Amirmokri v. Department of Energy

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3167
HOMI N. AMIRMOKRI,
Petitioner,
v.
DEPARTMENT OF ENERGY,
Respondent.
Morris E. Fischer, Law Office of Morris E. Fischer, of Bethesda, Maryland,
argued for petitioner.
Christopher A. Bowen, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, argued for
respondent. With him on the brief were Jeanne E. Davidson, Director, Todd M. Hughes,
Assistant Director. Of counsel was Claudia Burke, Trial Attorney.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3167
HOMI N. AMIRMOKRI,
Petitioner,
v.
DEPARTMENT OF ENERGY,
Respondent.
Petition for review of the Merit Systems Protection Board
in DC1221070864-W-1.
___________________________
DECIDED: February 17, 2009
___________________________
Before RADER, BRYSON, and MOORE, Circuit Judges.
PER CURIAM.
DECISION
Homi N. Amirmokri petitions for review of a final decision of the Merit Systems
Protection Board denying his request for corrective action following an agency
reprimand. We affirm the decision of the Board.
BACKGROUND
Mr. Amirmokri is a nuclear engineer who works at the Department of Energy’s
Office of Nuclear Energy in Germantown, Maryland. On the morning of October 27,
2006, he was involved in an altercation in that office’s cafeteria. After the altercation,
the Deputy Director of Nuclear Operations removed Mr. Amirmokri from the premises
and issued him a letter of reprimand for inappropriate behavior. The letter stated that
Mr. Amirmokri was being reprimanded for approaching another individual in a manner
that caused the individual to perceive a physical threat.
On March 20, 2007, Mr. Amirmokri filed a complaint with the Department of
Energy’s Equal Employment Opportunity Office (“EEO”) alleging that his removal from
the office and his reprimand were the result of discrimination on the basis of national
origin as well as retaliation for whistleblowing activities. Then, on August 15, 2007, Mr.
Amirmokri filed an Individual Right of Action complaint with the Merit Systems Protection
Board. That complaint alleged that his removal from the office and the issuance of a
letter of reprimand were in retaliation for his prior whistleblowing activities. An
administrative judge of the Merit Systems Protection Board held a hearing to evaluate
that claim.
On November 15, 2007, the administrative judge issued an initial decision
denying Mr. Amirmokri’s claim that he had been retaliated against for whistleblowing.
The administrative judge first determined that Mr. Amirmokri had made nonfrivolous
allegations that he had engaged in protected whistleblowing activity in 2003 and 2004
and that his protected disclosures were a contributing factor in the agency’s disciplinary
action. The administrative judge then determined that despite Mr. Amirmokri’s
reasonable belief that his whistleblowing activity had been a contributing factor in his
having been disciplined, the agency had demonstrated, by clear and convincing
evidence, that it would have taken the same disciplinary actions in the absence of Mr.
2008-3167 2
Amirmokri’s protected activities. The administrative judge reached that conclusion
because the agency’s actions were supported by “five written statements by agency
employees and contractors who observed the October 27, 2006, incident in the
cafeteria.” The administrative judge explained that the witness statements were “strong
evidence of the appellant’s misconduct.” The judge also found that Mr. Amirmokri’s
supervisor had “little or no motive to retaliate” for Mr. Amirmokri’s whistleblowing
activity, as the supervisor “was not shown to have suffered any adverse consequences
because of the activity when it occurred or at any time since then.” The administrative
judge’s decision became the Board’s final decision on December 20, 2007. On
February 20, 2008, Mr. Amirmokri filed the instant petition for review of that final
decision.
On April 8, 2008, the EEO issued its Final Agency Decision, finding that Mr.
Amirmokri had failed to establish by a preponderance of evidence that he had been
subject to either discrimination based on national origin. With respect to the allegation
that he was subject to retaliation due to his whistleblowing activity, the agency noted
that “whistle-blowing activity is not protected under Title VII.”
