gores v department of veterans affairs

Gores v. Department of Veterans Affairs, 68 M.S.P.R. 100 (1995)

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KeyCite Red Flag - Severe Negative Treatment Reversed by Gores v. Department of Vererans Affairs, Fed.Cir.,

November 4, 1997

68 M.S.P.R. 100 Merit Systems Protection Board.

Mel A. GORES, Appellant, v.

DEPARTMENT OF VETERANS AFFAIRS, Agency.

NY-0752-94-0245-I-1. | June 27, 1995.

Department of Veterans Affairs petitioned for review of

initial decision that reversed agency’s action suspending

medical center director for 30 days for whistleblower

reprisal against chief personnel officer. The Merit Systems

Protection Board held that: (1) by passively accepting

physician’s note, stating that officer was unable to attend

deposition due to his medical condition, agency failed to

meet its obligation of good faith and due diligence to

produce officer at deposition requested by director and,

therefore, imposition of sanctions was in the interest of

justice; (2) director engaged in whistleblower reprisal by

giving officer “minimally successful” rating on his

performance appraisal; (3) director engaged in

whistleblower reprisal by detailing officer from his

position; (4) director’s continuance of officer’s detail in

library for officer’s alleged blackmailing coemployee after

director was informed that United States Attorney had

declined to investigate blackmail allegation constituted

whistleblower reprisal; (5) director’s giving memorandum

relieving officer of his duties in presence of several other

departmental managers did not constitute whistleblower

reprisal; (6) deciding official did not engage in improper ex

parte communications prior to issuing agency’s decision

letter; and (7) director’s whistleblower retaliation and

violation of agency regulations regarding employee

conduct constituted misconduct warranting disciplinary

action, and 15-day suspension was maximum reasonable

penalty under circumstances.

Petition granted; initial decision affirmed in part and

vacated in part; penalty action mitigated to 15-day

suspension.

Benjamin L. Erdreich, Chairman, issued concurring

opinion.

Antonio C. Amador, Member, issued concurring opinion.

West Headnotes (26)

[1]

Merit Systems Protection Sanctions

Administrative judge may impose sanctions

against party for failure to follow Board’s

regulations or failure to respond to administrative

judge’s orders. 5 C.F.R. § 1201.43.

Cases that cite this headnote

[2]


Sanctions should be imposed when a party has

failed to exercise due diligence in complying

with any order, or when a party has exhibited

negligence or bad faith in its efforts to so comply.

5 C.F.R. § 1201.43.


[3]


Administrative judge should not resort to

imposition of sanctions unless necessary to serve

the ends of justice. 5 C.F.R. § 1201.43.


[4]


By passively accepting physician’s note, stating

that chief personnel officer was unable to attend

deposition due to his medical condition, agency

failed to meet its obligation of good faith and due

diligence to produce officer at deposition,

justifying adverse inference sanction; although

agency submitted evidence establishing that

officer had suffered from anxiety, dysthymia, and

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severe depression for past several years and that

officer had been incapacitated due to his

condition for all of past year, officer’s condition

did not impair his ability to testify at equal

employment opportunity hearing during time

officer allegedly suffered from such condition;

moreover, physician failed to diagnose ailment

that incapacitated officer, and, in any event,

agency failed to show that it was harmed by

imposition of adverse inference sanction. 5

C.F.R. § 1201.43.


[5]

Merit Systems Protection Burden of Proof and Standards of Proof in

General

Administrative judge erred in finding that

proposing and deciding officials applied wrong

evidentiary standard in whistleblower reprisal

case, and were required to determine whether

whistleblowing was significant factor in

allegedly retaliatory actions; agency’s function

was not adjudicatory, and it was not responsible

for applying various burdens of proof and

evidentiary standards applicable in Board’s

appellate procedures.


[6]

Merit Systems Protection Initial Decision

Initial decision, reversing suspension of

employee, did not contain findings and

conclusions on all material issues presented

below where administrative judge analyzed

merits of agency’s charges based only on

agency’s decision letter, notice of proposed

suspension, and brief excerpts from depositions,

without considering other evidence in record that

supported agency’s decision.


[7]


An initial decision must identify all material

issues of fact and law, summarize the evidence,

resolve issues of credibility, and include

administrative judge’s conclusions of law and his

legal reasoning, as well as the authorities on

which that reasoning rests. 5 C.F.R. §

1201.111(b).


[8]

Merit Systems Protection Administrative Judge (Formerly “Presiding

Official”)

Resolving conflicts in evidence and deciding

issues of credibility are normally the province of

administrative judge because he can assess

credibility of witnesses based on their demeanor

during hearing.


[9]

Merit Systems Protection Procedures Generally; Application


Although initial decision reversing suspension of

employee, did not contain findings and

conclusions on all material issues presented

below, remand was not necessary where

employee withdrew his request for hearing.


[10]

Merit Systems Protection In General; Miscellaneous Misconduct

To establish that employee engaged in prohibited

personnel practice of whistleblower reprisal,

agency must prove that the acting official had the

authority to take, recommend, or approve any

personnel action, that the aggrieved employee





























made a disclosure protected under statute, that

the acting official used his authority to take or

refuse to take personnel action against the

aggrieved employee, and that the acting official

took or failed to take the personnel action against

the aggrieved employee because of the protected

disclosure. 5 U.S.C.A. § 2302(b)(8).


[11]


Employee, as director of medical center, had

sufficient authority to recommend personnel

action against chief personnel officer, for

purposes of determining whether director

engaged in prohibited personnel practice of

whistleblower reprisal. 5 U.S.C.A. § 2302(b)(8).


[12]


Test to determine whether agency charging

whistleblower reprisal has proven that

whistleblower made disclosures protected under

Whistleblower Protection Act (WPA) is whether

person with information that whistleblower had

could have reasonably concluded that his

disclosures were protected under WPA. 5

U.S.C.A. § 2302(b)(8).


[13]


Chief personnel officer could have reasonably

believed that his disclosures to Office of

Inspector General (OIG) and Office of Special

Counsel (OSC) regarding medical center

uncovered numerous violations of agency and

federal personnel regulations were protected

under Whistleblower Protection Act (WPA),

satisfying element of whistleblower reprisal

charge against medical center director. 5

U.S.C.A. § 2302(b)(8).


[14]


Agency showed that medical center director used

his authority to take personnel action against

chief personnel officer, for purposes of

determining whether director engaged in

prohibited personnel practice of whistleblower

reprisal, where record indicated that director

rated officer as “minimally successful” on

performance appraisal and detailed him from his

position to position in library. 5 U.S.C.A. § 2302

(a)(2)(A)(iv), (a)(2)(A)(viii), (b)(8).


[15]


In order for agency to prove that employee acted

to terminate whistleblower because of his

protected disclosures, for purposes of

determining whether employee engaged in

prohibited personnel practice of whistleblower

reprisal, agency must show, by a preponderance

of the evidence, that protected disclosures were

significant factor in personnel actions that

employee took against whistleblower. 5 U.S.C.A.

§ 2302(b)(8).


[16]


Evidence supported conclusion that chief

personnel officer’s disclosures regarding

mismanagement of personnel office were

significant factor in medical center director’s

decision to give officer “minimally successful”

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rating on his performance appraisal and,

therefore, director’s decision to rate officer as

“minimally successful” constituted

whistleblower reprisal and violation of agency

regulations regarding employee conduct; director

knew prior to period of review at issue that

officer’s disclosures to Office of the Inspector

General (OIG) had resulted in second audit at

center, director was eager to take some kind of

personnel action against officer during period of

review, and personnel specialists from whom

director had sought advice regarding officer’s

performance appraisal believed that there was no

basis to take any kind of action against officer. 5

U.S.C.A. § 2302(b)(8); 38 C.F.R. §§ 0.735-10(a),

(b)(4), (e), 0.735-18, 0.735-21(l ) (1993).


[17]


Evidence supported conclusion that chief

personnel officer’s disclosures regarding

mismanagement of personnel office were

significant factor in medical center director’s

decision to detail officer from his position to

library duty and, therefore, director’s action

constituted whistleblower reprisal and violation

of agency regulations regarding employee

conduct; there was little substance to allegation

that officer blackmailed coemployee, and once

director learned of blackmail allegation he acted

in great haste to detail officer, without

conducting thorough investigation; moreover,

director was angry about officer’s disclosures,

and there was no other valid support in director’s

white paper to justify detailing officer from his

position. 5 U.S.C.A. § 2302(b)(8); 38 C.F.R. §§

0.735-10(a), (b)(4), (e), 0.735-18, 0.735-21(l )

(1993).


