Hawkes v. Department of Agriculture

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
04-3320
WAYNE C. HAWKES,
Petitioner,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
___________________________
DECIDED: November 9, 2004
___________________________
Before NEWMAN, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and BRYSON,
Circuit Judge.
PER CURIAM.
DECISION
The Merit Systems Protection Board denied Wayne C. Hawkes’ request for
corrective action under the Whistleblower Protection Act (“WPA”), No. SF-1221-02-
0558-W-1. Because the Board did not address one aspect of Dr. Hawkes’ claim, we
vacate and remand.
BACKGROUND
Dr. Hawkes is employed as a research chemist for the Department of Agriculture
(“the agency”) at the Western Human Nutrition Research Center in Davis, California. In
September 1995, he became concerned with the Center’s safety practices in handling
blood-borne pathogens. He reported alleged safety violations at the Center to the
California Office of Safety and Health Administration (“Cal-OSHA”). That report led to
an investigation of the Center by the federal Occupational Safety and Health
Administration (“OSHA”) at the end of 1995. Dr. Hawkes contends that his disclosure of
that violation constituted a protected disclosure within the meaning of the WPA and that
the agency unlawfully retaliated against him for that disclosure in several ways. First,
he was removed from the Center’s Operations Oversight and Safety Teams. Second,
he lost his supervisory responsibility when a support technician under his direction was
reassigned. Finally, he was removed as Acting Manager of the Bioanalytical Support
Laboratory at the Center.
Dr. Hawkes’ second act of alleged whistleblowing occurred in 1998 and 1999,
when he became concerned about the Center’s computer security. Dr. Hawkes
repeatedly requested that firewalls be installed in the Center’s computer system, and he
complained to the Center’s director that the Center was violating federal law and agency
regulations regarding computer security. Dr. Hawkes contends that the agency
retaliated against him for that disclosure in two ways. First, he contends that he was
denied a “mini-grant,” which is a competitive grant awarded by the Center to fund
research. Second, he maintains that the agency retaliated against him by suspending
him for 14 days based on charges relating to an e-mail he sent to friends and co-
workers containing jokes with sexually oriented themes.
Dr. Hawkes filed an individual right of action appeal with the Board, but the
administrative judge who was assigned to the case denied his request for corrective
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action. The administrative judge ruled that Dr. Hawkes’ disclosure of the safety
violations to Cal-OSHA and his disclosures of violations of federal law and agency
regulations regarding computer security were protected disclosures under the WPA.
However, the administrative judge found that the only personnel action that was
covered under the WPA was the 14-day suspension. As to the suspension, the
administrative judge found by clear and convincing evidence that the agency would
have suspended Dr. Hawkes for 14 days for sending the e-mail regardless of his acts of
whistleblowing.
Dr. Hawkes appealed the administrative judge’s decision to the full Board, which
affirmed the decision on the 14-day suspension but also considered whether the
agency’s other actions might have constituted covered personnel actions. The Board
found that the denial of the mini-grant was not a personnel action covered by section
2302(a)(2)(A) of the WPA, 5 U.S.C. § 2302(a)(2)(A). The Board also assumed, without
deciding, that the removal of Dr. Hawkes as Acting Director of the Bioanalytical Support
Laboratory and from the Operations Oversight and Safety Teams and his loss of
supervisory responsibilities were covered personnel actions. With respect to those
allegations, however, the Board found that Dr. Hawkes’ disclosures were not
contributing factors in the agency’s actions and therefore did not constitute violations of
the WPA.
DISCUSSION
Dr. Hawkes argues that the Board was wrong in ruling that the agency proved by
clear and convincing evidence that it would have suspended him for sending the e-mail
even in the absence of his protected disclosures. The administrative judge found that
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the official reasons for suspending Dr. Hawkes were convincing, namely that the sexual
connotations in the jokes were very offensive to women and that they cast the agency in
a bad light. Furthermore, the administrative judge concluded that Dr. Hawkes knew the
e-mail was offensive because he prefaced the e-mail by stating that he had taken only
the grossest jokes out before sending it. Finally, the government presented examples in
which the agency had imposed similar disciplinary actions for similar inappropriate
conduct. Under these circumstances, we cannot find that the Board’s decision was
unsupported by substantial evidence.
Dr. Hawkes next argues that the Board erred in finding that the agency’s failure
to give him a mini-grant was not a covered personnel action under section 2302(a)(2)(A)
of the WPA. The agency argues that the Board’s conclusion is valid, based on the fact
that employees had to compete for the mini-grant. In making that argument, the agency
conflates the definition of personnel action in section 2302(a)(2)(A) with the requirement
in section 1221(e)(1) of the WPA, 5 U.S.C. § 1221(e)(1), that the act of whistleblowing
be a contributing factor in the government’s decision to take the personnel action. For
example, it is conceivable that a government agency would refuse to consider an
employee for a competitive award solely to retaliate for the employee’s whistleblowing.
