Garilynn Smith v. Department of the Army

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2022 MSPB 4Docket No. PH-1221-16-0010-W-1
Garilynn Smith,
Appellant,
v.
Department of the Army,
Agency.
April 13, 2022
Graig P. Corveleyn, Esquire, Hopewell, New Jersey, for the appellant.
Jason Guiliano, Picatinny Arsenal, New Jersey, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The agency has filed a petition for review of the initial decision, which
granted the appellant’s request for corrective action in this individual right of
action (IRA) appeal. For the reasons set forth below, we DENY the petition and
AFFIRM the initial decision AS MODIFIED by this Opinion and Order, still
granting corrective action. We modify the initial decision by applying the clear
and convincing evidence standard for nondisciplinary IRA cases set forth in
Gonzales v. Department of the Navy, 101 M.S.P.R. 248, ¶¶ 11-12 (2006), and by
directly addressing the second and third factors set forth in Carr v. Social
Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999).
2
BACKGROUND
¶2 On July 17, 2006, the appellant’s husband, a U.S. Army sergeant and
explosive ordnance disposal technician, was killed in action in Iraq. Initial
Appeal File (IAF), Tab 20 at 38; Hearing Transcript, Volume 1 (HT1) at 7, 18
(testimony of the appellant). Following her husband’s death, the appellant
attempted to obtain information about the disposition of his remains, which had
been flown to Dover Air Force Base, where they were handled by Air Force
Mortuary Affairs Operations (Dover MAO) personnel. HT1 at 29-39, 121
(testimony of the appellant). On April 21, 2011, 1 Dover MAO’s Deputy
Commander sent the appellant a letter stating that her husband’s remains had been
cremated, further incinerated by a medical disposal company, and sent to a
Virginia landfill. IAF, Tab 20 at 39.
¶3 Shortly after receiving this information, the appellant notified the media
and a policy advisor for U.S. Congressman Rush Holt about the mishandling of
service members’ remains by Dover MAO. Id. at 40; HT1 at 42, 48 (testimony of
the appellant). On December 7, 2011, The Washington Post published an article
about the matter that identified the appellant by name. IAF, Tab 8 at 22-26. The
following week, Representative Holt delivered a speech in the U.S. House of
Representatives in which he explained that he would not vote for the National
Defense Authorization Act of 2012 (NDAA) because, inter alia, it did not
mention the desecration of the remains of deceased service members at Dover
MAO. IAF, Tab 21 at 59-60. In his speech, Representative Holt stated that the
appellant had brought the matter to his attention. Id. at 60.
¶4 During this time, the appellant was working at the agency’s Picatinny
Arsenal (Picatinny) in New Jersey. IAF, Tab 4 at 19-20. The appellant served as
1
Due to an apparent typographical error, the letter is dated April 21, 2008, rather than
April 21, 2011. HT1 at 40-41 (testimony of the appellant).
3
a GS-08 Management Support Assistant with the Office of the Project Manager,
Maneuver Ammunition Systems (PM MAS), at Picatinny from October 2010,
until March 2012, when she transferred to the Naval Sea Systems Command. Id.;
HT1 at 23 (testimony of the appellant). The appellant was unhappy with her new
position, however, and sought to return to PM MAS. IAF, Tab 20 at 77-79; HT1
at 76 (testimony of the appellant). On July 24 and August 14, 2012, respectively,
a PM MAS Management Services Specialist notified the appellant that a GS-09
Executive Assistant (EA) at PM MAS had taken another job and that a vacancy
announcement for the position was forthcoming. IAF, Tab 20 at 70, 74; HT1
at 80 (testimony of the appellant). The agency issued the vacancy announcement
on September 4, 2012. IAF, Tab 4 at 40-46.
¶5 The appellant applied for the position and was one of 14 candidates on the
certificate of eligibles. IAF, Tab 6 at 33-37. Shortly after the vacancy
announcement closed, two additional news reports were published about the
landfill issue: (1) a September 23, 2012 article in The Washington Post, which
identified the appellant by name, included a photograph of her at the landfill, and
stated that she was instrumental in uncovering the scandal; and (2) a
September 29, 2012 article in The Army Times, which also identified the appellant
by name. IAF, Tab 23 at 5-14. In early October, the selecting official canceled
the vacancy announcement. IAF, Tab 17 at 13.