[18]


Evidence supported conclusion that medical

center director’s continuance of chief personnel

officer’s detail in library for officer’s alleged

blackmailing coemployee after director was

informed that U.S. Attorney had declined to

investigate blackmail allegation constituted

whistleblower reprisal and violation of agency

regulations regarding employee conduct; director

was angry about officer’s disclosures regarding

mismanagement of personnel office and there

was no other valid support in director’s white

paper to justify detailing officer from his

position. 5 U.S.C.A. § 2302(b)(8); 38 C.F.R. §§

0.735-10(a), (b)(4), (e), 0.735-18, 0.735-21(l )

(1993).


[19]


Medical center director’s giving chief personnel

officer memorandum relieving him of his duties

in presence of several other departmental

managers did not constitute either whistleblower

reprisal or violation of agency’s regulations

concerning employee conduct; managers had

already been informed of detail, and director

testified that it was only an accident that

managers were present at time officer came to

office; moreover, there was no evidence to

demonstrate that director was attempting to

embarrass or humiliate officer or that, in fact,

officer was embarrassed or humiliated. 5

U.S.C.A. § 2302(b)(8); 38 C.F.R. §§ 0.735-10(a),

(b)(4), (e), 0.735-18, 0.735-21(l ) (1993).


[20]


Medical center director’s act of presenting

memorandum relieving chief personnel officer of

his duties did not constitute “personnel action”

and, therefore, director’s act of presenting

memorandum to officer in presence of several

other departmental managers could not constitute

either whistleblower reprisal or violation of

agency’s regulations concerning employee

conduct. 5 U.S.C.A. § 2302(b)(8); 38 C.F.R. §§



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0.735-10(a), (b)(4), (e), 0.735-18, 0.735.2(l )

(1993).


[21]

Merit Systems Protection Procedural Error

There is no statutory or regulatory prohibition

against ex parte communications between

proposing and deciding officials or any other

officials or persons during agency’s

decision-making process in an adverse action;

however, ultimate decision must be made by

deciding official, not by some other individual.


[22]

Merit Systems Protection Procedural Error

Employee failed to establish that deciding

official engaged in improper ex parte

communications with Officer of Special Counsel

(OSC) prior to issuing decision; although

deciding official stated he had two brief

conversations with OSC’s contact person

concerning case, official could not recall whether

OSC’s contact person persuaded him that 30-day

suspension was appropriate, such that whatever

influence OSC had in case was minimal.


[23]


Merit Systems Protection Senior Executive Service

Senior Executive Service (SES) supervisor’s

whistleblower retaliation and violation of agency

regulations regarding employee conduct

constituted misconduct warranting disciplinary

action, and 15-day suspension was maximum

reasonable penalty under circumstances. 5

U.S.C.A. §§ 2302(b)(8), 7543(a); 38 C.F.R. §§

0.735-10(a), (b)(4), (e), 0.735-18, 0.735-21(l )

(1993).


[24]

Merit Systems Protection Penalty and Mitigation

Whenever agency’s action is based on multiple

charges, some of which are not sustained,

administrative judge should consider carefully

whether sustained charges merited penalty

imposed by agency.


[25]

Merit Systems Protection Senior Executive Service

Senior Executive Service (SES) supervisor must

be expected to conform to higher standard of

conduct than other employees.


[26]


Agency is permitted to take disciplinary action

against supervisor who retaliates against

employee because of his protected disclosures.


Attorneys and Law Firms

*106 Diana J. Veilleux, Esq., Washington, DC, for

appellant.

Thomas J. McKeever, Jr., Washington, DC, for agency.

Before ERDREICH, Chairman, and AMADOR, Member.




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OPINION AND ORDER

The agency has petitioned for review of the October 7,

1994 initial decision that reversed the agency’s action

suspending the appellant for 30 days. For the reasons

discussed below, we GRANT the petition for review,

AFFIRM the initial decision in part, VACATE the initial

decision IN PART, and MITIGATE the agency’s action to

a 15-day suspension.

BACKGROUND

On February 20, 1994, the agency suspended the appellant,

an ES-04 Medical Center Director, for 30 days based on:

(1) Improperly rating David Goblet, the Chief Personnel

Officer at the Medical Center (Center), as “minimally

successful” on his performance appraisal for the period

ending March 31, 1991, in reprisal for his disclosures to the

Office of the Inspector General (OIG) and/or the Office of

Special Counsel (OSC) concerning violations of personnel

regulations at the Center; (2) improperly detailing Goblet

from his position to duties to be performed in the library on

September 13, 1991, based in part on his disclosures to the

OIG and/or OSC, and failing to follow through with an

administrative investigation into allegations that Goblet

had blackmailed another agency employee and continuing

Goblet’s detail even though the appellant had been advised

that the blackmail allegations would not be pursued by the

United States Attorney’s Office (U.S. Attorney); and (3)

publicly humiliating Goblet by inappropriately giving him

notification of his detail in the presence of other managers

at the Center during a national conference call. See Initial

Appeal File (IAF), Vol. 1, Tab 3, Subtab 4K. In its notice

of proposed removal, the agency stated that the actions

cited in the three charges violated 5 U.S.C. § 2302(b)(8),

and several agency regulations regarding employee

misconduct.1 Id.

*107 In May 1989, the OIG received written allegations

from anonymous sources at the Center citing excessive

stand-by pay rates in laboratory service, irregularities in

stand-by pay2 for radiology service employees,

inappropriate awards for nursing service employees, and

improper performance appraisal practices. See IAF, Vol. 9

(Agency Exhibit # 21). The OIG referred these allegations

of mismanagement to the agency’s Health Administration

(HA) regional staff for review. In June 1989, the acting

Deputy Regional Director (DRD) responded that the

allegations were not substantiated. Id.

Officials at the OIG believed that the acting DRD’s

response did not appropriately address the allegations and

forwarded the response and allegations to the agency’s

Central Office (CO) Personnel and Finance officials for

review. Id. A July 1989 response from CO Personnel

officials substantiated all four of the allegations. An

October 1989 response from CO Finance officials further

substantiated the allegation of irregularities in the award of

United States Savings Bonds, the only allegation that they

were asked to review. Id. In December 1989, the acting

Regional Director provided an amended response

recognizing the technical problems in the award of savings

bonds to nursing staff and indicated that the appellant had

been counseled concerning these problems and the manner

in which the awards were handled. Id. Although the OIG

was unaware of the allegations’ source, there was

considerable contact regarding the allegations between CO

Personnel and Finance officials and officials at the Center,

including the appellant and Goblet. Id. Since the

allegations were related primarily to personnel issues that

Goblet had previously discussed at the Center, the

appellant believed that Goblet was either the source or a

major contributor to the anonymous allegations of

impropriety at the Center. See IAF, Vol. 1, Tab 3, Subtab

4H (Appellant’s Declaration at 4-5).

In November 1990, Congressman Amo Houghton

forwarded nine other allegations of mismanagement by the

appellant to the OIG. See *108 IAF, Vol. 3, Tab 4a, Subtab

4CCC. Goblet had provided the allegations to

Congressman Houghton and to OSC. On November 14,

1990, OSC declined to investigate Goblet’s allegations,

and advised him that to pursue the prohibited personnel

practices indicated in the documents that he had filed,

specifically a poor performance rating in reprisal for his

disclosures, he should file an OSC form and attach the

performance appraisal in question. See IAF, Vol. 3, Tab 4a,

Subtab 4EEE. On September 5, 1991, Goblet filed an OSC

complaint and attached an appraisal for the period of April

1, 1990, to March 31, 1991, and alleged a number of

irregularities. See IAF, Vol. 2, Tab 4, Subtabs 4GG, JJ.

From November 1990 to September 1991, the OIG audit

staff reviewed the nine allegations, and Thomas Cargill,

the OIG’s regional Manager, found in an October 25, 1991

final report that three of the nine allegations were

substantiated. See IAF, Vol. 2, Tab 4, Subtab 4W. On

January 30, 1992, the OIG audit staff completed another

review of the Center and issued a report in which Cargill

found that two other allegations made by Goblet

concerning mismanagement at the Center were

substantiated. See IAF, Vol. 2, Tab 4, Subtab 4Q.




