Anthony Daquino v. Department of Veterans Affairs

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY J. DAQUINO, DOCKET NUMBERS
Appellant, DE-1221-12-0487-W-2
DE-1221-13-0087-W-2
v.
DEPARTMENT OF VETERANS
AFFAIRS, DATE: February 27, 2023
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Eric L. Pines, Esquire, and Stephen Goldenzweig, Esquire, Houston, Texas,
for the appellant.
Mark S. Jaffe, Esquire, Albuquerque, New Mexico, for the appellant.
Steven Snortland, Esquire, Los Angeles, California, for the agency.
Deanna Livingston, Albuquerque, New Mexico, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
Member Leavitt issues a separate dissenting opinion.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action based on alleged whistleblower reprisal .
For the reasons discussed below, we GRANT the appellant’s petition for rev iew.
We AFFIRM the initial decision IN PART, VACATE the initial decision IN
PART and REMAND the case to the Board’s field office for further adjudication
in accordance with this Remand Order.
BACKGROUND
¶2 At all times relevant to this appeal, the appellant was employed as a nu rse
in the gastrointestinal (GI) studies section at an agency medical center in
Albuquerque, New Mexico. After joining the GI section in 2009, the appellant
became concerned about some practices within the section. The appellant
initially reported those concerns within his chain of command at the Albuquerque
facility, but after receiving what he considered inadequate responses to those
complaints, he forwarded his complaints regarding the GI section in Albuquerque
to the agency’s Chief Nurse Executive. MSPB Docket No. DE-1221-12-0487-
W-2, Appeal File (0487W2 AF), Tab 105 at 145-46; January 13, 2014 Hearing
Transcript (HT) (1/13/14 HT) at 59-61 (testimony of the appellant).
¶3 In response to the appellant’s complaints, the Chief Nurse Executive sent
representatives of the Veterans Integrated Service Network (VISN) to
Albuquerque. 1/13/14 HT at 65-66 (testimony of the appellant). The appellant’s
supervisors understood that his complaints were the impetus for the VISN visit.
January 14, 2014 HT (1/14/14 HT) at 93 (testimony of the proposing official);
January 16, 2014 HT (1/16/14 HT) at 182-83 (testimony of the supervisor). In
December 2009, after the VISN visit to Albuquerque, the Chief Nurse Executive
sent the appellant a letter informing him that corrective actions would be taken in
response to some of his complaints. 0487W2 AF, Tab 105 at 148. The appellant
testified that he felt his supervisor began scrutinizing and criticizing his
3
performance and giving him less favorable work assignments following t he VISN
visit. 1/13/14 HT at 66-69 (testimony of the appellant).
¶4 In February 2010, in response to an anonymous complaint to the agency’s
Inspector General (IG), the regional VISN manager requested that the Associate
Director of Patient Care from another agency medical center visit the
Albuquerque facility to conduct an inquiry. 0487W2 AF, Tab 105 at 151. The
appellant was one of more than 50 employees who provided information as part
of that inquiry, but the resulting report did not identify the appell ant, or any other
employee, by name as the source of any particular complaint. Id. at 151-65.
¶5 Also in February 2010, the appellant’s immediate supervisor observed that
he had violated privacy standards by leaving a computer unattended. She
testified that she warned the appellant that he would receive a written counseling
if he did the same thing again. 1/16/14 HT at 152 (testimony of the supervisor).
¶6 The following month, a coworker of the appellant allegedly overheard a
conversation among a group of GI section doctors and the appellant’s supervisor.
According to the coworker, one of the doctors 2 asked, “Why don’t we get rid of
him?” The supervisor allegedly responded, “There is a thing called the
Whistleblower Act.” 3 The coworker reported the incident in writing,
0487W2 AF, Tab 106 at 18, which report the appellant provided to two senior
officials at the Albuquerque facility, but no formal investigation of the alleged
conversation took place. 1/13/14 HT at 83 (testimony of the appellant); 1/14/14
HT at 10, 78 (testimony of the proposing official); 159 (testimony of the GI
section chief). The appellant’s union subsequently filed a grievance on his behalf
asserting that the agency failed to investigate the incident adequately. 1/13 /14
HT at 103 (testimony of the appellant).
2
The coworker did not identify the person who made this statement, and he testified to
not knowing whether it was a doctor. 1/13/14 HT at 19 (testimony of the coworker).
3
The supervisor denies that this conversation ever took place. 1/16/14 HT at 161
(testimony of the supervisor).
4
¶7 A few weeks after the alleged conversation involving “the Whistleblower
Act,” the appellant sent an email to the Federal Bureau of Investigation (FBI)
titled “Safety Concerns Regarding Middle Eastern Origin MDs at the
[New Mexico] VA Hospital in Albuquerque.” 0487W2 AF, Tab 106 at 180-81.
In the email, the appellant described his history of reporting safety concerns in
the GI section before reporting the alleged conversation among the GI section
doctors and his supervisor. Id. at 180. The appellant then noted that there were
at least three GI doctors who were “of Middle Eastern origin,” and that one of
them was a citizen of Syria (which, he noted, was on the list of state sponsors of
terrorism). However, he acknowledged that there was no particular reason to
believe any of those three doctors was the person who asked “Why don’t we get
rid of him?” Id. The appellant asked the FBI to investigate who asked that
question, what was meant by it, and to whom it referred. Id. He indicated that he
had struggled with whether to report this matter to the FBI, but explained that
“the recent events at Fort Hood and the CIA compound in Afghanistan,” both of
which were carried out by “Middle East Origin DOCTORS” (capitalization in
original) 4 led him to report it. Id. at 180-81.
¶8 In March 2010, the supervisor observed that the appellant walked away
from a computer to respond quickly to another nurse’s call for help, but in doing
so he left unsecured a computer containing patient informa tion. The appellant
received a written counseling for these actions on April 2, 2010, just over a
month after the incident. 0487W2 AF, Tab 104 at 5.
4
“Fort Hood” is an apparent reference to a November 2009 mass shooting carried out in
Texas by an Army psychiatrist. See History, Army major kills 13 people in Fort Hood
shooting spree, https://www.history.com/this-day-in-history/army-major-kills-13-
people-in-fort-hood-shooting-spree (last visited Feb. 27, 2023). “The CIA compound in
Afghanistan” is an apparent reference to a December 2009 suicide bombing carried out
by a Jordanian physician. See CNN, Jordanian doctor called double agent behind CIA
attack, http://www.cnn.com/2010/WORLD/meast/01/05/jordan.cia.bombing/index.html
(last visited Feb. 27, 2023).