¶6 On October 19, 2012, the agency posted a second vacancy announcement
for the EA position, which included three additional duties. IAF, Tab 4 at 30-36,
38. The appellant applied for the position and was again placed on the certificate
of eligibles; however, the selecting official chose another candidate for the
position. IAF, Tab 6 at 28-32, Tab 21 at 158-59.
¶7 On January 11, 2013, the appellant filed a complaint with the Office of
Special Counsel (OSC) alleging that she was not selected for the EA position in
reprisal for her disclosures concerning the improper disposal of human remains
4
by Dover MAO. IAF, Tab 1 at 13-21. On August 4, 2015, OSC terminated its
inquiry into her allegations and issued her a close-out letter and notice of Board
appeal rights. Id. at 9-12.
¶8 The appellant timely filed this IRA appeal and requested a hearing. IAF,
Tab 1. The administrative judge determined that the Board had jurisdiction over
the appeal. IAF, Tab 11. Following a hearing, the administrative judge issued an
initial decision granting the appellant’s request for corrective action. IAF,
Tab 47, Initial Decision (ID) at 1, 25. He found that the appellant proved by
preponderant evidence that she made protected disclosures regarding Dover
MAO’s improper handling of her husband’s remains, and that these disclosures
were contributing factors in the agency’s decision not to select her for the EA
position. ID at 17-22. The administrative judge also concluded that the agency
failed to prove by clear and convincing evidence that it would not have selected
the appellant for that position in the absence of her protected disclosures. ID
at 22-24.
¶9 The agency has filed a petition for review, 2 alleging that the administrative
judge failed to properly admit evidence at the hearing, relied on “inadmissible”
hearsay evidence in the initial decision, and improperly allowed the appellant to
testify as an expert witness on mortuary affairs, yet denied the agency the
opportunity to present a rebuttal expert witness. Petition for Review (PFR) File,
Tab 3 at 5-16. The agency further alleges that the appellant failed to prove the
contributing factor element of her whistleblower claim and that, in any event, it
proved by clear and convincing evidence that it would not have selected the
2
With its petition for review, the agency submits the hearing transcript in this appeal.
Petition for Review (PFR) File, Tab 3 at 21-550. Because the transcript is already part of
the record, IAF, Hearing Transcript, Volumes 1-2, it does not constitute new evidence. See
Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980).
5
appellant for the EA position absent her disclosures. Id. at 16-20. The appellant
has filed a response to the petition for review. 3 PFR File, Tab 6.
ANALYSIS 4
The Board declines to dismiss the agency’s petition for review for failure to
comply with the administrative judge’s interim relief order.
¶10 When, as here, the appellant was the prevailing party in the initial decision
and the decision granted the appellant interim relief, any petition for review filed
by the agency must be accompanied by a certification that the agency has
complied with the interim relief order. 5 C.F.R. § 1201.116(a). The agency’s
failure to provide the required certification may result in the dismissal of the
agency’s petition for review. 5 C.F.R. § 1201.116(e).
¶11 In her response to the agency’s petition for review, the appellant moves to
dismiss the petition on the grounds that the agency has failed to provide interim
3
On July 6, 2017, the day before the agency filed its petition for review, the appellant
filed a “Motion for Enforcement of Interim Relief” with the Board’s Northeastern
Regional Office, alleging that the agency has failed to comply with the administrative
judge’s interim relief order. Smith v. Department of the Army, MSPB Docket
No. PH-1221-16-0010-C-1, Compliance File (CF), Tab 1. The regional office docketed
the motion as a petition for enforcement. Id. On August 17, 2017, the administrative
judge issued an initial decision in the compliance matter stating that the appellant
should have filed her petition for enforcement with the Clerk of the Board instead of the
regional office because the agency had a petition for review of the initial decision
pending before the Board. CF, Tab 5, Compliance Initial Decision (CID) at 3 (citing
5 C.F.R. § 1201.116). The administrative judge thus dismissed the petition for
enforcement and forwarded it to the Clerk of the Board for joinder with the agency’s
petition for review. CID at 3. The initial decision became final on September 21, 2017,
when neither party filed a petition for review. Id. at 4. We DENY the petition for
enforcement because our regulations do not allow for a petition for enforcement of an
interim relief order. See Ayers v. Department of the Army, 123 M.S.P.R. 11, ¶ 7 (2015);
5 C.F.R. § 1201.182(a)-(b).
4
We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
6
relief as ordered by the administrative judge, and has failed to certify its
compliance with the interim relief order. PFR File, Tab 6 at 5-6; see 5 C.F.R.