On April 21, 2008, Mr. Amirmokri filed suit against the Department of Energy in
the United States District Court for the District of Maryland. Amirmokri v. Department of
Energy, No. 09-cv-00994. In his complaint, Mr. Amirmokri alleged the same two claims
that he had brought before the EEO. In the first count, Mr. Amirmokri alleged that his
removal from the building and his letter of reprimand were the result of national origin
discrimination. The second count alleged that the agency removed him from the
building and reprimanded him in retaliation for prior whistleblowing activities.
2008-3167 3
DISCUSSION
The government contends that the Merit Systems Protection Board lacked
subject matter jurisdiction over this appeal and that we should therefore dismiss the
petition. The government’s argument is that when Mr. Amirmokri began the EEO
process with the agency, he immediately became barred from filing an appeal to the
Board by 29 C.F.R. § 1614.302. That regulation provides, in pertinent part, as follows:
(a) Definitions –
(1) Mixed case complaint. A mixed case complaint is a complaint of
employment discrimination filed with a federal agency based on race,
color, religion, sex, national origin, age or handicap related to or stemming
from an action that can be appealed to the Merit Systems Protection
Board (MSPB). The complaint may contain only an allegation of
employment discrimination or it may contain additional allegations that the
MSPB has jurisdiction to address.
(2) Mixed case appeals. A mixed case appeal is an appeal filed with the
MSPB that alleges that an appealable agency action was effected, in
whole or in part, because of discrimination on the bases of race, color,
religion, sex, national origin, handicap or age.
In his original complaint to the EEO, Mr. Amirmokri alleged discrimination on the
basis of national origin and a violation of the Whistleblower Protection Act. The alleged
act of discrimination was related to an action that could be appealed to the Merit
Systems Protection Board, which has jurisdiction over whistleblowing claims under 5
U.S.C. § 1214(a)(3), 5 U.S.C. § 1221, and 5 C.F.R. § 1209.2. Mr. Amirmokri’s
complaint to the EEO was thus a “mixed case complaint.” Mr. Amirmokri’s appeal to the
Board, by contrast, alleged solely a retaliation claim for whistleblowing activities and
made no mention of discrimination. As such, his appeal to the Board was not a “mixed
case appeal” under 29 C.F.R. § 1614.302(a).
2008-3167 4
The effect of filing mixed actions is discussed in 29 C.F.R. § 1614.302(b). That
section provides as follows, in pertinent part:
(b) Election. An aggrieved person may initially file a mixed case complaint
with an agency pursuant to this part or an appeal on the same matter with
the MSPB pursuant to 5 CFR 1201.151, but not both. An agency shall
inform every employee who is the subject of an action that is appealable
to the MSPB and who has either orally or in writing raised the issue of
discrimination during the processing of the action of the right to file either a
mixed case complaint with the agency or to file a mixed case appeal with
the MSPB. The person shall be advised that he or she may not initially file
both a mixed case complaint and an appeal on the same matter and that
whichever is filed first shall be considered an election to proceed in that
forum.
The first sentence of section 1614.302(b) makes clear that a claimant may not file both
a mixed case complaint and an appeal pursuant to 5 C.F.R. § 1201.151, which applies
to allegations that a personnel action was “based, in whole or in part, on prohibited
discrimination.” 5 C.F.R. § 1201.151. As Mr. Amirmokri’s claim to the Board did not
allege discrimination, the first sentence of section 1614.302(b) does not prohibit his
simultaneous pursuit of those two claims. While the second sentence of section
1614.302(b) explicitly prohibits the filing of both a mixed case complaint and a mixed
case appeal, Mr. Amirmokri did not file a mixed case appeal and is thus not barred by
that prohibition. Finally, the third sentence of section 1614.302(b) simply reiterates the
rule from the opening sentence that a claimant may not initially file both a mixed case
complaint and an appeal “on the same matter.” Therefore, nothing in section
1614.302(b) barred Mr. Amirmokri from filing an appeal with the Board, even though he
had previously filed a claim with the EEO.