On September 13, 1991, the appellant issued a

memorandum to Goblet that relieved him of all of his

duties and responsibilities as Chief Personnel Officer, and

detailed him to the library indefinitely. See IAF, Vol. 2,

Tab 4, Subtab 4CC. Subsequently, Goblet alleged to both

OSC and the OIG that the detail and his minimally

satisfactory performance appraisal were reprisals for his

complaints of mismanagement by the appellant to OSC

and the OIG. See IAF, Vol. 2, Tab 4LL.

Based on the appellant’s oral and written replies to the

proposed suspension, James Scargini, a personnel

specialist at the CO, recommended to Sanford Garfunkel,

the deciding official, that only charges 1 and 3 be

sustained. See IAF, Vol. 1, Tab 3, Subtabs 4C, D.

Nevertheless, Garfunkel sustained all three charges in the

decision letter. See IAF, Vol. 1, Tab 3, Subtab 4B.

On appeal, the appellant contended that the suspension

should be reversed because Garfunkel engaged in improper

ex parte communications with OSC that influenced his

decision to sustain the 30-day suspension. See IAF, Vol. 5,

Tab 22. Thus, the appellant argued that the agency

committed harmful procedural error. Id. He further

contended that the agency could not prove by preponderant

evidence that his personnel actions with respect to Goblet

constituted whistleblower reprisal. Id. In this regard, the

appellant argued that Goblet was not entitled to

whistleblower status because his complaints to OSC and

the OIG did not constitute protected disclosures under 5

U.S.C. § 2302(b)(8). Id. Also, the appellant argued that

Goblet should not *109 be afforded whistleblower

protection because his interest in causing office disruption

and maligning the appellant substantially overshadowed

any allegations of waste, fraud, or abuse that Goblet might

have made to the OIG. Id.

Even assuming that Goblet could be afforded

whistleblower status, the appellant argued that the record

did not demonstrate that Goblet’s disclosures were a

“significant factor” in the personnel actions at issue. Id. In

this connection, the appellant argued that Goblet’s

disclosures to the OIG concerned arcane, technical errors

in personnel matters, and that, even after the OIG verified

the allegations, the appellant was not reprimanded. Id.

Therefore, the appellant contended that he had no motive

to commit acts of reprisal against Goblet. Id. With respect

to Goblet’s performance appraisals, the appellant noted

that he gave Goblet a fully successful performance

appraisal in May 1990, eleven months after his first

disclosures, and that the appellant gave Goblet a

within-grade increase in January 1991. Id. Further, the

appellant argued that the performance ratings were

justified by concerns that he had with Goblet’s lack of

rapport with the personnel staff and his unhelpful attitude

toward other service chiefs. Id. With respect to the detail,

the appellant contended that his action was justifiable

based on allegations that Goblet had attempted to

blackmail or bribe Dr. Richard White, a Radiologist at the

Center. Id. Finally, the appellant asserted that, even

assuming that the agency could establish the charges

against him by preponderant evidence, his alleged

misconduct did not warrant a 30-day suspension. Id.

In his initial decision based on the written record,3 the

administrative judge imposed sanctions on the agency for

its failure to produce Goblet for a deposition. See Initial

Decision (ID) at 3-5. The administrative judge found that

the agency had not met its obligation of good faith and due

diligence by passively accepting a note from Goblet’s

physician, Dr. Harris Brenner, stating that Goblet was

unable to attend the deposition due to his medical

condition. See ID at 4-5. Consequently, the administrative

judge drew an adverse inference relative to any evidence in

the file that had Goblet as its source. See ID at 3.

The administrative judge further found that the agency has

the burden in a Whistleblower Protection Act (WPA)

disciplinary action of demonstrating that the protected

disclosure was a “significant factor” in the appellant’s

decision to take the personnel action at issue against the

whistleblower. See ID at 5. Finding that the OIG report

relied upon by the deciding official, Garfunkel, and the

proposing official, Barbara Gallagher, stated that the

disclosures by Goblet were a “contributory,” rather than a

“significant,” factor in the personnel *110 actions taken

against him by the appellant, and that neither the letter of

proposed suspension nor the decision letter charges or

concludes that Goblet’s WPA activities were a significant

factor in the appellant’s decision to discipline him, the

administrative judge concluded that the agency had not

established a credible basis for concluding that Goblet’s

whistleblowing was a significant factor in the appellant’s

decision to discipline Goblet. See ID at 5-7.

Also, the administrative judge found that Garfunkel never

explained during his deposition what he believed

motivated the appellant to detail Goblet. See ID at 7. In

addition, the administrative judge noted that the

appellant’s supervisor, Donald E. Burnette, approved

Goblet’s detail pending the resolution of criminal and

administrative charges against him, and that Garfunkel

stated during his deposition that charge three constituted

only inappropriate conduct, rather than reprisal. See ID at

7. Moreover, the administrative judge noted that neither

Gallagher nor Garfunkel interviewed Goblet or the

appellant, and that the reports on which they relied were





hearsay to the second or third degree. Id. Consequently,

since neither official made a “significant factor” finding

concerning the charges, the administrative judge found that

the agency had failed to meet its burden of proof, and he

reversed the agency’s action. See ID at 7-8.

ANALYSIS

The agency has not shown that the administrative judge

erred by imposing sanctions.

In its petition for review, the agency argues that the

administrative judge should not have drawn an adverse

inference regarding evidence that had Goblet as its source

for the agency’s alleged failure to produce Goblet for a

deposition requested by the appellant. See Petition for

Review (PFR) at 13-19. In this connection, the agency

argues, inter alia, that it exercised due diligence in

attempting to produce Goblet for the deposition, but that he

was unable to appear due to his medical condition. See

PFR at 14-17.

[1]

[2]

[3]

An administrative judge may impose sanctions

against a party for failure to follow the Board’s regulations

or failure to respond to the administrative judge’s orders. 5

C.F.R. § 1201.43; Carrier v. U.S. Postal Service, 65

M.S.P.R. 54, 56 (1994). Sanctions should be imposed

when a party has failed to exercise due diligence in

complying with any order, or when a party has exhibited

negligence or bad faith in its efforts to so comply. See id at

56-57. An administrative judge should not resort to the use

of sanctions, however, unless necessary to serve the ends

of justice. See id. at 57.

*111 [4]

Here, the imposition of sanctions was in the

interest of justice because the agency did not exercise due

diligence in attempting to have Goblet appear for the

requested deposition. The record shows that the agency

ordered Goblet to attend the deposition, but that he stated

to his supervisor, John Dunn, that he was unable to appear

due to his medical condition. See IAF, Vol. 4, Tab 18

(Attachments). He also provided a medical certificate from

his treating physician, Dr. Harris Brenner, that stated that it

was inadvisable that he attend a deposition. Id. Although

the agency submitted evidence establishing that Goblet has

suffered from anxiety, dysthymia, and severe depression

since 1990, and that he has been incapacitated due to his

condition for all of 1994, we note that his condition did not

impair his ability to testify at his equal employment

opportunity hearing on October 28, 1992. See IAF, Agency

Exhibits 20, 22 (OWCP File). Moreover, since Dr. Brenner

fails to diagnose the ailment that has incapacitated Goblet,

the agency’s unquestioning acceptance of Goblet’s

medical evidence shows that the agency did not exercise

due diligence. Therefore, by passively accepting Dr.

Brenner’s note, the agency has not met its obligation of

good faith and due diligence to produce Goblet at the

deposition requested by the appellant. Consequently, we

find that the imposition of sanctions in this case was in the

interest of justice.

In any event, we find that the agency has not shown that it

was harmed by the imposition of the adverse inference

sanction. There are no affidavits attributable to Goblet in

the record, and the administrative judge never identified

any specific evidence in the record as to which he drew an

adverse inference, nor did he make any specific findings

based on the sanction. Moreover, the adverse inference

sanction does not affect our decision because we have not

relied on evidence attributable to Goblet.

The administrative judge incorrectly found that the

proposing and deciding officials were required to

determine whether Goblet’s whistleblowing was a

“significant factor” in the allegedly retaliatory actions at

issue. [5]

The agency further contends that the administrative

judge erred in requiring the proposing and deciding

officials to make specific determinations that Goblet’s

whistleblowing was a significant factor in the appellant’s

decisions to detail Goblet, and rate him as “minimally

satisfactory” on his performance appraisal. See PFR at

4-11. We agree.

To take an adverse action, an agency is required to show

only that its action promoted the efficiency of the service.

