against the Chief
Intelligence Officer (CIO). Id. at 42. 4 He appeared to re-raise a claim of
retaliation based on this protected activity before the administrative judge. IAF,
Tab 23 at 33.
Testifying for or otherwise lawfully assisting any individual in the exercise
of any appeal, complaint, or grievance right granted by any law, rule, or
regulation is a protected activity under 5 U.S.C. 2302(b)(9)(B). See Edwards v.
Department of Labor, 2022 MSPB 9, ¶¶ 26-27, aff’d, No. 2022-1967, 2023 WL
4398002 (Fed. Cir. Jul. 7, 2023); Alarid v. Department of the Army, 122 M.S.P.R.
600, ¶ 10 (2015). Accordingly, an affirmative defense of reprisal for this activity
is subject to the burden-shifting standards set forth in 5 U.S.C. § 1221(e). Alarid,
122 M.S.P.R. 600, ¶ 12. Here, the preponderant evidence shows that the deciding
official first learned of his alleged EEO activity in November 2021, when the
appellant supplied his OSC complaint in response to the proposal notice. 5 IAF,
Tab 7 at 23, 42; HR (testimony of the deciding official). He decided to remove
4
On review, the appellant contends that there were “several previously identified EEOC
issues” that were not addressed in the initial decision. PFR File, Tab 1 at 5. The
appellant’s OSC complaint and prehearing submission also contain references to alleged
Title VII, Civil Rights Act violations, and a hostile work environment, for example.
IAF, Tab 7 at 44, 50, Tab 23 at 7. To the extent that the appellant is alleging that he
was removed because of retaliation in violation of Title VII outside the whistleblower
context, we have discerned no direct or circumstantial evidence that any consideration
prohibited under Title VII was at least a motivating factor in his removal. See Pridgen
v. Office of Management and Budget, 2022 MSPB 31. To the extent that the appellant
may have raised any additional affirmative defenses, IAF, Tab 23 at 6-10, he has not
made any arguments regarding them on petition for review, and we will not consider
them further.
8
the appellant in December 2021. IAF, Tab 7 at 23-28. Thus, the contributing
factor standard is established through the knowledge/timing test. See Salinas v.
Department of the Army, 94 M.S.P.R. 54, ¶ 9 (2003) (stating that the acting
officials’ knowledge of the disclosure and the timing of the personnel action
constitute the circumstantial evidence relevant to contributing factor under the
knowledge/timing test).
We next turn to the question of whether the agency proved by clear and
convincing evidence that it would have separated the appellant absent his
protected activity. As to the first Carr factor, the strength of the agency’s
evidence in support of its action, the administrative judge found that the agency
proved all seven specifications of its charge of failure to follow instructions. ID
at 7; IAF, Tab 7 at 60-61. Significantly, the appellant did not deny the factual
basis of the charge, i.e., that he failed to complete his assignments as instructed.
HR (testimony of the appellant). Rather, he challenged the propriety of the
instructions based on, among other things, the U.S. Constitution. IAF, Tab 23
at 8-10; HR (testimony of the appellant). The administrative judge found the
appellant’s assertions of constitutional violations unpersuasive, and she credited
the testimonies of the appellant’s supervisors that the instructions comported with
agency policy and procedures. ID at 5-8. We discern no error in that regard.
Thus, we find that the agency had strong, legitimate reasons for the appellant’s
removal.
Regarding the second Carr factor, the record contains no evidence other
than circumstantial evidence of knowledge/timing concerning any retaliatory
motive on the part of the deciding official. The deciding official testified
persuasively regarding his decision to sustain the appellant’s removal, which did
5
We assume without deciding that the appellant engaged in protected activity under
section 2302(b)(9)(B). In any event, the Board has explained that whistleblower
protections extend to individuals who were perceived to engage in protected activity,
even if they had not done so. See Corthell v. Department of Homeland Security,
123 M.S.P.R. 417, ¶¶ 9-12 (2016), overruled on other grounds by Requena v.
Department of Homeland Security, 2022 MSPB 39.
9
not include any improper considerations. HR (testimony of the deciding official).
To the extent that the deciding official may have been influenced by the
retaliatory motives of other agency officials involved in the decision, there is no
indication in the record that any other official had knowledge of the appellant’s
purported activity except for—presumably—the CIO. According to the appellant,
the CIO was the accused official in the 2015 EEO case. IAF, Tab 7 at 42. The
agency’s specifications and underlying evidence reflect that the CIO was the
appellant’s second-line supervisor at the time of the removal action and was
involved to some degree in the issuance of the supervisory instructions
underlying its charge. Id. at 60-61, 68, 72-73; HR (testimony of the CIO).
However, the record does not contain other evidence of a retaliatory motive on
the part of the CIO, who, notably, had been a supervisor in the appellant’s chain
of command since the purported EEO activity in 2015 without incident. HR
(testimony of the CIO). Ultimately, we find that the agency has established that
there was not a strong motive to retaliate on the part of the agency officials who
were involved in the decision.