§ 1201.116(d). We agree with the appellant that the agency has failed to show
that it has complied with the administrative judge’s interim relief order. The
agency’s petition for review did not include a certification that the agency had
complied with the interim relief order, 5 and the agency has not presented any
evidence of compliance. Moreover, although it had the opportunity to do so, the
agency did not reply to the appellant’s response to the petition for review. Thus,
it has not challenged the appellant’s allegations that it failed to provide interim
relief. 6
¶12 Although the Board may dismiss an agency’s petition for review if the
agency fails to establish its compliance with the interim relief order, it need not
do so. Kolenc v. Department of Health & Human Services, 120 M.S.P.R. 101,
¶ 11 (2013). We exercise our discretion in this case not to dismiss the petition for
review because the issue of the agency’s compliance with the interim relief order
is now moot by virtue of our final decision ordering corrective action. See Elder
v. Department of the Air Force, 124 M.S.P.R. 12, ¶ 20 (2016).
5
As the appellant notes on review, the agency does not mention interim relief in its
petition for review. PFR File, Tab 6 at 6; see generally PFR File, Tab 1.
6
Although the agency has not addressed the compliance issue, the record in the
compliance matter indicates that the appellant returned to work with the agency as a
GS-09 EA on August 7, 2017. CF, Tab 4. This does not demonstrate full compliance
with the interim relief order, however, as the order directed the agency to appoint the
appellant to the GS-09 EA position effective as of the date of the initial decision, i.e.,
May 19, 2017. ID at 1, 26.
7
The appellant made protected disclosures.
¶13 Under the Whistleblower Protection Enhancement Act, at the merits stage
of the appeal, the appellant must prove by preponderant evidence 7 that she made a
protected disclosure under 5 U.S.C. § 2302(b)(8), or engaged in activity protected
by 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and that such disclosure or
activity was a contributing factor in a personnel action taken against her.
5 U.S.C. § 1221(e)(1); Lu v. Department of Homeland Security, 122 M.S.P.R.
335, ¶ 7 (2015). If the appellant meets that burden, the agency is given an
opportunity to prove by clear and convincing evidence 8 that it would have taken
the same personnel action absent the protected disclosure or activity. 5 U.S.C.
§ 1221(e)(1)-(2); Lu, 122 M.S.P.R. 335, ¶ 7.
¶14 A protected disclosure is a disclosure that an appellant reasonably believes
evidences a violation of any law, rule, or regulation, gross mismanagement, a
gross waste of funds, an abuse of authority, or a substantial and specific danger to
public health or safety. 5 U.S.C. § 2302(b)(8)(A); Parkinson v. Department of
Justice, 874 F.3d 710, 713 (Fed. Cir. 2017). A reasonable belief exists if a
disinterested observer with knowledge of the essential facts known to and readily
ascertainable by the appellant could reasonably conclude that the actions of the
Government evidence one of the categories of wrongdoing listed in
section 2302(b)(8)(A). Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999).
The appellant need not prove that the matter disclosed actually established one of
the types of wrongdoing listed under section 2302(b)(8)(A); rather, the appellant
7
Preponderant evidence is “[t]he degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue.” 5 C.F.R. § 1201.4(q).
8
Clear and convincing evidence is “that measure or degree of proof that produces in the
mind of the trier of fact a firm belief as to the allegations sought to be established.”
5 C.F.R. § 1209.4(e).
8
must show that the matter disclosed was one which a reasonable person in her
position would believe evidenced any of the situations specified in 5 U.S.C.
§ 2302(b)(8). Chavez v. Department of Veterans Affairs, 120 M.S.P.R. 285, ¶ 18
(2013).
¶15 Following the hearing in this appeal, the administrative judge issued a close
of record order directing the appellant to submit a brief addressing why she
believed that her disclosure reported a type of wrongdoing listed in 5 U.S.C.
§ 2302(b)(8). IAF, Tab 37. In response, the appellant asserted that Dover
MAO’s practice of sending service members’ remains to a landfill violated
Department of Defense (DOD) Directive 1300.22, Mortuary Affairs Policy,
paragraph 4.2, which provides that the remains of all military members “will be
handled with the reverence, care, and dignity befitting them and the
circumstances.” IAF, Tab 39 at 20.