See 5 U.S.C. § 7513. Once an employee files an appeal of

the agency’s action with the Board, the administrative

judge will sustain the agency’s action if he determines that

the agency’s decision is supported by a preponderance

*112 of the evidence. See 5 U.S.C. § 7701(c)(1)(B).

Similarly, it is the administrative judge, not the agency,

who determines whether an employee’s whistleblowing

was a “significant factor” in an agency official’s decision

to take a personnel action against that employee.

Therefore, it was error for the administrative judge to find

that the proposing and deciding officials applied the wrong

evidentiary standard in reaching their decision because the

agency’s function is not adjudicatory, and it is not

responsible for applying the various burdens of proof and

evidentiary standards that are applicable in the Board’s

appellate procedures.

The initial decision does not contain findings and



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conclusions on all of the material issues presented below. [6]

The agency also contends that the administrative judge

did not consider the record as a whole in finding that the

agency had not established that Goblet’s disclosures were a

significant factor in the appellant’s decision to take the

personnel actions at issue. See PFR at 4-11. We agree.

[7]

[8]

[9]

An initial decision must identify all material issues

of fact and law, summarize the evidence, resolve issues of

credibility, and include the administrative judge’s

conclusions of law and his legal reasoning, as well as the

authorities on which that reasoning rests. See 5 C.F.R. §

1201.111(b); Spithaler v. Office of Personnel

Management, 2 MSPB 2, 1 M.S.P.R. 587, 589 (1980).

Here, the initial decision does not include findings of fact

and conclusions of law regarding the merits of the

agency’s charges based on all of the evidence of record.

The administrative judge analyzed the merits of the

agency’s charges based only on the agency’s decision

letter, the notice of proposed suspension, and brief excerpts

from Gallagher’s and Garfunkel’s depositions, without

considering other evidence in the record that supported the

agency’s decision. See ID at 2-8. Thus, the initial decision

deviates from the statutory requirement that decisions of an

agency based on chapter 75 of title 5, such as the agency’s

decision here, shall be sustained if the decision is

supported by a preponderance of the evidence. See 5

U.S.C. § 7701(c)(1)(B); 5 C.F.R. § 1201.56(a)(1)(ii);

Young v. Department of the Navy, 53 M.S.P.R. 384, 386-87

(1992). Although resolving conflicts in the evidence and

deciding issues of credibility are normally the province of

the administrative judge because he can assess the

credibility of witnesses based on their demeanor during the

hearing, we find that a remand is not necessary because the

appellant withdrew his request for a hearing.

The agency’s first charge is supported by preponderant

evidence.

The agency charged the appellant with violating 5 U.S.C. §

2302(b)(8) by retaliating against Goblet for making

protected disclosures. *113 The U.S. Court of Appeals for

the Federal Circuit provided a four-part test in Eidmann v.

Merit Systems Protection Board, 976 F.2d 1400, 1407

(Fed.Cir.1992), for analyzing disciplinary actions brought

by OSC against employees who have allegedly committed

such violations. In Frederick v. Department of Justice, 65

M.S.P.R. 517 (1994), the Board found that the standard

announced in Eidmann applies to a disciplinary action

brought by the agency against an appellant for violation of

5 U.S.C. § 2302(b)(8). See id. at 526. See also Caster v.

Department of the Army, 62 M.S.P.R. 436, 442-43 (1994)

(applying the four-part Eidmann test in a disciplinary

action brought by the agency against an appellant for

violation of 5 U.S.C. § 2302(b)(8)).

[10]

To establish that an employee engaged in the prohibited

personnel practice of whistleblower reprisal in violation of

5 U.S.C. § 2302(b)(8), the agency must prove: (1) The

acting official has the authority to take, recommend, or

approve any personnel action; (2) the aggrieved employee

made a disclosure protected under section 2302(b)(8); (3)

the acting official used his authority to take, or refuse to

take, a personnel action against the aggrieved employee;

(4) the acting official took, or failed to take, the personnel

action against the aggrieved employee because of the

protected disclosure. Eidmann, 976 F.2d at 1407.

[11]

To satisfy the first element, the agency must establish

that the appellant had the authority to “take, direct others to

take, recommend, or approve any personnel action.” See 5

U.S.C. § 2302(b)(8). Here, the record shows that the

appellant was the Director at the Center, and that he had

sufficient authority to recommend a personnel action

against Goblet. See IAF, Vol. 1, Tab 3, Subtab 4A; Vol. 3,

Tab 4a, Subtabs 4uu, xx. Therefore, the appellant

possessed the requisite authority under the statute. See

Special Counsel v. Harvey, 28 M.S.P.R. 595, 608 n. 25

(1984), rev’d on other grounds, 802 F.2d 537, 544

(D.C.Cir.1986).

[12]

[13]

The second element under section 2302(b)(8)

requires the agency to prove that Goblet made disclosures

protected under the WPA. For protection under the WPA,

whistleblowers must reasonably believe the disclosure

reveals legal violations, gross mismanagement, or

substantial and specific danger to public health and safety.

The test here therefore is whether a person with the

information that Goblet had could have reasonably

concluded that his disclosures were protected under 5

U.S.C. § 2302(b)(8). See Frederick, 65 M.S.P.R. at 531.

Since the OIG reports substantiated Goblet’s allegations

concerning the violation of various regulations at the

Center’s personnel office, see IAF, Vol. 2, Tab 4, Subtabs

4Q, W (Oct. 25, 1991, and Jan. 30, 1992 OIG Reports), we

find that he reasonably believed his *114 disclosures

uncovered numerous violations of agency and Federal

personnel regulations. Thus, the WPA protected Goblet’s

disclosures to OSC and the OIG.4

[14]

The third element requires the agency to show that the

appellant used his authority to take, or fail to take, or

threaten to take or fail to take, a personnel action against

Goblet. A “personnel action” includes details and

performance evaluations. 5 U.S.C. § 2302(a)(2)(A)(iv),

(viii). The record indicates that the appellant rated Goblet

as “minimally successful” on his performance appraisal,

and detailed him from his position as Chief Personnel












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Officer to a position in the patient library. See IAF, Vol. 2,

Tab 4, Subtab 4DD; Vol. 3, Tab 4a, Subtab 4UU. These

actions satisfy the third element.

[15]

The fourth element requires the agency to prove that the

appellant acted to terminate Goblet because of his

protected disclosures. 5 U.S.C. § 2302(b)(8). Under this

element, the agency must show, by a preponderance of the

evidence, that the protected disclosures were a significant

factor in the personnel actions that the appellant took

against Goblet. See Special Counsel v. Santella, 65

M.S.P.R. 452, 456-59 (1994). In Santella, the Board

concluded that the term “significant factor,” as that term is

used in OSC disciplinary cases, should be used only to

refer to a factor that played an important role in the

allegedly retaliatory action. See id. at 458. The Board

further held that the “significant factor” test is not met in

such cases unless the motivation for the action was an

improper one; it stated that evidence that the allegedly

retaliatory action was merely tangentially related to

protected conduct would not be sufficient under this test.

See id. at 458-59. Finally, it found that evidence that

respondents in such cases would have taken the retaliatory

actions absent the protected disclosures would mean that

the role that those disclosures played did not meet the

definition of “significant factor.” See id. Such evidence

should therefore be considered as part of the “significant

factor” analysis and not as a separate defense to the

allegation of reprisal. See id. In Frederick, the Board

adopted the Santella “significant factor” test in evaluating

a disciplinary proceeding brought *115 by an agency

rather than OSC. See Frederick, 65 M.S.P.R. at 528-529.

[16]

As to the agency’s first charge, the record indicates that

Goblet’s disclosures were a significant factor in the

appellant’s decision to give Goblet a “minimally

successful” rating on his performance appraisal for the

period from April 1, 1990, to March 31, 1991. In this

connection, we note that the appellant sought advice from

several personnel specialists at the CO regarding Goblet’s

performance appraisal. See IAF, Vol. 5, Tab 22 at 11-14.

Among those from whom the appellant sought advice were

Joyce Felder, the Associate Deputy Assistant Secretary for

Human Resources Management at the CO, and Katie

McCullough Bradshaw, an Employee Relations Specialist

at the CO. Id.