Lastly, the third Carr factor cannot weigh in the agency’s favor because the
record does not definitely establish that the agency has taken similar actions
against non-whistleblowers. See Karnes v. Department of Justice, 2023 MSPB 12¶ 35. Here, there is no discussion in the record regarding the existence of
potential comparators. Given the complete absence of evidence on the issue, we
conclude that Carr factor 3 is removed from consideration and is a neutral factor.
See id., ¶ 36.
After weighing the Carr factors, we find that the agency proved by clear
and convincing evidence that it would have taken the removal action absent the
appellant’s protected activity under 5 U.S.C. 2302(b)(9)(B).
10
Multiple emails sent to agency employees since December 3, 2020,
disclosing violations of law, rule or regulation, gross mismanagement,
gross waste of funds, or abuse of authority
Protected whistleblowing occurs when an appellant makes a disclosure that
he reasonably believes evidences a violation of law, rule, or regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health and safety. Pridgen v. Office of Management
and Budget, 2022 MSPB 31, ¶ 52. The proper test for determining whether an
employee had a reasonable belief that his disclosures were protected is whether a
disinterested observer with knowledge of the essential facts known to, and readily
ascertainable by, the employee could reasonably conclude that the actions
evidenced a violation of a law, rule, or regulation, or one of the other conditions
set forth in 5 U.S.C. § 2302(b)(8). Id. Furthermore, to make a protected
disclosure of a law, rule, or regulation, an employee ordinarily must identify the
specific law, rule, or regulation that was violated, unless the statements and the
circumstances surrounding the making of those statements clearly implicate an
identifiable violation of law, rule, or regulation. Ayers, 123 M.S.P.R. 11, ¶ 24.
The disclosures must be specific and detailed, not vague allegations of
wrongdoing regarding broad or imprecise matters. Rzucidlo v. Department of the
Army, 101 M.S.P.R. 616, ¶ 13 (2006).
In his sworn prehearing submission, the appellant contended that HSI
managers in his office violated specific sections of the HSI Case Management
Handbook, 6 as well as the Fourth Amendment of the U.S. Constitution, when
using their case management system to process cases because they failed to
provide an Investigative Case Management (ICM) case number for each
assignment. IAF, Tab 23 at 8-10. He alleged that, on December 3, 2020, and in
multiple other emails, he requested to discuss his concerns or obtain ICM case
numbers from Special Agents and supervisors. IAF, Tab 7 at 55-58, Tab 23
6
For purposes of our analysis, we assume without deciding that the provisions of the
HSI Case Management Handbook constitute “rule(s)” under section 2302(b)(8)(A)(i).
11
at 6-7, 14-15. However, the only documentary evidence of his actual emails
reflects that his expressed concerns were vague and conclusory. IAF, Tab 7
at 42-43, 7 Tab 8 at 94, 102, Tab 24 at 31-32, 34, 37-38. Although the emails
express his “firm opinion” that an ICM case number was required for completion
of his work assignments, e.g., IAF, Tab 24 at 31, he does not identify any specific
law, rule, or regulation that he believed was being violated by failing to provide
an ICM case number, IAF, Tab 7 at 42-43; Tab 8 at 94, 102; Tab 24 at 31-32, 34,
37-38. Indeed, in one instance, his supervisor responded to his email containing
the disclosure with a request that the appellant “[p]lease help [him] understand
why [he] ke[pt] raising this as a concern,” which further supports that the alleged
violation was not identifiable or ascertainable under the circumstances. IAF,
Tab 24 at 36. This is not a situation in which the circumstances clearly implicate
an identifiable violation of law, rule, or regulation. Cf. Ayers, 123 M.S.P.R. 11,
¶ 24. We therefore conclude that the appellant did not establish that these emails
contained disclosures that he reasonably believed constitute protected disclosures
of any type of wrongdoing described under 5 U.S.C. § 2302(b)(8). See Rzucidlo,
101 M.S.P.R. 616, ¶ 13; see also Young v. Merit Systems Protection Board ,
961 F.3d 1323, 1328-29 (Fed. Cir. 2020) (agreeing with the administrative judge
that allegations that employees were taking longer breaks than were permitted and
that “no work was being done” were so general in nature that they did not rise to
the level of nonfrivolous allegations of wrongdoing under 5 U.S.C.
§ 2302(b)(8)(A)).
7
In his sworn OSC complaint, the appellant identified as protected disclosures a May 6,
2020 email to the then Deputy Special Agent in Charge (DSAC), a May 8, 2020 email
to the Assistant Special Agent in Charge (ASAC), and a July 10, 2020 email to the
DSAC and the ASAC, IAF, Tab 7 at 42-43, and provided excerpts of these emails. We
have considered these excerpts as evidence of the content of these emails.