¶16 The administrative judge provided the agency the opportunity to respond to
the appellant’s brief, and it did so. IAF, Tabs 37, 45. In its post-hearing brief,
the agency argued that the appellant did not make a protected disclosure because
the DOD directive cited by the appellant does not clearly state that what occurred
with the ashes in this case violated that directive or any law, policy, or regulation.
IAF, Tab 45 at 5-6.
¶17 The administrative judge agreed with the appellant, and found that
“dumping the ashes of [service members] into a landfill” fails to accord those
remains the “reverence, care and dignity” required by the DOD directive. ID
at 19-20. Therefore, the administrative judge found that the appellant made a
protected disclosure by reporting conduct that violated this directive. ID
at 18-20.
¶18 In the alternative, the administrative judge found that, even if Dover MAO
did not violate the DOD directive, the appellant’s disclosures were nonetheless
protected because she established that she reasonably believed that Dover MAO
9
had committed some violation of law, rule, or regulation when it dumped portions
of her husband’s remains in a Virginia landfill. ID at 20-21. The administrative
judge noted that all of the agency’s managerial witnesses, including a U.S. Army
Major General, testified that they were appalled to learn how the appellant’s
husband’s remains had been handled, and Representative Holt also believed that
Dover MAO had treated service members’ remains in a most undignified manner.
ID at 19-21. Based on this evidence and hearing testimony, the administrative
judge found that a disinterested observer could reasonably conclude that the
actions the appellant disclosed evidenced a violation of a law, rule, or regulation.
ID at 21. Therefore, the administrative judge found, and we agree, that the
appellant’s disclosures are protected. Id.The appellant proved contributing factor under the knowledge/timing test.
¶19 To prevail in an IRA appeal, an appellant also must prove by preponderant
evidence that her protected disclosures were a contributing factor in a personnel
action. Scoggins v. Department of the Army, 123 M.S.P.R. 592, ¶ 21 (2016). The
term “contributing factor” means any disclosure that affects an agency’s decision
to threaten, propose, take, or not take a personnel action regarding the individual
who made the disclosure. Id.; 5 C.F.R. § 1209.4(d). The most common way of
proving the contributing factor element is the “knowledge/timing test.” Scoggins,
123 M.S.P.R. 592, ¶ 21. Under that test, an appellant may prove the contributing
factor element through evidence that the official taking the personnel action knew
of the disclosure and took the personnel action within a period of time such that a
reasonable person could conclude that the disclosure was a contributing factor in
the personnel action. Id. Once an appellant has satisfied the knowledge/timing
test, she has demonstrated that a protected disclosure was a contributing factor in
a personnel action. Id.¶20 Regarding the knowledge prong of the test, the administrative judge found
that the evidence presented at the hearing shows that Picatinny management
10
officials were aware of the appellant’s disclosures since at least the spring of
2011. ID at 21. As for the timing prong of the test, the administrative judge
found that the appellant’s disclosures, and the news reports about those
disclosures, continued until September 2012, i.e., approximately 1 month before
the selecting official decided not to select the appellant for the EA position. 9 Id.;
see Scoggins, 123 M.S.P.R. 592, ¶ 25 (finding that a personnel action that occurs
within 2 years of the appellant’s disclosure satisfies the timing component of the
knowledge/timing test). Therefore, the administrative judge found, the appellant
clearly satisfied the knowledge/timing test. ID at 22.
¶21 The agency challenges this finding on review; however, it does not dispute
that Picatinny management officials knew of the appellant’s disclosures before
they decided not to select her. PFR File, Tab 3 at 16 (stating that the agency
“freely admits” that it was aware of the appellant’s alleged whistleblowing prior
to the personnel action in question); IAF, Tab 24 at 4-5 (same). It also does not
dispute that the length of time between the appellant’s disclosures and her
nonselection was sufficiently short to satisfy the timing prong of the test.
PFR File, Tab 3 at 16-18. The agency contends that the appellant nonetheless
failed to prove contributing factor because the knowledge/timing test also
“requires a reasonable person standard as to that knowledge being a contributing
factor to the personnel action” and the appellant has not met that standard. Id.
at 16.
¶22 This argument is unpersuasive. As previously indicated, once an appellant
has satisfied the knowledge/timing test, she has met her burden of proving
contributing factor. Scoggins, 123 M.S.P.R. 592, ¶ 21. The appellant clearly has
9
Although it is unclear exactly when the agency decided not to select the appellant for
the EA position, the agency contends that the appellant’s nonselection occurred on or
about October 31, 2012. IAF, Tab 4 at 8.