Awards are clearly within the definition of personnel actions. 5 U.S.C.
§ 2302(a)(2)(A)(ix). However, the problem in the context of a competitive award is that
it is difficult for the employee to prove that the award was withheld because of the
whistleblowing rather than because another employee won the competition.
We nonetheless uphold the Board’s decision on the mini-grant issue, because
the denial of the mini-grant was not a personnel action. In Weber v. Department of the
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Army, 9 F.3d 97 (Fed. Cir. 1993), an engineer complained that the Army had violated
the WPA when it selected others’ engineering proposals over his own proposals. There
was evidence that an incentive system rewarded the acceptance of engineering
proposals and that professional prestige accrued to those who submitted successful
proposals. Id. at 100. This court, however, noted that the primary purpose of the
proposals was for the “improvement of the agency’s service,” rather than to affect the
agency’s relations with its employees. Id. Thus, the court found that the rejection of the
engineering proposal did not constitute a personnel action. Id. In Dr. Hawkes’ case, the
description of the mini-grant program states that it was established to help the Center
accomplish its mission “to conduct research which will define adequate and safe levels
of nutrient intake for the U.S. population.” Like the rejection in Weber, the rejection of
Dr. Hawkes’ proposal for a mini-grant cannot be considered a personnel action,
because the program was meant to improve the agency’s service rather than to affect
the agency’s relations with its employees.
Dr. Hawkes also argues that the Board was wrong to find that his protected
disclosure to Cal-OSHA was not a contributing factor in the agency’s decision to remove
him from his positions as Acting Director of the Bioanalytical Support Laboratory and a
member of the Operations Oversight and Safety Teams, and in its decision to end his
other supervisory responsibilities. The Board based that finding solely on the testimony
of Dr. King, the official who removed Dr. Hawkes from those positions. The Board
noted that “Dr. King testified without rebuttal that she was unaware that the appellant
had made any disclosures to Cal-OSHA.” Because Dr. King was unaware of the
04-3320 5
disclosure, the Board reasoned, her removal of Dr. Hawkes from those positions could
not have been based on the disclosure.
The Board, however, ignored Dr. King’s acknowledgment that she knew Dr.
Hawkes had caused the federal OSHA inspection that resulted from his disclosure to
Cal-OSHA. Dr. Hawkes argued before both the administrative judge and the Board that
he made a protected disclosure that resulted in the federal OSHA investigation and that
he suffered retaliation as a result of that disclosure. Neither the administrative judge nor
the Board addressed that argument. The government does not suggest in its brief that
Dr. Hawkes narrowed his claim to exclude the federal OSHA investigation from the
Board’s consideration of his WPA claim. Under these circumstances, the Board should
have addressed Dr. Hawkes’ contention that he made a protected disclosure that
resulted in a federal OSHA investigation and that Dr. King retaliated against him for
causing that investigation.
In addition, the Board did not address the testimony of Mr. Bartolini, who
recommended to Dr. King that Dr. Hawkes be removed from the Operations Oversight
and Safety Teams. Mr. Bartolini admitted that he wanted Dr. Hawkes removed because
he was “too extreme” in his desire to see safety procedures relating to the OSHA
inspection conducted properly. That evidence bears on Dr. Hawkes’ contention that he
suffered retaliation as a result of protected disclosures; accordingly, the Board should
have addressed that evidence before dismissing his WPA claim.
We therefore vacate the Board’s order and remand this case to the Board for
further factual and legal development. See Holderfield v. Merit Sys. Prot. Bd., 326 F.3d
1207, 1209 (Fed. Cir. 2003) (“Since the Board did not address the ‘working conditions’
04-3320 6
definition of a personnel action, and we are not able to review its decision without its
analysis, we must vacate.”); Whittington v. Merit Sys. Prot. Bd., 80 F.3d 471, 476 (Fed.
Cir. 1996) (because the Board “failed to make relevant factual findings or apply the
appropriate statutory and regulatory law . . . we can neither reverse nor affirm the
Board’s decision because either action would require us to apply law the Board did not
consider to facts the Board did not consider”).
On remand, the Board should address whether the OSHA complaint was, in fact,
a contributing factor to Dr. Hawkes’ removal from the various positions at the Center.
With regard to that issue, the Board assumed that the removals and changes in
responsibilities were personnel actions under section 2302(a)(2)(A). The Board should
further determine whether those actions fell within the definition of personnel actions.
As to Dr. Hawkes’ arguments that the Board should not have sustained certain
procedural rulings by the administrative judge and that the Board should have found
other instances of whistleblowing, we find that they are without merit.
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