5
¶9 During a staff meeting on April 15, 2010, the appellant made comments that
largely mirrored the substance of his March 2010 email to the FBI, including a
reference to state-sponsored terrorism. While the substance of the appellant’s
comments at the staff meeting were not generally in dispute, there were
conflicting accounts of the manner in which he made them. One attendee
described the appellant’s comments as an “outburst,” 1/14/14 HT at 162
(testimony of the GI section chief), while the appellant claimed they were made
in a “passive informational tone,” 1/13/14 HT at 205 (testimony of the appellant).
Later the same day, the appellant’s supervisor gave him a letter recommending
that he contact the Employee Assistance Program (EAP) because of “deficiencies
in your performance and/or conduct.” 1/13/14 HT at 97 (testimony of the
appellant); 0487W2 AF, Tab 106 at 20. The date on the letter was April 13, 2010,
2 days before the staff meeting. 0487W2 AF, Tab 106 at 20.
¶10 On May 25, 2010, the appellant received a letter proposing to admonish him
for disrespectful conduct during the April 15, 2010 staff meeting. 0487W2 AF,
Tab 104 at 7-8. The appellant filed a written response to the proposal, with
attachments that included statements of support from coworkers. 0487W2 AF,
Tab 105 at 5-26. In a decision letter delivered to the appellant on July 12, 2010,
the deciding official sustained the charge but mitigated the proposed
admonishment to a written counseling. Id. at 28-29.
¶11 The appellant testified that during the remainder of 2010 and early 2011, he
received increasingly unfavorable work assignments. 1/13 /14 HT at 127
(testimony of the appellant). On September 15, 2011, the appellant’s counsel sent
a letter to agency counsel detailing what the appellant believed to be a pattern of
intimidation and retaliation against him. 0487W2 AF, Tabs 102-03.
¶12 On October 31, 2011, the appellant had a conversation with a coworker (a
staff nurse) near the beginning of his shift. Although the exact words they used
are in dispute, both testified that the staff nurse asked the appellant why he
looked so upset, and the appellant replied that he had been having thoughts about
6
harming or killing his supervisor and that he would be taking leav e starting the
following day to seek medical care. 1/13/14 HT at 131-32 (testimony of the
appellant); 1/16/14 HT at 75-76, 84-85 (testimony of the staff nurse).
¶13 The staff nurse did not immediately report the appellant’s comments to
management or law enforcement. She testified that she did not feel the appellant
was an immediate threat, although she did feel “his emotions were getting o ut of
control, and it needed to be addressed.” 1/16/14 HT at 79 (testimony of the staff
nurse). Within the hour, she asked a registered nurse whom she considered a
mentor, whose opinion she sought in part because he was a veteran like the
appellant, whether she should take the appellant’s comment seriously and whether
she should report it. Id. at 96. The registered nurse advised her to report the
comment, although he agreed that it did not seem to represent an immediate
threat. Id. at 97. About an hour later, she told a GI nurse that she was planning
to report the comment but did not think she needed to do so immediately. Id.The GI nurse testified that she felt that anyone aware of the appellant’s comments
was obliged to report them, repeatedly urged the staff nurse to do so, and
eventually, reported the comments herself. Id. at 117-18 (testimony of the
GI nurse).
¶14 The supervisor learned of the appellant’s comments from the GI nurse a few
hours after the appellant spoke to the staff nurse. 1/16/14 HT at 169 (testimony
of the supervisor). The supervisor’s understanding was that the appellant told the
staff nurse he had been thinking “a lot” about killing her. 5 The supervisor
reported the matter to agency police. 0487W2 AF, Tab 106 at 30. As the
appellant was leaving at the end of his regular shift that day, the supervisor gave
the appellant an EAP letter. 6 1/16/14 HT at 172 (testimony of the supervisor).
5
The staff nurse does not recall the appellant saying he had been having those thoughts
“a lot.” 1/16/14 HT at 93 (testimony of the staff nurse).
6
The supervisor was instructed by human resources to give EAP letters to not only the
appellant, but also to the staff nurse, the registered nurse, and the GI nurse, the
7
She said he was not angry or disrespectful when she gave him the letter, and he
did not make her feel unsafe. Id. at 224.
¶15 The appellant did not report to work the following day because he had
approved leave. Effective November 1, 2011, the agency placed the appellant in
a paid nonduty status pending an investigation into the even ts of the previous day.
0487W2 AF, Tab 105 at 57. The agency also barred the appellant from entering
the grounds of the Albuquerque facility during his authorized absence, except as
necessary to seek medical care or under other specified conditions. Id. The
appellant learned of his status when he telephoned his supervisor on November 2,
2011. 1/13/14 HT at 138 (testimony of the appellant).
¶16 On November 22, 2011, the Director of the Albuquerque facility appointed
three employees to an Administrative Investigative Board (AIB) to ascertain the
veracity of reports that the appellant stated his intention to harm his supe rvisor.
0487W2 AF, Tab 131 at 1. The Director also asked the AIB “to report whether
other such statements or related statements have been made that w ould potentially
constitute a danger to employee safety.” Id. The Director also instructed the AIB
to address the following question: “Whether a nurse assigned to the GI clinic
represents a danger to the safety of the GI clinic supervisor or other staff .” Id.The AIB was not specifically directed to recommend what discipline, if any, the
appellant should receive for his comments. January 15, 2014 HT (1/15/14 HT)
at 189 (testimony of the AIB investigation chair).
¶17 During its investigation, the AIB reviewed a number of documents and
interviewed 20 agency employees. 0487W2 AF, Tab 106 at 126. In its report
dated March 19, 2012, the AIB made findings regarding the appellant’s
conversations on October 31, 2011, with the staff nurse and a separate
conversation later the same morning with the registered nurse to whom the
appellant allegedly stated that he had written the supervisor’s name on fruit,
colleagues who were aware of the appellant’s comments earlier that day. 1/16/14 HT
at 172 (testimony of the supervisor).
8
which he then shot with a gun for target practice. Id. at 131. The AIB concluded,
inter alia, that the appellant’s statements to the staff nurse and the registered
nurse on October 31, 2011, violated the agency’s policy against “[b]ehavior that
is hostile or of a volatile nature (e.g., verbal or physical aggression).” Id. at 134.