In her deposition, Felder stated that the information that the

appellant provided to the CO Personnel Office regarding

Goblet’s performance during the relevant rating period did

not support a rating of “minimally successful.” See IAF,

Vol. 7 (Exhibit AAA at 24). Furthermore, Bradshaw stated

in her deposition that the appellant had not provided any

documentation to support a rating of “minimally

successful” for Goblet, and that the appellant decided on a

“minimally successful” rating only after Bradshaw

informed him that there was no basis for taking any kind of

adverse action against Goblet based on his conduct. See

IAF, Vol. 6 (Exhibit SS at 17-20). Also, Audrey Funk, a

Personnel Management Evaluation Officer who conducted

an audit of the Personnel Office while Goblet was Chief,

found that, while there were communication problems

between Goblet and the appellant, the Personnel Office

was generally a “smooth running organization.” See IAF,

Vol. 3, Tab 4a, Subtab 4TT (Personnel Management

Evaluation Report at 1).

There were employees at the Center other than the

appellant, however, who had difficulties with Goblet. In an

August 9, 1989 memorandum, Dr. White stated that there

was a lack of communication between the Department of

Radiology and Personnel, and, in a July 19, 1989

memorandum, Jo Tirone, the Chief Resident Nurse,

informed Goblet that she disliked his management style,

and cited several instances of what she considered

inappropriate behavior on his part. See IAF, Vol. 3, Tab 4a,

Subtabs 4QQQ, UUU. Also, there were other employees at

the Center who found Goblet temperamental, irascible, and

prone to making inappropriate comments. See IAF, Vol. 6

(Exhibits GG-KK).

The appellant argued below that he would have given

Goblet a “minimally successful” performance appraisal

notwithstanding his disclosures to OSC and/or the OIG.

See IAF, Vol. 1, Tab 3, Subtab 4H; Vol. 5, Tab 22. In this

regard, the appellant contended that in his first *116

appraisal of Goblet’s performance in May 1990, the

appellant had raised concerns about Goblet’s rapport with

other staff members and generally unhelpful attitude

toward service chiefs, and that he had advised Goblet that

he needed to address those concerns to maintain a rating of

fully successful. See IAF, Vol. 1, Tab 3, Subtab 4H at 13;

Vol. 3, Tab 4a, Subtab 4III. Therefore, the appellant

contended that Goblet’s failure to improve in the areas

identified warranted his “minimally successful” rating. See

IAF, Vol. 1, Tab 3, Subtab 4H at 13. The appellant further

contended that, had he given the “minimally successful”

performance appraisal to Goblet in reprisal for the

disclosures that he had made, the appellant would not have

asked the CO for advice and assistance on the appraisal

prior to issuing it. Id.

Nonetheless, the documentation in the record that casts

Goblet in an unfavorable light concerns events that

occurred prior to the appraisal period for which the

appellant rated him as “minimally successful,” and none of

this evidence, considering the absence of any evidence

indicating that Goblet had performance problems during













the relevant period, supports the “minimally successful”

rating that the appellant gave Goblet. In this connection,

we note that, although the appellant stated below that

Goblet had failed to address the problems that the appellant

had identified when he had given him his first performance

appraisal, the appellant did not cite any specific evidence

to establish that Goblet continued to have these problems

during the rating period from April 1990, to March 31,

1991. Therefore, given that the appellant knew in January

1991 that Goblet’s disclosures to the OIG had resulted in a

second audit at the Center; that the appellant was eager to

take some kind of personnel action against Goblet during

the first six months of 1991; and that several Personnel

Specialists from whom the appellant had sought advice

regarding Goblet’s performance appraisal believed that

there was no basis to take any kind of action against him,

we find that Goblet’s protected disclosures were a

significant factor in the appellant’s decision to rate Goblet

as “minimally successful” on his performance appraisal.

Therefore, the appellant’s decision to rate Goblet as

“minimally successful” constituted whistleblower reprisal.

See Thompson v. Farm Credit Administration, 51 M.S.P.R.

569, 582-85 (1991). We further find that the appellant’s

actions violated the agency’s regulations regarding

employee conduct that were in effect at the time that the

action was taken. See 38 C.F.R. §§ 0.735-10(a), 10(b)(4),

10(e), 18, 21(l ) (1993).

The agency’s second charge is supported by

preponderant evidence. [17]

As to the agency’s second charge, we find that the

record indicates that Goblet’s disclosures were a

significant factor in the appellant’s decision to detail

Goblet to the Center’s patient library. In this regard, we

note that Bradshaw, who was assigned responsibility at the

CO for advising the appellant on any adverse action that he

*117 might take with respect to Goblet, informed the

appellant that Dr. White’s blackmail allegation5 did not

constitute a sufficient basis for detailing Goblet. See IAF,

Vol. 6 (Exhibit SS at 44-46). Furthermore, John DiNoto,

the agency’s District Counsel, informed the appellant that

the U.S. Attorney and the Federal Bureau of Investigation

(FBI) had no interest in pursuing the matter, and the OIG

concluded that the allegation was baseless. See IAF, Vol. 9

(Agency Exhibit 21, March 16, 1992 OIG Report at 5-7).

The appellant argued below that the detail was an

appropriate management action in response to what he and

others believed was a serious allegation against Goblet.

See IAF, Vol. 1, Tab 3, Subtab 4H; Vol. 5, Tab 22 at 41-46.

In this connection, the appellant stated that he took the

action only after he had received specific written

permission from his supervisor, Donald Burnette. Id.

Therefore, regardless of whether Goblet was a

whistleblower, the appellant contended that Goblet’s

actions towards Dr. White warranted the action taken. Id.

Also, in an option paper prepared for Garfunkel by James

Scargini, a personnel specialist at the CO, Scargini

recommended that the second charge not be sustained. See

IAF, Vol. 1, Tab 3, Subtab 4D. The report found that,

although there was no evidence that Goblet had attempted

to blackmail Dr. White, it appeared that Goblet might have

engaged in inappropriate behavior which warranted further

inquiry. Id.

Nonetheless, Garfunkel stated during his deposition that he

sustained the second charge because the September 12,

1991 white paper that the appellant sent to Burnette to

justify the detail cited Goblet’s disclosures to the OIG as

one of the bases for the action. See IAF, Vol. 2, Tab 4,

Subtab 4EE; Vol. 7 (Exhibit VV at 24-28). Garfunkel

further stated that he did not think that there was any basis

for detailing Goblet until the appellant had conducted an

investigation of the incident. See Vol. 7 (Exhibit VV at 27).

Therefore, Garfunkel *118 stated that the appellant must

have detailed Goblet because of his protected disclosures.

Id.

In addition, we note that, although the white paper refers to

allegedly inappropriate conduct by Goblet to support the

detail, most of the conduct cited occurred almost two years

prior to the blackmail allegation. Id. Therefore, if that

conduct were the reason for the disciplinary action, the

appellant likely would have taken action at that time, rather

than using that conduct as an excuse to detail Goblet 18

months later. Also, the only allegation of misconduct that

occurred in 1991 concerned an incident where Goblet

allegedly “lost self-control” and shouted profanities at

Audrey Funk during an interview. Id. The appellant did

not, however, discuss the incident with Funk, and she

stated in her deposition that, although Goblet was upset

during the interview, he was “only a little bit agitated,” and

that there was nothing extraordinary about his behavior.

See IAF, Vol. 6 (Exhibit YY).

Moreover, in a September 20, 1991 memorandum that the

appellant sent to Burnette after Goblet had been detailed,

the appellant complained about Goblet’s disclosures to the

OIG, and stated that he made the disclosures to “embarrass

the Medical Center and the Agency.” See IAF, Vol. 2, Tab

4, Subtab 4AA. Also, during an October 30, 1991

interview, the appellant told Billy Johnson, an OIG

investigator, that Goblet was “calling the [O]IG to make us

look bad.” See IAF, Vol. 2, Tab 4, Subtab 4R. Therefore,

given that there was little substance to the blackmail

allegation; that once the appellant learned of the allegation






he acted in great haste to detail Goblet, without conducting

a thorough investigation of the matter; that the appellant

was angry about Goblet’s disclosures to the OIG; and that

there was no other valid support in the appellant’s white

paper to justify detailing Goblet to the patient library, we

find that Goblet’s disclosures were a significant factor in

the appellant’s decision to detail Goblet from his position

as Chief Personnel Officer. Thus, we find that the

appellant’s action constituted whistleblower reprisal. We

further find that the appellant’s actions violated the

agency’s regulations regarding employee conduct that

were in effect at the time that the action was taken. See 38

C.F.R. §§ 0.735-10(a), 10(b)(4), 10(e), 18, 21(l ) (1993).

[18]

The agency’s second charge also states that the

appellant’s decision to continue Goblet’s detail after the

appellant was informed that the U.S. Attorney had declined

to investigate the blackmail allegation constituted

whistleblower reprisal. See IAF, Vol. 1, Tab 3, Subtab 4K.