11
satisfied that test, as it is undisputed that agency management officials knew of
the appellant’s whistleblowing disclosures and made the decision not to select her
within a period of time sufficiently short to satisfy the knowledge/timing test.
Under these circumstances, we agree with the administrative judge that the
appellant proved that her protected disclosures were a contributing factor in her
nonselection. ID at 21.
The agency failed to show by clear and convincing evidence that it would have
nonselected the appellant for the EA position absent her protected disclosures.
¶23 When, as in this case, an appellant shows by preponderant evidence that she
made protected disclosures and that those disclosures were a contributing factor
in the decision to take a personnel action, the burden shifts to the agency to prove
by clear and convincing evidence that it would have taken the personnel action in
the absence of the whistleblowing. See 5 U.S.C. § 1221(e)(2); Scoggins,
123 M.S.P.R. 592, ¶ 26. In determining whether an agency has met its burden,
the Board generally considers 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.
Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999).
Factor (1) does not apply straightforwardly to this case, however, as the personnel
action at issue here is not disciplinary in nature, and therefore does not require
supporting evidence of misconduct. Gonzales, 101 M.S.P.R. 248, ¶ 12. Instead,
it is appropriate to consider instead the broader question of whether the agency
had legitimate reasons for the appellant’s nonselection. Id.; see Schnell v.
Department of the Army, 114 M.S.P.R. 83, ¶¶ 17, 23 (2010) (applying Gonzales
in adjudicating a nonselection for a temporary position). The U.S. Court of
Appeals for the Federal Circuit has further clarified that “[e]vidence only clearly
12
and convincingly supports a conclusion when it does so in the aggregate
considering all the pertinent evidence in the record, and despite the evidence that
fairly detracts from that conclusion.” Whitmore v. Department of Labor,
680 F.3d 1353, 1368 (Fed. Cir. 2012).
¶24 Regarding the first Carr factor, the administrative judge found that the
agency’s explanation for not selecting the appellant lacked credibility because it
was “riddled with inconsistencies” and that the agency “utterly failed to justify its
selection decision.” ID at 23-24. In making this finding, the administrative judge
noted that the selecting official and two other management officials testified
during the hearing that the appellant was not suited for the EA position for the
following reasons: (1) the appellant had problems getting along with coworkers;
(2) she had “leave usage” issues; and (3) she frequently demanded teleworking
arrangements. ID at 24. The administrative judge found that none of these
reasons for refusing to select the appellant were supported by the evidentiary
record. Id. In particular, the administrative judge found that the agency’s claim
that the appellant had trouble getting along with coworkers was directly
contradicted by management in the appellant’s 2010-2011 performance
evaluation, as she received the highest possible rating under the category
“Working Relationships & Communications.” ID at 15, 24; IAF, Tab 22 at 89.
¶25 The administrative judge further noted that the appellant’s second-line
supervisor, who criticized the appellant’s ability to work with other
administrative assistants and cast doubt on her leadership ability during the
hearing, praised the appellant’s performance on her evaluation form. ID at 15.
As the administrative judge noted, the supervisor stated in his Senior Rater
comments that the appellant could be relied on to train and assist senior
administrative assistants on various tasks, had the capability and desire to excel
in positions well above the administrative level, and had outstanding potential to
succeed in a position of higher authority and responsibility. ID at 15-16; IAF,
13
Tab 22 at 89. The administrative judge also found management’s purported
concern about the appellant’s request for telework “an odd one,” given that she
made the request so that she could work for the agency while she was out on
maternity-related sick leave, instead of being unable to make any work-related
contributions during that time. ID at 14.
¶26 On review, the agency argues that, because the appellant was applying for a
GS-09 position and the performance evaluation pertains to her performance in a
GS-08 position, the administrative judge should have given less weight to the
appellant’s performance evaluation and more weight to the testimony of agency
officials regarding their concerns about the appellant’s potential for
accomplishing GS-09 level work. PFR File, Tab 3 at 18. This argument is
unpersuasive. If the appellant had difficulty getting along with others, that
should have been reflected in her performance evaluation. Her excellent rating in
all categories, including “Working Relationships & Communications,” and the
praise she received from agency management in her performance evaluation,
severely undermine the legitimacy of the agency’s reasons for its decision not to
select her for the EA position. Accordingly, we agree with the administrative
judge’s assessment of the first Carr factor and find that the agency did not have
legitimate reasons for not selecting the appellant.