The AIB found that, although it was not clear how credible a threat the appellant
actually was to the supervisor, “[s]ignificant administrative action” was
warranted for his comments. Id. at 136. 7
¶18 On June 8, 2012, the agency proposed to remove the appellant based on the
AIB’s findings. 0487W2 AF, Tab 105 at 31. Specifically, the agency charged the
appellant with “Inappropriate behavior causing disruption in the workplace” for
his comments to the staff nurse about having thoughts of killing the supervisor.
Id. The agency also charged the appellant with “Inappropriate behavior” for his
comments to the registered nurse about writing the supervisor’s name on frui t he
used for target practice. Id.¶19 The appellant, through counsel, responded to the prop osed removal in
writing on June 22, 2012. 0487W2 AF, Tab 105 at 72-121. On July 27, 2012, the
appellant and his counsel met with the deciding official. During that meeting, the
appellant informed the deciding official that he was going to retire. 1/13/14 HT
at 146 (testimony of the appellant). The appellant retired effective July 31, 2012,
before any final action was taken regarding his proposed removal. MSPB Docket
No. DE-1221-12-0487-W-1, Appeal File (0487W1 AF), Tab 13 at 26.
¶20 The appellant filed a complaint with the Office of Special Counsel (OSC)
alleging whistleblower reprisal in August 2010 (almost 2 years before his
proposed removal). 0487W1 AF, Tab 21. He filed his first individual right of
action (IRA) appeal, MSPB Docket No. DE-1221-12-0487-W-1, with the Board in
7
The AIB faulted the agency for failing to respond more quickly to the appellant’s
comments and for having the supervisor approach the appellant alone to give him the
EAP letter later the same day. 0487W2 AF, Tab 106 at 134-35. The AIB also
concluded that agency managers in the GI section “may have contributed to the
atmosphere of tension and distrust” in the section. Id. at 136.
9
August 2012 (about a month after he retired). 0487W1 AF, Tab 1. In his first
IRA appeal, the appellant raised the April 2010 written reprimand, the May 2010
letter of admonishment, and the June 2012 proposed removal as alleged
retaliatory personnel actions. 0487W2 AF, Tab 23 at 5. The appellant also
alleged in his first IRA appeal that his retirement was involuntary, although it did
not appear that he had exhausted that alleged personnel action before OSC prior
to filing the first IRA appeal. 0487W1 AF, Tab 28 at 2. In November 2012, the
appellant filed a second IRA appeal, MSPB Docket No. DE-1221-13-0087-W-1,
in which he again alleged that his retirement was involuntary. MSPB Docket
No. DE-1221-13-0087-W-1, Appeal File (0087W1 AF), Tab 1. He filed a second
OSC complaint on November 25, 2012, in which he specifically raised his alleged
involuntary retirement and the access restrictions. 0487W1 AF, Tab 23 at 37.
Because the appellant’s second OSC complaint was pending, the administrative
judge dismissed the second IRA appeal without prejudice to refiling.
0087W1 AF, Tab 9, Initial Decision. The administrative judge simultaneously
dismissed the first IRA appeal without prejudice so that both appeals could be
heard together. 0487W1 AF, Tab 28, Initial Decision. After both appeals were
timely refiled, the administrative judge joined the two IRA appeals. 0487W2 AF,
Tab 23. 8
¶21 After holding a hearing, the administrative judge issued an initial decision
denying the appellant’s request for corrective action. 0487W2 AF, Tab 133,
8
The Board’s field office also docketed a chapter 75 appeal , MSPB Docket
No. DE-0752-14-0122-I-1, to address the appellant’s involuntary retirement claim.
However, it is undisputed that the appellant was appointed to his position under
38 U.S.C. § 7401(1), and that he therefore does not have chapter 75 Board appeal
rights. Accordingly, the administrative judge dismissed the chapter 75 appeal for lack
of jurisdiction. 0487W2 AF, Tab 51. The appellant does not challenge that dismissal
on petition for review. The Clerk of the Board initially docketed a petition for r eview
regarding the chapter 75 appeal. However, the Clerk subsequently informed the parties
that it was administrative error to docket a petition for review in the chapter 75 appeal,
and that it was therefore rescinding the docketing of a petition for rev iew in MSPB
Docket No. DE-0752-14-0122-I-1. Petition for Review (PFR) File, Tab 3.
10
Initial Decision (ID). The administrative judge found that the appellant made
protected disclosures that were a contributing factor in (1) the April 2010 written
counseling for leaving his computer unattended, (2) the May 2010 proposed
admonishment—later mitigated to a written counseling—for his behavior at the
April 15, 2010 staff meeting, and (3) his proposed removal. ID at 16-22. The
administrative judge found, however, that the appellant failed to establish that hi s
retirement was involuntary and therefore did not constitute a personnel action. ID
at 19-21. 9 Finally, the administrative judge found that the agency proved by clear
and convincing evidence that it would have issued the written counselings and the
proposed removal in the absence of the appellant’s disclosures. ID at 22-29.
¶22 The appellant has filed a timely petition for review of the initial decision.
Petition for Review (PFR) File, Tab 1. The appellant challenges the
administrative judge’s findings and credibility determinations in connection with
the proposed removal. Id. at 9-26. He also argues that his retirement was
involuntary at least in part because the agency denied him due process. Id.
at 26-27. The agency has not responded to the petition for review.
DISCUSSION OF ARGUMENTS ON REVIEW
¶23 On petition for review, the appellant does not specifically challenge the
administrative judge’s findings regarding the written counselings or the
restrictions on entering the Albuquerque facility. We hav e reviewed those
9
The appellant also had claimed as personnel actions (1) the restrictions placed on his
access to the Albuquerque facility, and (2) a series of nonselections. The administrative
judge found that the access restrictions were subsumed by the appellant’s pla cement on
administrative leave (which he did not challenge before the Board) for the period prior
to his retirement, and that, to the extent they remained in effect after the appellant’s
retirement, they no longer constituted personnel actions. ID at 19. The appellant
withdrew his claim regarding the nonselections during the hearing. 1/13/14 HT
at 210-11 (testimony of the appellant). On petition for review, the appellant does not
challenge the administrative judge’s resolution of the access restrictions or
nonselections, and we see no reason to disturb them.
11
findings, and we find no basis to disturb them. 10 For the reasons set forth below,
however, we find that this appeal should be remanded for further consideration
regarding the proposed removal and the alleged involuntary retirement.