Another subsection of section 1614.302, 29 C.F.R. § 1614.302(d), establishes
the procedures applicable when a claimant initially files a mixed case complaint with the
2008-3167 5
EEO, as Mr. Amirmokri has done in this case. We recently outlined the operation of that
provision within the regulatory framework. See Toyama v. Merit Sys. Prot. Bd., 481
F.3d 1361 (Fed. Cir. 2007). As we explained in Toyama:
The EEOC’s regulations specify that parties with mixed cases may elect to
proceed under either the MSPB’s procedures or the EEOC’s procedures,
but not both. 29 C.F.R. § 1614.302(b); 5 C.F.R. § 1201.154. Under the
EEOC’s regulations, separate procedures apply to a party presenting a
mixed case complaint, as compared to a pure discrimination complaint.
29 C.F.R. § 1614.302(a). Specifically, the EEOC’s procedures dictate that
after the agency issues its final decision on a mixed case complaint,
aggrieved parties may appeal to the MSPB or may file a civil action in
district court. 29 C.F.R. § 1614.302(d). . . .
By contrast, pure discrimination complaints follow the general
EEOC procedures contained in subpart A. Those general procedures
permit appeal of the agency’s final decision only to the EEOC’s OFO or
filing a civil action in district court. 29 C.F.R. § 1614.110(a).
Parties proceeding with a mixed case appeal to the MSPB have
thirty days from the Board’s final decision to petition the EEOC for
consideration or to file a civil action in the district court. 5 C.F.R. §
1201.157. Alternately, such parties may appeal directly to this court if
willing to waive discrimination issues. Id.Toyama, 481 F.3d at 1365. These separate procedures apply to the mixed case
complaint that Mr. Amirmokri filed with the EEO. After the agency issues its decision on
a mixed case complaint, or 120 days after the date of the EEO filing if a final decision is
not issued within that time, the complainant may appeal to the Merit Systems Protection
Board or file a civil action in district court. 29 C.F.R. § 1614.302(d). The complainant
may not both appeal to the Board and file a civil action. Id.Mr. Amirmokri did not wait until either the EEO had issued a final decision or 120
days had elapsed. Instead, while the EEO proceeding was still pending, he filed an
appeal with the Board that did not include his discrimination claims. If that filing had
raised issues of prohibited discrimination, it would have been a mixed case appeal, and
the Board would have dismissed the appeal without prejudice under 5 C.F.R.
2008-3167 6
§ 1201.154(c). However, because Mr. Amirmokri did not allege discrimination in his
complaint before the Board, that section was inapplicable. Accordingly, there is nothing
in the regulations to which we have been directed that limits the Board’s jurisdiction over
Mr. Amirmokri’s action or our jurisdiction over his petition for review. We therefore turn
to the merits of Mr. Amirmokri’s claim. 1
Substantial evidence supports the Board’s conclusion that the agency would
have taken disciplinary action against Mr. Amirmokri even if he had never engaged in
any whistleblowing activity. The Board rested its conclusion that Mr. Amirmokri had
acted in an inappropriately threatening manner on the oral testimony of two witnesses to
the incident in the cafeteria, the written testimony of two additional witnesses to the
incident, and the oral testimony of Mr. Amirmokri’s supervisor, all of which supported
that conclusion. To the degree that the Board’s conclusions were based on credibility
determinations, they are “virtually unreviewable” by this court. Gibson v. Dep’t of the
Army, 160 F.3d 722, 725 (Fed. Cir. 1998). In addition, the Board’s determination that
the Deputy Director of Nuclear Operations had little or no motive to retaliate was amply
supported by evidence that the supervisor had suffered no adverse consequences from
Mr. Amirmokri’s protected disclosures. We therefore uphold the Board’s decision
denying Mr. Amirmokri’s request for corrective action in this case.
1
Mr. Amirmokri’s pending action in the district court, which he filed after he
filed his petition in this court, is not pertinent to our conclusion that we have jurisdiction
to consider his whistleblowing retaliation claim.
2008-3167 7