In a sworn affidavit, DiNoto stated that on September 20,

1991, when he informed the appellant that the U.S.

Attorney had no interest in pursuing the blackmail

allegation, and that there would be no FBI investigation,

the appellant told him not to tell anyone about *119 the

declination because, if Goblet should learn of it, he might

change his mind about filing for disability retirement. See

IAF, Vol. 5, Tab 23 (DiNoto Affidavit at 5).

The appellant argued below that, despite DiNoto’s

speculation regarding the appellant’s motives for not

wishing to disclose the fact that the U.S. Attorney had

declined to pursue the blackmail allegation against Goblet,

the appellant was justified in continuing the detail until the

OIG completed its investigation of the incident. See IAF,

Vol. 1, Tab 3, Subtab 4H; Vol. 5, Tab 22 at 45-46. The

appellant further contended that, if the OIG had found

evidence of wrongdoing by Goblet, an administrative

action could have been taken against him, even if the U.S.

Attorney chose not to press a criminal action against him.

Id. The appellant also asserted that the reason that he did

not want information about the investigation disseminated

in the office was to protect Goblet’s privacy. Id.

Nevertheless, we find that, regardless of the appellant’s

original motive for detailing Goblet, there was no basis to

continue the detail once DiNoto had informed the appellant

that the U.S. Attorney would not pursue the matter. We

agree with Garfunkel that, once the appellant learned of the

declination, he should have returned the appellant to his

position and conducted his own investigation into the

allegation against Goblet. See Vol. 7 (Exhibit VV at

27-29). The appellant, however, continued the detail in

reprisal for Goblet’s protected disclosures to the OIG

and/or OSC. Therefore, we find that the appellant’s

continuance of the detail constituted whistleblower

reprisal, and that his actions violated the agency’s

regulations regarding employee conduct. See 38 C.F.R. §§

0.735-10(a), 10(b)(4), 10(e), 18, 21(l ) (1993).

The agency failed to establish the third charge by

preponderant evidence. [19]

With respect to the agency’s third charge, the appellant

has not denied giving Goblet the memorandum relieving

him of his duties in the presence of several other

departmental managers. See IAF, Vol. 1, Tab 3, Subtab 4G

(Appellant’s Declaration at 14). The appellant contends,

however, that he did not plan to give Goblet the

memorandum in the presence of other managers, and that

those managers had already been informed of the detail.

See IAF, Vol. 1, Tab 3, Subtab 4H; Vol. 5, Tab 22 at 51.

Consequently, he argues that his behavior was not

inappropriate. We agree.

There was no misconduct in presenting Goblet with the

letter that informed him of his detail to the library in the

presence of the other managers. These managers had been

notified of the content of the letter. It does not seem

unusual to have other managers present when presenting

an employee with unpopular news. Further, the *120

appellant testified that it was only an accident that the

managers were present at the time that Goblet came to the

office, since the appellant did not specify a time for Goblet

to see him, and these managers were in the appellant’s

office awaiting the appellant’s routine weekly national

conference call, rather than waiting to confront Goblet. We

further note that the conference call had not yet begun,

contrary to the proposal notice’s implication.

Moreover, there is no evidence to demonstrate that the

appellant was attempting to embarrass or humiliate Goblet

and there is no evidence to show that, in fact, Goblet was

embarrassed or humiliated. There is no direct testimony

from Goblet regarding his feelings and the testimony of

others supports the conclusion that Goblet was not

emotionally affected by the manner in which he received

the detail letter.

[20]

The appellant also argued below that the third charge

does not support a finding of whistleblower reprisal

because the allegations set forth in support of the charge do

not constitute a “personnel action” within the meaning of 5

U.S.C. § 2302(b)(8). See IAF, Vol. 5, Tab 22 at 48. We

agree.

Here, the act of transmitting the memorandum notifying

Goblet of the detail did not constitute a “personnel action.”

See Slake v. Department of the Treasury, 53 M.S.P.R. 207,










215 (1992) (the Board found that, although the denial of a

promotion is a “personnel action,” the cancellation of a

vacancy announcement is not because the Board cannot

extend its jurisdiction over any stage in the stream of

proceedings leading to a “personnel action”). Therefore,

we find that the agency did not establish by preponderant

evidence that the appellant’s manner of giving the

memorandum to Goblet constituted either whistleblower

reprisal or a violation of the agency’s regulations

concerning employee conduct.

The deciding official did not engage in improper ex parte

communications prior to issuing the agency’s decision

letter.

As an affirmative defense, the appellant contended below

that the deciding official, Sanford Garfunkel, engaged in

improper ex parte communications with OSC, which

influenced his decision to sustain the 30-day suspension

against the appellant. See IAF, Vol. 5, Tab 22 at 21-27. In

this connection, the appellant contended that Leslie Lubell,

OSC’s contact person for Goblet’s case, contacted

Garfunkel and informed him that if the agency did not

impose at least a 30-day suspension, OSC would exercise

its right to appeal the action. See id. at 23-24. In support of

his contention, the appellant cited Sullivan v. Department

of the Navy, 720 F.2d 1266, 1271-74 (Fed.Cir.1983). In

Sullivan, the U.S. Court of Appeals for the Federal Circuit

held that improper ex parte communications had occurred

where an agency *121 official against whom the appellant

had filed a grievance had sought to improperly influence

the deciding official to remove the appellant. Id.

[21]

[22]

The Board has held that there is no statutory or

regulatory prohibition against ex parte communications

between the deciding official and other agency officials or

persons during the agency’s decision making process. See

Anderson v. Department of Transportation, 59 M.S.P.R.

585, 595 (1993). The ultimate decision, however, must be

made by the deciding official. See Fontes v. Department of

Transportation, 51 M.S.P.R. 655, 668 (1991). Garfunkel

stated during his deposition that he had two brief

conversations with Lubell concerning the appellant’s case,

but that he could not even recall whether “it was actually

her that convinced” him to impose a 30-day suspension.

See IAF, Vol. 7 (Exhibit VV at 12-13). Since Garfunkel

could not recall whether Lubell even persuaded him that a

30-day suspension was appropriate, we find that whatever

influence OSC had in this case was minimal and did not

rise to the same coercive level found by the court in

Sullivan. See Sullivan, 720 F.2d at 1270-71. Therefore,

since he has not established that the ultimate decision to

suspend him was not made by Garfunkel, the appellant has

not shown harmful error. See Anderson, 59 M.S.P.R. at

595.

The appellant’s conduct warranted disciplinary action

under 5 U.S.C. § 7543, and a 15-day suspension is the

maximum reasonable penalty under the circumstances of

the case. [23]

The record indicates that the appellant is a member of

the Senior Executive Service (SES). See IAF, Vol. 1, Tab

3, Subtab 4A. An agency may take an adverse action

against an SES employee only for misconduct, neglect of

duty, malfeasance, or failure to accept a directed

reassignment or to accompany a position in a transfer of

function. See 5 U.S.C. § 7543(a). Since Congress has

enacted legislation to deter whistleblower retaliation, we

find that the sustained charges constitute misconduct. See 5

U.S.C. § 2302(b)(8). We further find that the appellant’s

violation of the agency’s regulations constituted

misconduct. See 38 C.F.R. §§ 0.735-10(a), 10(b)(4), 10(e),

18, 21(l ) (1993).

[24]

[25]

[26]

Whenever the agency’s action is based on

multiple charges some of which are not sustained, the

administrative judge should consider carefully whether the

sustained charges merited the penalty imposed by the

agency. Douglas v. Veterans Administration, 5 MSPB 313,

5 M.S.P.R. 280, 308 (1981). We note that an SES

supervisor must be expected to conform to a higher

standard of conduct than other employees. See Dolezal v.

Department of the Army, 58 M.S.P.R. 64, 71 (1993), aff’d,

22 F.3d 1104 (Fed.Cir.1994) (Table). Also, an agency is

permitted to take disciplinary action *122 against a

supervisor who retaliates against an employee because of

his protected disclosures. See Eidmann, 976 F.2d at

1407-08. In this case, we find that the maximum

reasonable penalty based on the sustained charges is a

15-day suspension.

ORDER

We ORDER the agency to cancel the appellant’s 30-day

suspension and to substitute in lieu thereof a 15-day

suspension. See Kerr v. National Endowment for the Arts,

726 F.2d 730 (Fed.Cir.1984). The agency must accomplish

this action within 20 days of the date of this decision.