Further adjudication is required concerning the appellant’s claim that the agency
proposed his removal in reprisal for his protected disclosures.
¶24 As our reviewing court has held, in determining whether the agency proved
by clear and convincing evidence that it would have taken the same actions
against the appellant, even absent any protected disclosures, the Board should
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 agency officials 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); Schnell v. Department of the Army,
114 M.S.P.R. 83, ¶ 23 (2010). 11 Our reviewing court has stated that “[e]vidence
only clearly 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). The court in Whitmore further
stated that “[i]t is error for the [Board] to not evaluate all the pertinent evidence
in determining whether an element of a claim or defense h as been proven
adequately.” Id. Building on this directive from the court in Whitmore, the
Board has held that a proper analysis of the clear and convincing evidence issue
requires that all of the evidence be weighed together —both the evidence that
10
Similarly, although the agency has not filed a cross petition for review, we have
reviewed the administrative judge’s finding that the appellant established a prima facie
case of whistleblower reprisal, and we see no reason to disturb that finding.
11
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, nor does it affect
the relevant holdings in the authorities cited herein.
12
supports the agency’s case and the evidence that detracts from it. Shibuya v.
Department of Agriculture, 119 M.S.P.R. 537, ¶ 37 (2013) (citing Whitmore,
680 F.3d at 1368).
¶25 In assessing the strength of the agency’s evidence in support of the
proposed removal, the administrative judge cited the AIB, witness statements
provided to police, and the fact that the supervisor obtained a restraining order
against the appellant. ID at 23. He also found that, because the agency did not
specifically charge the appellant with making a threat against the supervisor, it
did not need to prove that the appellant actually intended to threaten har m against
her. Id. The administrative judge dismissed as “not material” an assessment
performed by an agency psychiatrist 2 days after the October 31, 2011 comments.
ID at 24. In that assessment, the agency psychiatrist opined in part that the
appellant “currently poses low risk of acting on his earlier state d [homicidal
ideation],” 0487W2 AF, Tab 60 at 63, but that “[t]his could change rapidly should
events change in a way to endanger his long term insurance/work at the
[agency],” id. The administrative judge also dismissed as “not material” the fact
that the agency allowed the appellant to work his entire shift and had the
supervisor interact directly with him on the day he made the comments. ID
at 24-25.
¶26 On review, the appellant argues that the administrative judge failed to
acknowledge the distinction between present threats of violence and past thoughts
of violence. PFR File, Tab 1 at 10-13. He also argues that it was not his
statements themselves, but rather their embellished retelling by othe rs, that
caused any disruption in the workplace. Id. at 13-15.
¶27 We find that the administrative judge’s assessment of the first Carr factor
in connection with the proposed removal requires further analysis in order to
comply with Whitmore. In particular, the administrative judge should
acknowledge and weigh those factors that detract from the strength of the
agency’s evidence, including those set forth below.
13
¶28 The proposing official testified that he did not read the AIB report or the
supporting evidence before proposing the appellant’s removal, and that the Chief
of Staff gave him an oral summary of the AIB’s recommendation, which he
recalled to be “that [the appellant] posed a threat to a coworker and supervisor.”
1/14/14 HT at 43-44 (testimony of the proposing official). He testified at one
point that he could not remember whether the Chief of Staff informed him that the
AIB had recommended the appellant’s termination, id. at 47, but he later testified
that he “agreed with this recommendation to terminate,” id. at 126. Under
questioning from the administrative judge, the proposing official testified that the
Chief of Staff informed him that the AIB had recommended “significant
administrative action” be taken in response to the appellant’s statements about
harming the supervisor, and he interpreted that phrase to mean termination. 12 Id.
at 148. In explaining his decision to propose the appellant’s removal, the
proposing official described the appellant’s actions as “making a threat at the
workplace to kill a coworker.” Id. at 127. He testified that there are really no
options besides termination “[w]hen someone threatens to kill another person at
work.” Id. at 150. He was not aware of an agency doctor’s assessment 2 days
after the incident stating that the appellant posed a low risk of acting on his
thoughts. Id. at 47. The proposing official also testified that he did not consider
any mitigating factors or any alternatives to removal before writing the proposal.
Id. at 47-48.
¶29 It appears that in proposing the removal, the proposing official relied almost
entirely upon the AIB’s recommendation that “significant administrative action”
be taken against the appellant. While there is nothing inherently improper about
relying on such a recommendation, the fact that the proposing official proposed a
removal without reviewing the underlying evidence weighs against the agency in
12
The Chief of Staff testified that she also did not read the AIB report or the supporting
evidence, and that her understanding of the AIB’s findings came from her discussions
with the Director. 1/14/14 HT at 366-67, 370 (testimony of the Chief of Staff).
14
analyzing the first Carr factor. See Shibuya, 119 M.S.P.R. 537, ¶ 33 (citing the
proposing official’s failure to review the evidentiary package supporting a
proposed action as a factor weighing against the agency in analyzing the first
Carr factor). The administrative judge should consider this fact in analyzing the
first Carr factor on remand.
¶30 The appellant cites Caronia v. Department of Justice, 78 M.S.P.R. 201(1998), overruled on other grounds by Carter v. Department of Justice,
88 M.S.P.R. 641, ¶ 25 n.5 (2001), and Brott v. General Services Administration,
116 M.S.P.R. 410, ¶ 13 n.* (2011), in support of his argument that the agency’s
evidence in support of the proposed removal was weak. PFR File, Tab 1 at 11-12.
The appellant in Caronia was on leave from work when he informed coworkers
who inquired about his health that, before he went on leave, he had thoug hts of
killing his supervisor. Caronia, 78 M.S.P.R. at 205. The agency removed the
appellant based on charges including a charge of conduct unbecoming a law
enforcement officer based on his comments to his coworkers while he was on
leave. Id. at 206. The agency did not specifically charge the appellant in that
case with making a threat. Id. at 206 n.1. In holding that the agency did not
prove the conduct unbecoming charge, the Board in Caronia noted that the
appellant’s comments did not appear to cause anxiety and disruption for the
coworkers who heard them directly. Id. at 208. Rather, those coworkers
understood the appellant’s comments to be about thoughts he had had in the past
for which he had successfully sought treatment. Id. Those coworkers did not
understand the appellant’s comments to be a serious threat against his supervisor.