¶27 We next consider the second Carr factor, the strength of any motive to
retaliate on the part of any agency officials who were involved in the decision in
question. As the administrative judge noted in the initial decision, although the
appellant’s protected disclosures exposed misconduct by personnel from the
Department of the Air Force, rather than the Department of the Army, the
evidence shows that the ramifications of the appellant’s disclosures were not
confined to the Air Force. ID at 22. For example, the record contains a
December 6, 2011 email from a Washington Post reporter notifying the appellant
of DOD personnel’s reaction to a Facebook post in which she stated that an
14
article about Dover MAO would be published soon. IAF, Tab 23 at 299. In the
email, the reporter states that the appellant “gave some DoD people a heart
attack” and that DOD personnel were “really worried” about the upcoming
article. Id. Thus, as the administrative judge found, the record shows that the
appellant’s disclosures were a source of anxiety for DOD personnel other than Air
Force officials. ID at 22. Further, because Representative Holt decided not to
vote for the NDAA of 2012, in part due to the appellant’s disclosures, and the
NDAA provides funding to all DOD agencies, those disclosures arguably
jeopardized funding for every agency in DOD. Id.; IAF, Tab 21 at 59-60.
¶28 In evaluating the second Carr factor, we also have considered the court’s
decision in Whitmore, 680 F.3d at 1371, which cautioned the Board against taking
an unduly dismissive and restrictive view of retaliatory motive. The Whitmore
court stated that, “[t]hose responsible for the agency’s performance overall may
well be motivated to retaliate even if they are not directly implicated by the
disclosures, and even if they do not know the whistleblower personally, as the
criticism reflects on them in their capacities as managers and employees.” Id.
at 1370. Applying this broader view of retaliatory motive, the court has found
that an official may have a retaliatory motive even if he is not “directly involved
in the work at issue in an employee’s disclosure.” Miller v. Department of
Justice, 842 F.3d 1252, 1261-62 (Fed. Cir. 2016). In another case, an agency
official took a personnel action against a whistleblower employee, but that
official was not personally implicated in the employee’s disclosures, which
concerned congressional testimony by a different agency official. The court
determined that the Board’s administrative judge erred by failing to consider
whether the agency official who took the personnel action nonetheless had a
“professional retaliatory motive” against the employee because his disclosures
regarding the alleged inaccuracy of an agency Under Secretary’s congressional
testimony “implicated the capabilities, performance, and veracity of [agency]
15
managers and employees, and implied that the [agency] deceived [a] Senate
Committee.” Robinson v. Department of Veterans Affairs, 923 F.3d 1004,
1008-09, 1018-19 (Fed. Cir. 2019).
¶29 In this matter, although none of the agency officials involved in the
decision not to select the appellant was directly implicated in the mishandling of
service members’ remains, the misconduct the appellant disclosed was egregious
and her disclosures generated a significant amount of negative publicity for the
DOD. Given these circumstances, the appellant’s disclosures reflected poorly on
DOD officials as representatives of the general institutional interests of the DOD,
which is sufficient to establish a retaliatory motive. See Whitmore, 680 F.3d
at 1370; Chambers v. Department of the Interior, 116 M.S.P.R. 17, ¶ 69 (2011).
We therefore find that the agency officials involved in the decision not to select
the appellant had some motive to retaliate against her for her disclosures.
¶30 As for the third Carr factor, there is no record evidence concerning the
agency’s treatment of similarly situated nonwhistleblowers. As previously
explained, it is the agency that bears the burden of proving that it would have
taken the same action in the absence of the appellant’s protected activity. Alarid
v. Department of the Army, 122 M.S.P.R. 600, ¶ 14 (2015). While the agency
does not have an affirmative burden to produce evidence concerning each and
every Carr factor, and “the absence of any evidence relating to Carr factor three
can effectively remove that factor from the analysis,” the failure to produce such
evidence if it exists “may be at the agency’s peril,” and “may well cause the
agency to fail to prove its case overall.” Whitmore, 680 F.3d at 1374-75.