We also ORDER the agency to issue a check to the

appellant for the appropriate 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























http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1994068980&pubNum=506&originatingDoc=I09db5467549911dbbb4d83d7c3c3a165&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Search)







the appellant to cooperate in good faith in the agency’s

efforts to compute the amount of back pay, interest, and

benefits due, and to provide all necessary information the

agency requests to help it comply. If there is a dispute

about the amount of back pay, interest due, and/or other

benefits, we ORDER the agency to issue a check to the

appellant for the undisputed amount no later than 60

calendar days after the date of this decision.

We further ORDER the agency to inform the appellant in

writing of all actions taken to comply with the Board’s

Order and of the date on which the agency believes it has

fully complied. If not notified, the appellant should ask the

agency about its efforts to comply.

Within 30 days of the agency’s notification of compliance,

the appellant may file a petition for enforcement with the

regional office to resolve any disputed compliance issue or

issues. The petition should contain specific reasons why

the appellant believes that there is insufficient compliance,

and should include the dates and results of any

communications with the agency about compliance.

This is the final order of the Merit Systems Protection

Board in this appeal. 5 C.F.R. § 1201.113(c).

NOTICE TO APPELLANT

You have the right to request the United States Court of

Appeals for the Federal Circuit to review the Board’s final

decision in your appeal if the court has jurisdiction. See 5

U.S.C. § 7703(a)(1). You must submit your request to the

court at the following address:

*123 United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later

than 30 calendar days after receipt of this order by your

representative, if you have one, or receipt by you

personally, whichever receipt occurs first. See 5 U.S.C. §

7703(b)(1).

For the Board:

ROBERT E. TAYLOR,

WASHINGTON, D.C.

CONCURRING OPINION OF BENJAMIN L.

ERDREICH, CHAIRMAN.

While I concur with the decision in this case, where one or

more charges are not sustained I believe the Board errs to

engage in deference to the penalty action of the agency, for

we do not have before us the penalty judgment of an

agency to which the penalty selection standards of Douglas

v. Veterans Administration, 5 MSPB 313, 5 M.S.P.R. 280

(1981) must be applied. For the reasons stated in my

dissents in Holt v. United States Postal Service, 63

M.S.P.R. 198 (1994)1 and Tanner v. Department of

Transportation, 65 M.S.P.R. 169 (1994), I would analyze

the facts of this case to identify the appropriate penalty,

applying the standards of Douglas.

As for the Member’s comments contained in his

concurring opinion, in general I agree with him. When

reviewing the penalty involved in a case, the Board should

defer to the penalty selection judgment made by an agency

because the agency is, of course, in the better position to

adjudge what penalty best fits the sustained charges.

However, as Douglas teaches, “the ultimate burden is upon

the agency to persuade the Board of the appropriateness of

the penalty imposed,” Douglas, 5 M.S.P.R. at 307, and the

Board must apply the Douglas factors to “bring the penalty

within the parameters of reasonableness,” Douglas, 5

M.S.P.R. at 306. In other words, in situations where the

charges brought by the agency are sustained on appeal, the

Board’s responsibility then is to ensure that the penalty

selected by the agency is within the reasonable limit of

possible penalties.

*124 What the Member fails to address in his concurring

opinion is the inherent logical distinction between cases in

which the Board is reviewing a penalty based on all

charges brought by the agency being sustained, and cases,

as here, in which only some of the charges brought by the

agency are sustained. When all charges are sustained, the

agency’s penalty determination was based on those

charges and warrants deference, upon a showing by the

agency of the appropriateness and reasonableness of the

penalty in consideration of the Douglas factors. However,

when some of the charges fail on appeal, it cannot be said

that the agency has made any penalty determination to

which the Board can defer regarding the remaining

charges.2 To defer to the agency in such a situation, the

Member, as I stated in my dissent in Holt, “is indulging in a





















fiction, for at this point with some of the charges not

sustained, it cannot be said that the agency actually made a

penalty determination as to the remaining charges.” Holt,

63 M.S.P.R. at 209.

Certainly the agency has taken action; it has enforced a

penalty against the appellant. What is lacking is a reasoned

judgment by the agency as to the penalty, to which the

Douglas standards must be applied. The penalty judgment,

of course, was based on all the charges brought. When

some of the charges are not sustained on appeal, there is no

judgment of the agency regarding the most appropriate

penalty for the misconduct of the remaining sustained

charges. Its judgment was exercised only in consideration

of all of the charges brought. It has not exercised its

judgment in regards to misconduct described by fewer than

the initial charges upon which its penalty was predicated.

Without an exercise of judgment by the agency regarding

the remaining sustained charges, there is nothing to which

the Board can defer.

In a simple example, if an agency removes an employee for

fighting and for being one minute tardy, the agency made a

penalty determination because the agency has determined

that removal is appropriate for fighting and being tardy.

However, if the fighting charge is not sustained on appeal,

the Board should not “defer” to the agency’s penalty

determination because the agency has not determined what

penalty is appropriate for being one minute tardy. It has

made no judgment regarding this single act of misconduct

because it considered both acts of misconduct when

determining a penalty. Without a judgment by the agency

to defer to, the most reasonable path for the *125 Board to

take is for it to determine the most appropriate penalty

given the circumstances of the sustained charges in the

case. Indeed, this is precisely what Douglas dictates:

Whenever the agency’s action is based on multiple charges

some of which are not sustained, the presiding official

should consider carefully whether the sustained charges

merited the penalty imposed by the agency. 5 M.S.P.R. at

308.

Recently when reviewing cases in which one or more of

the charges brought by the agency fail on appeal, the

Federal Circuit Court of Appeals chose not to defer to the

agency’s penalty. Rather it remanded the case for a

determination of the “appropriate” lesser penalty.3 I align

myself with the Board’s case law beginning in Douglas

and our superior court’s most recent proclamations

regarding the appropriate penalty in a case such as this, and

remain convinced that my approach is the better course.

CONCURRING OPINION OF ANTONIO C. AMADOR,

MEMBER.

I write separately to explain that the position set forth in the

Chairman’s concurring opinion has been repeatedly

rejected by both the Board and the Court of Appeals for the

Federal Circuit.1

When only some of the charges against an appellant have

been sustained, it is axiomatic that the agency-imposed

penalty is not entitled to special deference;2 nevertheless,

the Board still must determine whether the

agency-imposed penalty exceeds the maximum reasonable

penalty, not determine what penalty would be “best” or

most reasonable. See Williams v. Department of the Air

Force, 41 M.S.P.R. 173, 179 (1989). That is, the Board

must carefully consider whether the sustained charges

merit the penalty imposed by the agency. *126 Bree v.

Department of Health and Human Services, 49 M.S.P.R.

68, 72 (1991). The process of mitigation is not a

mathematical one and does not require that the penalty

previously imposed must be reduced by the percentage of

the unsustained charges and specifications. See, e.g.,

Valdez v. Department of Justice, 65 M.S.P.R. 390, 394

(1994).

The Chairman basically avers that this process reflects an

erroneous legal standard. He advocates that the Board

should conduct a review of the relevant factors under

Douglas v. Veterans Administration, 5 MSPB 313, 5

M.S.P.R. 280, 306 (1981), and independently determine

the appropriate penalty for the sustained charges. Thus, he

would afford the agency’s penalty determination no

deference at all.

The Board, however, is not faced with a choice between

deferring to or not deferring to an agency’s penalty

determination. Consistent with Douglas, 5 M.S.P.R. 280,

the Board gives greater deference to agency-imposed

penalties when all of the charges are sustained and less

deference when not all are sustained. In Douglas, the

Board noted that:

Any margin of discretion available to the Board in

reviewing penalties must be exercised with appropriate

deference to the primary discretion which has been

entrusted to agency management, not to the Board.

Id. 5 M.S.P.R. at 301 (emphasis added). Although the

administrative judge “should consider carefully whether

the sustained charge merited the penalty imposed by the

agency” when not all charges are sustained, and although

“the initial decision should contain a reasoned explanation

of the [administrative judge’s] decision to sustain or

modify the penalty” whenever “the appropriateness of the

penalty has been placed in issue,” the agency-imposed





















penalty is still entitled to some deference. Id. 5 M.S.P.R. at

308.