Id. The Board found that any disruption and anxiety in the workplace occurred
only after the appellant’s comments were relayed to another coworker, who then
embellished them in such a way that the appellant’s supervisor understood them
to be an actual threat. Id. at 208-09.
¶31 There are distinctions between the present case and Caronia. For example,
the appellant in Caronia was already on leave at the time of his comments and
15
already had sought treatment for the thoughts he expressed to his coworkers,
whereas here the appellant was still in the workplace when he made his
comments. Additionally, the statements made in Caronia were found to refer to
that appellant’s thoughts in the past, whereas here it is not clear whether the
appellant was still having thoughts about harming or killing the supervisor when
he made his comments. Nevertheless, we find that the parallels between Caronia
and the present case are sufficient to merit further consideration in assessing the
strength of the agency’s evidence in support of the proposed removal. In
assessing the applicability of Caronia to the facts of the present case, the
administrative judge may need to make additional findings and credibility
determinations regarding the appellant’s comments, the effects those comments
had on those to whom they were made, 13 and the extent to which those comments
may have been embellished by those who did not hear them directly.
¶32 Regarding the second Carr factor, the existence and strength of any motive
to retaliate, the administrative judge found that, although the appellant’s
disclosures did not result in formal adverse consequences for any of the
management officials involved in the decision to propose his removal, those
officials were aware of, and resented, the appellant’s disclosures. ID at 25-27.
The administrative judge therefore found that those officials had a motive to
retaliate against the appellant, although he described that motive as “not as strong
as the appellant suggests.” Id. On review, the appellant argues that the
administrative judge failed to consider additional evidence bearing on the
strength of the motive to retaliate. PFR File, Tab 1 at 16-17. We find nothing in
the administrative judge’s analysis of the second Carr factor that itself would
13
The registered nurse, the individual to whom the appellant commented about putting
his supervisor’s name on a fruit, was approved as a witness but was withdrawn by the
agency at the hearing. 1/15/14 HT at 177 (statement of agency counsel). A different
employee who reported the comment about the fruit also testified that he did not think
the appellant would ever harm the supervisor. 1/14/14 HT at 223 (testimony of the
health technician).
16
require remand. Nevertheless, because we are remanding the appeal for further
consideration of the other Carr factors, the administrative judge also may
supplement his analysis of the second Carr factor on remand to address the
appellant’s objections, should he choose to do so.
¶33 Regarding the third Carr factor—evidence that the agency takes similar
actions against employees who are not whistleblowers but who are otherwise
similarly situated—the administrative judge found that “[t]he agency has removed
employees who made threats to kill others.” ID at 28. He acknowledged that the
evidence showed the agency’s enforcement of its “zero tolerance” policy on
workplace violence was “uneven,” but found that the agency had consistently
removed employees who had threatened to kill another employee. ID at 29. On
petition for review, the appellant argues that the comparators cited by the
administrative judge were not similarly situated to him because of the nature of
their misconduct and other factors. PFR File, Tab 1 at 18-21.
¶34 To the extent the appellant argues that the cited comparators are not
similarly situated because the agency used different labels in charging them, see
id. at 18-19, his argument is misplaced. See Aquino v. Department of Homeland
Security, 121 M.S.P.R. 35, ¶ 30 (2014) (rejecting an agency’s assertion that the
third Carr factor rests solely on a comparison of the charges’ labels of
misconduct). The court in Whitmore warned that the “importance and utility [of
the third Carr factor] should not be marginalized by reading it so narrowly as to
eliminate it as a helpful analytical tool.” Whitmore, 680 F.3d at 1374. Thus, the
administrative judge properly considered the agency’s proffered comparators in
assessing the third Carr factor. However, putting aside the labels assigned to
their respective conduct, the appellant correctly notes that there are differences in
the nature of the conduct alleged against him and that of the cited comparators.
Specifically, one of the cited comparators was charged with telling coworkers,
inter alia, “I will shoot everybody if I need to and I will blame it on” Post
Traumatic Stress Disorder. 0487W2 AF, Tab 85 at 23. That comparator also was
17
charged with disrespectful language toward coworkers and disrespectful
comments of a sexual nature. Id. at 23-24. The second cited comparator was
charged with making multiple statements in reference to his plan to kill a
particular veteran patient, including telling his supervisor that he had brought a
weapon to work on a day when he knew the veteran patient in quest ion had an
appointment. 0487W2 AF, Tab 86 at 61. Thus, the cited comparators’ conduct
appears to have involved more direct threats of violence against coworkers or
patients than the comments the appellant made in the present case. Rather than
acknowledging the differences between the appellant’s conduct and that of the
cited comparators, the administrative judge simply grouped them all together
under the category of “threats to kill others.” ID at 28. We find that Whitmore
requires a more nuanced view of the evidence. On remand, the administrative
judge should consider the differences between the appellant and the cited
comparators, and determine whether, and to what extent, those differences affect
the weight to be given to the comparator evidence.
¶35 Next, we find that the relevant evidence regarding the proposed removal
must be re-weighed as a whole. We further find that the admini strative judge is
in the best position to do so because he is the one who heard the live testimony
and made credibility determinations. 14 See Shibuya, 119 M.S.P.R. 537, ¶ 37. In
conducting his analysis, the administrative judge should be mindful of the court’s
decision in Whitmore, 680 F.3d at 1368-72, and consider all the relevant evidence
as a whole, including the evidence discussed above, supra ¶¶ 28-34, as well as
14
The appellant argues on review that the administrative judge’s ability to make
credibility determinations was impaired due to the passage of more than 2 years
between the hearing dates and the issuance of the initial decision. PFR File, Tab 1
at 25. We see no reason to discount the administrative judge’s credibility
determinations on that basis alone. The administrative judge may have made his
credibility determinations during or shortly after the hearing. Even if he did not do so,
the administrative judge is still in a better position to make those determinations than
the Board members, who did not have the opportunity to observe the witnesses.
Because we are remanding the appeal, we need not address the appellant’s other
challenges regarding credibility determinations at this st age.
18
any other evidence he finds relevant. See Shibuya, 119 M.S.P.R. 537, ¶ 37.
Because the clear and convincing evidence determination may require the
administrative judge to make additional credibility and factual determinations, we
leave it to the administrative judge to determine in the first instance whether to
reconvene the hearing to take more testimony on this issue.