Moreover, because the agency bears the burden of proof at this stage of the
analysis, when the agency fails to introduce relevant comparator evidence, the
third Carr factor cannot favor the agency. Smith v. General Services
Administration, 930 F.3d 1359, 1367 (Fed. Cir. 2019); Siler v. Environmental
Protection Agency, 908 F.3d 1291, 1299 (Fed. Cir. 2018). Here, the agency has
16
failed to proffer any evidence pertaining to Carr factor three. Under these
circumstances, Carr factor 3 cannot weigh in the agency’s favor.
¶31 We therefore find that the agency did not have legitimate reasons for its
failure to select the appellant for the EA position, that the agency officials
involved in the decision had some motive to retaliate, and that the agency’s
failure to provide evidence in support of Carr factor 3 does not favor the agency.
Thus, we agree with the administrative judge that the agency failed to prove by
clear and convincing evidence that it would have taken the same action absent the
appellant’s protected disclosures. 10 ID at 24. We therefore agree with the
administrative judge’s determination that the appellant is entitled to corrective
action. Id.The agency’s evidentiary arguments provide no basis to disturb the initial
decision.
¶32 The agency also argues on review that the administrative judge did not
follow “required evidentiary procedures” and erred in relying on documents that
were not properly admitted as evidence during the hearing. PFR File, Tab 3 at 5,
7-11. In addition, the agency claims that the administrative judge improperly
considered hearsay evidence, such as excerpts from Representative Holt’s speech.
Id. These arguments are unavailing, as it is well settled that strict adherence to
the Federal Rules of Evidence and of Civil Procedure is not mandatory in
administrative proceedings, Crawford v. Department of the Treasury, 56 M.S.P.R.
10Although the administrative judge did not explicitly address the second and third
Carr factors in his analysis, we find it unnecessary to remand the appeal because
resolution of the clear and convincing issue in this case does not require additional
credibility determinations or further development of the record. Cf. Shibuya v.
Department of Agriculture, 119 M.S.P.R. 537, ¶ 37 (2013) (finding that the
administrative judge was in the best position to reweigh the evidence on the clear and
convincing issue because she was the one who heard the live testimony and made
credibility determinations).
17
224, 233 (1993), and hearsay evidence is admissible in Board proceedings,
Shannon v. Department of Veterans Affairs, 121 M.S.P.R. 221, ¶ 15 (2014).
¶33 The agency further argues on review that the administrative judge erred by
allowing the appellant to testify as an expert in Air Force mortuary affairs policy,
but not granting its post-hearing request to present rebuttal expert testimony from
Dover MAO personnel familiar with the regulations at issue and the handling of
remains by the Air Force. PFR File, Tab 3 at 11-16; IAF, Tab 45. The agency
asserts that such testimony was necessary for the appellant to prove that Dover
MAO’s handling of service members’ remains violated a law, rule, or regulation.
PFR File, Tab 3 at 15.
¶34 An administrative judge has wide discretion to control the proceedings
before him, to receive relevant evidence, and to ensure that the record on
significant issues is fully developed. See Tisdell v. Department of the Air Force,
94 M.S.P.R. 44, ¶ 13 (2003); 5 C.F.R. § 1201.41(b). The hearing transcript
shows that the appellant did not testify as an expert witness in mortuary affairs.
Hearing Transcript, Volume 2 (HT2) at 517-26 (testimony of the appellant).
Rather, the administrative judge merely questioned the appellant as to her
knowledge of Dover MAO policy regarding the disposition of service members’
remains. Id. at 519-26 (testimony of the appellant). This line of questioning was
entirely appropriate and agency counsel did not object to it during the hearing.
Id. Also, agency counsel had the opportunity to question the appellant about her
testimony, but chose not to do so. HT2 at 526 (testimony of the appellant).
¶35 Further, even assuming that expert testimony was necessary for the
appellant to establish that Dover MAO’s mishandling of service members’
remains violated a law, rule, or regulation, the absence of such testimony
provides no reason to disturb the initial decision because it did not affect the
outcome of the case. See Karapinka v. Department of Energy, 6 M.S.P.R. 124,
127 (1981) (explaining that an administrative judge’s procedural error is of no
18
legal consequence unless it is shown to have adversely affected a party’s
substantive rights). As previously discussed, the appellant was not required to
prove that a violation of law, rule, or regulation had occurred. Rather, she was
required to prove that a disinterested observer could reasonably conclude that the
actions of Dover MAO personnel evidenced a violation of a law, rule, or
regulation. Lachance, 174 F.3d at 1381. Satisfying this standard did not require
expert testimony.