12
April 2021 “grievance escalation email” alleging a hostile work
environment
The appellant reported to OSC that he filed a grievance under agency
grievance procedures in May 2020 and escalated his claim of “discriminatory
harassment hostile work environment” in an April 2021 email. IAF, Tab 7 at 38,
50. He argued in his prehearing submission that he sent a “grievance escalation
email” in April 2021, regarding hostile work environment and retaliation
concerns. IAF, Tab 23 at 13. The agency submitted evidence of an April 2021
email, in which the appellant complained of “ongoing and continually escalating
hostile workplace environment/activities,” which he believed were
“fundamentally rooted in [r]etaliation.” IAF, Tab 24 at 106. The deciding
official, who received his email, requested clarification and expressed that it was
“still not clear to [him] what exactly is [the] grievance.” Id. at 105.
We find no indication in these emails that the appellant was seeking to
remedy whistleblower reprisal. IAF, Tab 25 at 105-07; see 5 U.S.C.
§ 2302(b)(9)(A)(i). Assuming that the appellant sought to oppose Title VII
discrimination or retaliation in this email, we have discerned no direct or
circumstantial evidence that any consideration prohibited under Title VII was a
motivating factor in his removal. See Pridgen, 2022 MSPB 31, ¶¶ 20-24, 30;
supra note 4, at 7. 8 Thus, we find that the appellant has not proven an affirmative
defense based on his April 2021 email.
Emails in 2021 requesting to reopen a Department of Homeland Security
OIG complaint
The appellant reported to OSC that he opened an OIG complaint in
November 2017. IAF, Tab 7 at 38. In his prehearing submission, he asserted that
8
A claim of retaliation for exercising grievance rights outside the whistleblower
context, i.e., a prohibited personnel practice under 5 U.S.C. § 2302(b)(9)(A)(ii), is
evaluated under the Warren standard. See Warren v. Department of the Army, 804 F.2d
654, 656-58 (Fed. Cir. 1986). To the extent that the appellant has raised this claim, we
find that it is unproven because the appellant has not shown a genuine nexus between
retaliation for protected grievance activity and his removal. See id.13
he notified HSI management in November 2021 that he was a “[w]histleblower”
because he previously reported retaliation to OIG. IAF, Tab 23 at 17. He also
alleged that he sent an email request to OIG to reopen his complaint sometime in
the timeframe of February 1 to April 30, 2021, and again following his notice of
proposed removal in November 2021. IAF, Tab 23 at 7, 13, 17; PFR File, Tab 1
at 3. The Board has found that disclosures to an agency’s OIG constitute
protected activity under 5 U.S.C. § 2302(b)(9)(C) regardless of their content. See
Pridgen, 2022 MSPB 31, ¶ 62. We note, however, that the record contains no
documentary evidence of the appellant’s alleged OIG complaint from November
2017 or the appellant’s subsequent email requests to reopen the case in 2021.
Nevertheless, the record shows that the deciding official became aware of
at least some of his purported OIG activity in November 2021, when he received
his OSC complaint in response to the notice of proposed removal. IAF, Tab 7
at 23, 38; HR (testimony of the deciding official). Therefore, we find that the
contributing factor standard is established through the knowledge/timing test
concerning the appellant’s alleged activity under 5 U.S.C. § 2302(b)(9)(C). See
Salinas, 94 M.S.P.R. 54, ¶ 9.
Applying the Carr factors once more, we again find that the agency had
strong, legitimate reasons for the appellant’s removal and that this factor
continues to weigh in the agency’s favor. See supra p. 8. Regarding the second
Carr factor, we note an additional consideration as it pertains to the appellant’s
OIG complaint(s). The U.S. Court of Appeals for the Federal Circuit (Federal
Circuit) has instructed the Board to fully consider whether agency officials
possessed a “professional retaliatory motive” because the whistleblower’s
disclosures implicated agency officials and employees in general. See Soto v.
Department of Veterans Affairs, 2022 MSPB 6, ¶¶ 14-15 (discussing the Federal
Circuit’s decisions on this issue). A reasonable inference based on the evidence
here is that the deciding official presumed that the appellant’s OIG complaint,
like his OSC complaint, generally implicated the deciding official and others by
14
alleging that they ignored the appellant’s concerns regarding ICM Case numbers
and continued to violate suspects’ constitutional rights. IAF, Tab 7 at 42-43,
49-50. However, the agency officials testified credibly and persuasively
regarding the propriety of their actions, and there is no indication that they
believed the appellant’s OIG complaint would reflect poorly on them or the
agency at large. HR (testimonies of the first-line supervisor, the CIO, and the
deciding official). Because there was no other evidence submitted concerning
any retaliatory motive, we do not infer one. Overall, there is only weak,
circumstantial evidence of a retaliatory motive. Finally, we again find that the
third Carr factor is a neutral factor because the record is devoid of comparator
evidence. See supra p. 9. Weighing all three factors, we find that the agency
proved by clear and convincing evidence that it would have taken the same
removal action absent the appellant’s purported OIG complaints. Finally,
considering the appellant’s alleged protected activity collectively, i.e., both his
EEO activity in May 2015 and his OIG complaints, our findings are unchanged.
Accordingly, we affirm the initial decision as modified and sustain the
appellant’s removal.
NOTICE OF APPEAL RIGHTS 9
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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
9
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
15
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
16
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
17
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. 10 The court of appeals must receive your
10
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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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.
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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.