¶36 Our decision to remand this appeal should not be read as excusing or
minimizing the appellant’s conduct that gave rise to his proposed removal. Th e
comments attributed to the appellant are completely inappropriate and deserving
of significant disciplinary action. Nor should our decision to remand this appeal
be read as a suggestion that the appellant should ultimately prevail in this appeal.
We are remanding the appeal to the administrative judge because further legal
analysis is required, not because we believe the outcome of the appeal should
necessarily change.
The administrative judge should reconsider the appellant’s involuntary retirement
claim in light of his findings concerning the proposed removal.
¶37 The administrative judge found that the appellant failed to prove that his
retirement was involuntary. ID at 19-20. In doing so, the administrative judge
found that the appellant (1) was not coerced into retiring by intolerable working
conditions, and (2) did not retire after the agency threatened a removal action it
knew or should have known could not be substantiated. ID at 20. Although we
agree with the administrative judge’s analysis of the involuntary retirement claim,
we nevertheless remand that claim for possible reconsideration in light of the
administrative judge’s findings on remand regarding the proposed removal.
¶38 An employee-initiated action, such as a retirement, is presumed to be
voluntary and therefore outside the Board’s jurisdiction. Vitale v. Department of
Veterans Affairs, 107 M.S.P.R. 501, ¶ 17 (2007). An involuntary retirement is
tantamount to a removal, however, and it therefore is subject to the Board’s
jurisdiction. Id. “[A]ll constructive adverse action claims . . . have two things in
common: (1) the employee lacked a meaningful choice in the matter; and (2) it
19
was the agency’s wrongful actions that deprived the employee of that choice.”
Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 8 (2013).
¶39 Intolerable working conditions may render an action involuntary if the
employee demonstrates that the agency engaged in a course of action that made
working conditions so difficult or unpleasant that a reasonable person in his
position would have felt compelled to retire. Vitale, 107 M.S.P.R. 501, ¶ 20. We
agree with the administrative judge that the appellant failed to establish that his
working conditions were intolerable. In addition, because the appellant was on
administrative leave for approximately 9 months before he retired, his working
conditions are not particularly relevant to the voluntariness of his retirement. See
Axsom v. Department of Veterans Affairs, 110 M.S.P.R. 605, ¶ 16 (2009) (finding
that alleged incidents of harassment figured only tangentially into an appellant’s
decision to resign, if at all, when they preceded the decision to resign by several
months). Rather, the key factor in the appellant’s decision to retire was the
proposal to remove him, which came less than 2 months prior to his retirement.
¶40 To prove that a retirement in the face of a proposed adverse action was
involuntary, the appellant must show that the agency knew or should have known
that the action could not be substantiated, Schultz v. U.S. Navy, 810 F.2d 1133,
1136-37 (Fed. Cir. 1987); Barthel v. Department of the Army, 38 M.S.P.R. 245,
251 (1988), or that the agency lacked an arguable basis for the proposed action,
see Garland v. Department of the Air Force, 44 M.S.P.R. 537, 540 (1990). While
we recognize that there may be some weaknesses in the agency’s case for
removing the appellant, see supra ¶¶ 28-31, we find that the appellant failed to
establish that the agency knew or should have known that its proposed removal
could not be substantiated or that the agency lacked an arguable basis for
removing the appellant in light of his comments. 15
15
The appellant argues that his primary reason for retiring was the agency’s failure to
provide him with the full AIB investigative file, and that the agency’s failure to provide
that full file constituted denying him due process. PFR File, Tab 1 at 26-27. Pursuant
20
¶41 Nevertheless, further adjudication of the involuntary retirement claim may
be required on remand. Allegations of reprisal for whistleblowing, when made in
an IRA appeal in support of an assertion that an agency coerced an appellant’s
resignation or retirement, should be considered for the limited purpose of
determining whether they support a finding of coercion. Heining v. General
Services Administration, 61 M.S.P.R. 539, 551 (1994); Burke v. Department of
the Treasury, 53 M.S.P.R. 434, 439 (1992). If the administrative judge
determines on remand that the agency failed to meet its burden by clear and
convincing evidence regarding the proposed removal, and that the proposed
removal was therefore retaliatory, he then should reconsider the voluntarine ss of
the appellant’s retirement in light of that finding. See Diefenderfer v. Department
of Transportation, 108 M.S.P.R. 651, ¶ 37 (2008) (remanding an IRA appeal for
further consideration of an alleged involuntary resignation when that claim was
intertwined with other claims that were being remanded).
The administrative judge’s discovery rulings did not constitute an abuse of
discretion.
¶42 The appellant argues that the administrative judge erred in denying his
motion to compel documents and testimony relating to the VIS N investigation.
PFR File, Tab 1 at 25-26. The administrative judge found that the agency
properly withheld the documents as privileged under 38 U.S.C. § 5705, which
prohibits disclosure of agency records and documents “created . . . as part of a
medical quality-assurance program.” 38 U.S.C. § 5705(a). 0487W2 AF, Tab 52
to the U.S. Court of Appeals for the Federal Circuit’s decisions in Ward v. U.S. Postal
Service, 634 F.3d 1274, 1279-80 (Fed. Cir. 2011), and Stone v. Federal Deposit
Insurance Corporation, 179 F.3d 1368, 1376-77 (Fed. Cir. 1999), a deciding official
violates an employee’s due process rights when he relies upon new and material
ex parte information as a basis for his decisions on the merits of a proposed charge or
the penalty to be imposed. See Norris v. Securities & Exchange Commission, 675 F.3d
1349, 1354 (Fed. Cir. 2012). Absent a final decision on the proposed removal, we are
unable to find a due process violation because we do not know what information the
deciding official would have relied upon had he or she been given the opportunity to
render a final decision.
21
at 2-3. The administrative judge also denied the appellant’s request to depose
VISN officials, finding that, although the statutory privilege applies only to
“records and documents,” allowing the depositions would be contrary to the
public policy concerns that led to the creation of the privilege. Id. at 3. The
appellant sought reconsideration of the administrative judge’s ruling denying his
motion to compel, arguing that the documents in question do not fall under the
statutory privilege. 0487W2 AF, Tab 54. The administrative judge denied the
appellant’s motion for reconsideration, finding that the appellant was aware when
he filed his motion to compel that the agency was asserting the statutory privilege
as the basis for not producing the requested materials and that he therefore should
have addressed the privilege issue in his initial motion. 0487W2 AF, Tab 111.