The agency has failed to prove its allegation of judicial bias.
¶36 The agency also raises an apparent claim of bias on review, alleging that the
administrative judge “was obviously sympathetic” to the appellant and was so
outraged by the mishandling of her husband’s remains that he decided to rule
against the agency, regardless of the evidence. PFR File, Tab 3 at 5, 14. It
further contends that, in the initial decision, the administrative judge engaged in a
“shocking personal attack” on agency counsel when addressing the agency’s
argument in its post-hearing brief that, because DOD Directive 1300.22 does not
specify what qualifies as the “requisite care, reverence, and dignity befitting [the
remains] and the circumstances . . . what we have here is more of a philosophical
or theological debate than anything else.” Id. at 14.
¶37 Although the agency does not specifically identify the administrative
judge’s alleged “personal attack” on agency counsel, it appears to be referring to
the following statement by the administrative judge in response to the above
argument: “The agency should be disabused of the notion that a landfill is a
dignified resting place for the remains of a U.S. Army Soldier who gave his life
in the service of his nation.” ID at 18. This statement is not a personal attack on
agency counsel. Moreover, given the reprehensible manner in which Dover MOA
personnel handled the remains of the appellant’s husband and other service
members, we find the administrative judge’s statement to be a measured and
reasonable response to the agency’s appalling suggestion that dumping service
19
members’ remains in a landfill could ever qualify as “the requisite care,
reverence, and dignity befitting the remains and the circumstances.”
¶38 Further, in making a claim of bias or prejudice against an administrative
judge, a party must overcome the presumption of honesty and integrity that
accompanies administrative adjudicators. Oliver v. Department of
Transportation, 1 M.S.P.R. 382, 386 (1980). An administrative judge’s conduct
during the course of a Board proceeding warrants a new adjudication only if his
comments or actions evidence “a deep-seated favoritism or antagonism that would
make fair judgment impossible.” Bieber v. Department of the Army, 287 F.3d
1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540,
555 (1994)); Smets v. Department of the Navy, 117 M.S.P.R. 164, ¶ 15 (2011),
aff’d per curiam, 498 F. App’x 1 (Fed. Cir. 2012). The agency’s allegations on
review, which do not relate to any extrajudicial conduct by the administrative
judge, neither overcome the presumption of honesty and integrity that
accompanies an administrative judge, nor establish that he showed a deep-seated
favoritism or antagonism that would make fair judgment impossible.
ORDER
¶39 We ORDER the agency to appoint the appellant to the position of Executive
Assistant, GS-03019-09, at Picatinny Arsenal, New Jersey. See Kerr v. National
Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must
complete this action no later than 20 days after the date of this decision.
¶40 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
20
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶41 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and to describe the
actions it took to carry out the Board’s Order. The appellant, if not notified,
should ask the agency about its progress. See 5 C.F.R. § 1201.181(b).
¶42 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision in this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
¶43 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
¶44 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
21
NOTICE TO THE APPELLANT
REGARDING YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE TO THE APPELLANT
REGARDING YOUR RIGHT TO REQUEST
CONSEQUENTIAL DAMAGES
You may be entitled to be paid by the agency for your consequential
damages, including medical costs incurred, travel expenses, and any other
reasonable and foreseeable consequential damages. To be paid, you must meet
the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may
be found at 5 C.F.R. § § 1201.202, 1201.202 and 1201.204. If you believe you
meet these requirements, you must file a motion for consequential damages
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your motion with the office that issued the initial decision on your
appeal.
NOTICE TO THE PARTIES
A copy of the decision will be referred to the Special Counsel “to
investigate and take appropriate action under [5 U.S.C.] section 1215,” based on
the determination that “there is reason to believe that a current employee may
have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(f)(3). Please note
22
that while any Special Counsel investigation related to this decision is pending,
“no disciplinary action shall be taken against any employee for any alleged
prohibited activity under investigation or for any related activity without the
approval of the Special Counsel.” 5 U.S.C. § 1214(f).
NOTICE OF APPEAL RIGHTS 11
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 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
11
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.
23
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
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. ____ , 137 S. Ct. 1975 (2017). If you have a
24
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
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:
25
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. 12 The court of appeals must receive your 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:
12
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.
26
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.
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:
/s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1‑7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a-g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.