¶43 Under 5 C.F.R. § 1201.41(b)(4), an administrative judge has broad
discretion in ruling on discovery matters and, absent an abuse of discretion, the
Board will not find reversible error in such rulings. Wagner v. Environmental
Protection Agency, 54 M.S.P.R. 447, 452 (1992), aff’d, 996 F.2d 1236 (Fed. Cir.
1993) (Table). The Board will not find reversible error in an administrative
judge’s discovery rulings absent an abuse of discretion that prejudiced the
appellant’s substantive rights. See Jones v. Department of Health and Human
Services, 119 M.S.P.R. 355, ¶ 18, aff’d, 544 F. App’x 976 (Fed. Cir. 2013).
¶44 We find that the administrative judge acted within his discretion in denying
both the appellant’s motion to compel and his motion to reconsider. Based on the
submissions before him when he ruled on the motion, the administrative judge
properly determined that the documents in question were subject to the statutory
privilege and could therefore not be produced before the Board. Although the
appellant acknowledged in his motion to compel that the agency had invoked the
privilege, he did not address the applicability of the privilege in his argument in
support of the motion. 0487W2 AF, Tab 43. Given the appellant’s failure to
raise arguments regarding the privilege issue in his motion to compel, we find
that the administrative judge acted properly within his discretion in denying the
22
appellant an opportunity to raise those arguments for the first time on
reconsideration.
¶45 The appellant also asked the administrative judge to draw an adverse
inference against the agency as to the contents of the documents withheld
pursuant to a claim of privilege. The administrative judge denied that request,
finding that the agency properly withheld those documents as pri vileged and
therefore the sanction of an adverse inference was not warranted. ID at 25 n.17.
We agree with the administrative judge and find no abuse of discretion in his
failure to draw an adverse inference. 16
ORDER
¶46 For the reasons discussed above, we remand this case to the field office for
further adjudication in accordance with this Remand Order. 17
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
16
The primary remaining issue in this case is whether the agency proved by clear and
convincing evidence that it would have proposed the appellant’s removal absent his
disclosures. The documents in question may have assisted the agency in meeting that
burden, and therefore the absence of those documents from the record due to a statutory
privilege actually may disadvantage the agency.
17
The administrative judge should incorporate in the remand initial decision any of his
earlier findings that have not been disturbed by the Board.
DISSENTING OPINION OF TRISTAN L. LEAVITT
in
Anthony J. Daquino v. Department of Veterans Affairs
MSPB Docket Nos. DE-1221-12-0487-W-2, DE-1221-13-0087-W-2
¶1 For the reasons set forth below, I respectfully dissent from the majority
opinion in this case.
¶2 The majority makes the following findings of fact, which I discern no
reason to disturb. On October 31, 2011, the appellant told a coworker “that he had
been having thoughts about harming or killing his supervisor and that h e would be
taking leave starting the following day to seek medical care.” Remand Order (RO),
¶ 12. An Administrative Investigation Board (AIB) was convened in
November 2011. Id., ¶ 16. The AIB found the appellant made the aforementioned
statement and had also told a different coworker that “he had written the
supervisor’s name on fruit, which he then shot with a gun for target practice.” Id.,
¶ 17. The AIB concluded the appellant’s comments to his coworkers violated
agency policy and warranted significant administrative action. Id. The agency
proposed the appellant’s removal based on two charges of Inappropriate Behavior —
one for his comments to the staff nurse about having thoughts of killing his
supervisor 1 and one for his comments to the other coworker about writing his
supervisor’s name on fruit he then used for target practice. Id., ¶ 18. The appellant
subsequently retired and, in his appeals, he alleged the proposed removal and his
involuntary retirement were retaliatory based on protected whis tleblowing activity.
Id., ¶¶ 18-20.
¶3 The majority finds the administrative judge’s assessment of the first Carr
factor in connection with the proposed removal requires further analysis because
1
The agency asserted this inappropriate behavior caused disruption in the workplace.
2
the proposing official proposed a removal without reviewing the underlying
evidence, instead relying on an oral summary of the AIB’s recommendation,
including that the AIB concluded the appellant posed a threat to other employees
and recommended significant administrative action. Id., ¶¶ 27-29. The majority
also discusses in detail Caronia v. Department of Justice, 78 M.S.P.R. 201(1998), overruled on other grounds by Carter v. Department of Justice,
88 M.S.P.R. 641, ¶ 25 n.5 (June 25, 2001), and by Brott v. General Services
Administration, 116 M.S.P.R. 410 (2011), and remands the appeal for the
administrative judge to assess Caronia’s applicability “to the facts of the present
case” and potentially make “additional findings and credibility determinations
regarding the appellant’s comments, the effects those comments had on those to
whom they were made, and the extent to which those comments may have been
embellished by those who did not hear them directly.” 2 RO, ¶¶ 30-31.
¶4 In my view, Caronia is inapplicable in the instant individual right of action
(IRA) appeal because it involved a removal action taken under chapter 75.
Unlike in chapter 75 appeals, the Board lacks the authority in an IRA appeal to
adjudicate the merits of the underlying personnel action; rather, the Board’s
jurisdiction is limited to adjudicating the whistleblower allegations. Lu v.
Department of Homeland Security, 122 M.S.P.R. 335, ¶ 7 (2015); see also
5 C.F.R. § 1209.2(c) (in an IRA appeal that concerns an adverse action under
chapter 75, “the agency need not prove its charges”). The agency must show by
clear and convincing evidence that it would have taken the personnel action(s)
even absent the appellant’s protected activity, which differs from other Board
2
In his petition for review, the appellant cited Caronia in support of his assertions that:
(1) the agency “did not meet its burden of proof that Appellant had made a threat;”
(2) the alleged threat needs to be analyzed with regard to whether the thoughts were
present or past thoughts; and (3) the administrative judge should have analyzed whether
the appellant’s comments “were the actual cause of the disruption in the workplace or
whether the disruption was the result of embellishments on the Appellant’s comments
by other coworkers and managers.” Petition for Review File, Tab 1 at 9-15.
3
proceedings where agencies must prove the merits of their actions by
preponderant evidence. Marren v. Department of Justice, 51 M.S.P.R. 632, 641
(1991), aff’d, 980 F.2d 745 (Fed. Cir. 1992) (Table), and modified on other
grounds by Robinson v. U.S. Postal Service, 63 M.S.P.R. 307, 323 n.13 (1994).
¶5 The Carr factors are not discrete elements which the agency must prove by
clear and convincing evidence. See Phillips v. Department of Transportation,
113 M.S.P.R. 73, ¶ 15 (2010). While the existence or lack of evidence supporting
a charge is relevant to the agency’s overall burden on the clear and convincing
evidence issue, the Board does not review the reasonableness of the penalty as it
would in a chapter 75 appeal. Aquino v. Department of Homeland Security,
121 M.S.P.R. 35, ¶ 29 (2014); Shibuya v. Department of Agriculture,
119 M.S.P.R. 537, ¶ 36 (2013); Weaver v. Department of Agriculture,
55 M.S.P.R. 569, 575 (1992) (the appropriateness of the penalty imposed is not at
issue in an IRA appeal); 5 C.F.R. § 1209.2(c) (“the Board may consider the
strength of the agency’s evidence in support of its adverse action in determining
whether the agency has demonstrated by clear and convincing evidence that it
would have taken the same personnel action in the absence of the whistleblowi ng
or other protected activity”). “[T]he relevant inquiry is not whether the appellant
committed any actual misconduct, but whether the agency had strong evidence in
support of its personnel action.” Phillips, 113 M.S.P.R. 73, ¶ 15. Thus, even
where an appellant is later found not to have engaged in misconduct as charged,
the agency may nonetheless have had a legitimate basis for imposing a penalty at
the time it acted. See id.; cf. Redschlag v. Department of the Army,
89 M.S.P.R. 589, ¶ 69 (2001) (“the proper perspective when weighing the gravity
of the misconduct against the motive to retaliate is to view the gravity of the
misconduct as it appeared to the deciding official at the time he took the removal
action”).
¶6 The fact that the proposing official only relied on an oral summary of the
AIB investigation, without reviewing the actual report himself, is not sufficient to
4
find the agency did not have strong reasons for its action. 3 Notably, the
information the proposing official received and relied on appears largely
consistent with what is contained in the AIB report. The AIB investigation noted
the appellant admitted he “fantasized about killing” his supervisor, which he
disclosed to both his coworker and a police officer. MSPB Docket No. DE -1221-
12-0487-W-2, Appeal File, Tab 106 at 134. The AIB concluded:
Mr. Daquino has violated a basic tenet of professional conduct by
verbalizing such physically threatening statements towards his nurse
manager . . . returning Mr. Daquino to GI would not be in the best
interests of the staff or patients of this clinical area. While it is
unclear how credibly dangerous Mr. Daquino might be towards his
manager, the fact is that no level of threat is to be tolerated and must
be assumed to be actionable. Significant administrative action is
warranted.
Id. at 137. I would find the agency has presented strong evidence supporting its
decision to propose the appellant’s removal for inappropriate behavior. I believe
the appellant’s conduct, which is not substantially in dispute, was objectively
inappropriate, as charged, regardless of any mitigating factors or the presence or
absence of an actual threat.
¶7 Regarding the third Carr factor, the majority suggests that the
administrative judge did not properly assess whether proffered comparators were
similarly situated to the appellant. RO, ¶¶ 33-34. The majority remands for the
administrative judge to “consider the differences between the appellant and the
cited comparators, and determine whether, and to what extent, thos e differences
affect the weight to be given to the comparator evidence.” Id. In this case, the
relevant question is whether the agency presented any evidence that it proposed
3
Indeed, in Shibuya, 119 M.S.P.R. 537, ¶ 33, which the majority cites, the proposing
official’s failure to review the evidentiary package was just one of many factors
supporting a finding that the agency failed to meet its clear and convincing burden. For
instance, the proposing official also failed to order a customary case analysis and the
deciding official lacked understanding of the evidence supporting the demotion at
issue. Id.5
removal against similarly situated employees who did not engage in protected
activity. I see no error in the administrative judge’s “group[ing]” the proffered
comparators “all together under the category of ‘threats to kill others,’” as it
relates to proposed discipline. See id., ¶ 34. The agency’s charges are based on
the appellant’s statements concerning killing his supervisor, which I would find
sufficiently similar to the proffered comparators for purposes of finding the
agency has shown it has proposed removal in cases of similarly situated
non-whistleblowers. 4
¶8 The majority also “agree[s] with the administrative judge’s analysis of the
involuntary retirement claim” and his finding “that the appellant failed to
establish that his working conditions were intolerable,” ultimately concluding
“the appellant failed to establish that the agency knew or should have known that
its proposed removal could not be substantiated or that the agency lacked an
arguable basis for removing the appellant in light of his comments.” RO,
¶¶ 37-40. I agree with the majority in this regard.
¶9 The majority goes on to remand the appellant’s involuntary retirement claim
so that the administrative judge may reconsider the voluntariness of the
appellant’s retirement in the event he finds, on remand, that the proposed removal
was retaliatory. Id., ¶ 41. For the reasons previously stated, I do not agree with
remanding this appeal and would instead affirm the initial decision. However, as
the appeal is being remanded, I note that I would not require, on remand,
additional analysis concerning the appellant’s involuntary retirement claim. The
mere allegation that one was retaliated against for whistleblower activities is
insufficient to demonstrate that working conditions were made so intolerable by
the alleged retaliation as to render a retirement involunta ry by reason of coercion.
4
To the extent that none of the proffered comparators are similarly situated, given the
agency’s strong evidence in support of proposing removal —namely, the appellant’s
undisputed, objectively inappropriate comments—I would alternatively find the third
Carr factor neutral and that the agency met its overall clear and convincing burden.
6
See Burke v. Department of the Treasury, 53 M.S.P.R. 434, 439 (1992). Evidence
of retaliation goes to the ultimate question of coercion—whether under all of the
circumstances working conditions were made so difficult by the agency that a
reasonable person in the employee’s position would have felt compelled to retire.
See Markon v. Department of State, 71 M.S.P.R. 574, 577-80 (1996) (the fact that
the appellant made a prima facie case of age discrimination was not “in-and-of-
itself” relevant to the appellant’s burden of proof on the voluntariness issue); see
also Axsom v. Department of Veterans Affairs, 110 M.S.P.R. 605, ¶ 16 (2009)
(considering how the appellant’s claims of harassment, retaliation, and
discrimination figured into his decision to resign, including that he “had the
option to stand and fight the alleged discrimination, harassment, and retaliation
rather than resign”). Accordingly, a finding that the proposed removal was
retaliatory would not require revising the aforementioned bases for finding the
agency did not coerce the appellant to retire.
/s/
Tristan L. Leavitt
Member