I note that, in Douglas, the Board found support in the

legislative history of the Civil Service Reform Act of 1978

(CSRA) for present practice. See Douglas, 5 M.S.P.R. at

298-99. Specifically, the Board found that the legislative

history of the CSRA indicated Congressional intent to

“codify [ ] the standard of proof previously used by the

[Civil Service] Commission for misconduct cases,” id. 5

M.S.P.R. at 298, and there was “no suggestion in the

[CSRA] or its legislative history that Congress sought to

alter the scope of the authority previously exercised by the

Commission in reviewing agency-imposed penalties,” id. 5

M.S.P.R. at 299. Furthermore, the limited nature of the

Board’s authority to review and to mitigate penalties dates

back to an 1897 civil service rule. Id. 5 M.S.P.R. at

299-300.

To analyze the facts of the case and then to identify the

appropriate penalty, as the Chairman advocates in his

separate opinion, would require overruling some of the

most important holdings in Douglas, *127 i.e., those

related to the limited nature of the Board’s authority to

mitigate penalties, and would represent a major departure

from longstanding Board practice. More importantly, this

practice would be inconsistent with many precedential

Federal Circuit decisions.3

For example, in Hayes v. Department of the Navy, 727 F.2d

1535, 1540 (Fed.Cir.1984), the court indicated that the

Board has-

the authority to mitigate an

agency-imposed penalty when it is

clearly excessive with respect to the

sustained charges, i.e., is arbitrary,

capricious or unreasonable or exceeds

the agency’s Table of Penalties.

Id. (emphasis added). The court, referring to Douglas,

stated further that:

Any margin of discretion available to

the Board in reviewing penalties must

be exercised with appropriate

deference to the primary discretion

which has been entrusted to agency

management, not to the Board.

Id. (emphasis added). The court added that “[t]his view is

confirmed by recent case law.” Id.

Likewise, in Beard v. General Services Administration,

801 F.2d 1318 (Fed.Cir.1986), the court rejected the

employee’s claim that the CSRA “requires the Board to

determine independently the proper penalty, and that if the

statute does not so require, it unconstitutionally denied him

his right to a penalty determination by an independent

decisionmaker.” Id. at 1321. In rejecting this claim, the

court stated that:

Prior to the [CSRA], it was “well established that the

penalty for employee misconduct [was] a matter usually

left to the sound discretion of the executive agency,” and

that the penalty could be rejected only if “the punishment

exceed [ed] the range of sanctions permitted by statute or

regulation” “or if the penalty [was] so harsh that it

amount[ed] to an abuse of discretion.”

Id. The court stated further that:

This principle reflects the important

policy consideration that the

employing (and not the reviewing)

agency is in the best position to *128

judge the impact of the employee

misconduct upon the operations of the

agency, the prospects for the

employee’s rehabilitation and

improvement, and the need to

maintain and encourage high

standards of conduct by all employees.

Id. In addition, the court noted that it “discern[ed] nothing

in either the language or the legislative history of the

[CSRA] that support[ed], much less require[d],” the

greater role in mitigating penalties that the employee had

argued that the Board should play. Beard, 801 F.2d at

1322. It stated that:

The conclusion that the Board is to

review agency penalties under the

abuse-of-discretion standard and not

itself to determine the appropriate

penalty comports with the language

and purpose of the [CSRA] and is

consistent with settled principles of

administrative law governing review

of agency penalties.

Id.

Moreover, in Weiss v. United States Postal Service, 700

F.2d 754, 757 (1st Cir.1983), the Court of Appeals for the

First Circuit rejected the appellant’s assertion that the

Board should review agency penalty determinations under























a preponderance-of-the-evidence standard rather than an

abuse-of-discretion standard. In its decision, the First

Circuit noted that, prior to the CSRA, an agency’s penalty

determination was committed to agency discretion and

would be reversed only where the punishment exceeded

the range of sanctions permitted by statute or amounted to

an abuse of discretion. Id. at 758. The court stated that:

We see nothing in the [CSRA] that

suggests that Congress intended to

alter that rule. To the contrary, the

legislative history of the [CSRA]

supports our decision that penalty

determinations are judgment calls that

should be left to the discretion of the

employing agency.

Id. The court noted that Congress intended the CSRA to

serve the “dual objective of ‘increas[ing] the procedural

protections afforded employees, while also protecting the

right of agencies to be able to maintain the most efficient

workforce possible,’ ” id., and found that this purpose was-

well served by applying the

preponderance of the evidence

standard to the factual determination

whether or not the employee

committed acts warranting discipline,

but leaving to the agency’s discretion

the judgment of what penalty should

be imposed. In that manner, the

MSPB, a neutral adjudicative body,

determines whether the employee is

guilty of the charged conduct, thus

guarding against political abuse and

safeguarding merit principles. Once

the charges are sustained, however,

efficient management is served by

allowing the agency, within broad

limits, to assess the severity of the

penalty *129 necessary ... [to deter

employee misconduct.] To interpret [5

U.S.C.] § 7701(c)(1)(B) as does [the

appellant] would be to go far in the

direction of stripping the employing

agency of the type of managerial

authority Congress intended it have,

for under a preponderance standard, a

standard ordinarily used for

determining facts, the MSPB, rather

than the employing agency, would be

the primary decision maker.

Id. at 758-59 (emphasis added). The Federal Circuit in

Beard expressed its agreement with the reasoning in Weiss.

See Beard, 801 F.2d at 1322-23.

All Citations

68 M.S.P.R. 100

Footnotes 1

The agency contended that the appellant’s conduct violated 38 C.F.R. § 0.735-10(a), requiring that agency employees conduct themselves in a manner reflecting credit upon themselves and the agency; section 0.735-10(b)(4), requiring that employees avoid the appearance of impropriety; section 0.735-10(e), requiring agency supervisors to set an example for subordinate employees by dealing with them considerately and impartially, and by showing sincere concern for them as individuals; section 0.735-18, requiring that employees not engage in conduct unbecoming a federal employee; and section 0.735-21(l ), prohibiting employees from violating Civil Service laws, rules, regulations, policies and standards. Although these regulations are no longer in effect, the regulations in effect at the time that the agency took the action apply in this appeal. See Hill v. Department of the Air Force, 42 M.S.P.R. 187, 190 (1989). The Board has found that an adverse action commences with the employee’s receipt of the proposal notice. See Bucci v. Department of Education, 43 M.S.P.R. 558, 562 (1990). Since the appellant received the proposal notice on July 13, 1993, the regulations in effect on that date apply. See 38 C.F.R. Part 0.735 Subpart B (1993).

2

Stand-by pay is a special rate of pay for physicians who perform a certain amount of work outside of the specialty for which they were originally hired by the agency. See IAF, Vol. 6 (Exhibit TT).

3

The appellant withdrew his request for a hearing. See IAF, Vol. 4, Tab 15.

4

To the extent that the appellant argued below that Goblet could not be afforded whistleblower status because his prime motivation in making the disclosures was to malign the appellant and create havoc at the Center, we note that the Board has specifically rejected the proposition that an employee’s disclosures are not protected where his primary motivation was not for the public good, but rather for his personal motives. See Horton v. Department of the Navy, 60 M.S.P.R. 397,


















403 (1994). See also Frederick, 65 M.S.P.R. at 530-31 (the Board held that personal motivation was not relevant to a

determination of whether an employee genuinely believed that his disclosures were protected under 5 U.S.C. § 2302(b)(8)).

5

The blackmail allegation against Goblet arose from a conversation on September 5, 1991, between Goblet and Dr. White about an August 9, 1989 memorandum that Dr. White had written to the Chief of Staff at the Center two years earlier, complaining of the Personnel Office’s lack of support for the Radiology Department. See IAF, Vol. 2, Tab 4, Subtab 4HH. During the conversation, Goblet asked Dr. White to withdraw the unfavorable memorandum, which Goblet believed the appellant would use against him. Id. At that time, Dr. White believed that Goblet was needlessly delaying the submission to the CO of a justification and request for an increase in his pay. Id. Dr. White interpreted Goblet’s request as an offer to act on his physician pay package if Dr. White would withdraw the memorandum, even though Goblet had asked Dr. White to withdraw the memorandum on several other occasions. Id. Therefore, Dr. White concluded that his pay was improperly held up by Goblet, and he contacted the appellant regarding the incident. See id.; IAF, Vol. 7 (Exhibit YY at 18).

1

As the Member’s concurring opinion notes, the Federal Circuit Court of Appeals recently affirmed the outcome of the Board’s decision in Holt. See Holt v. United States Postal Service, No. 94-3472, 1995 WL 380591 (Fed.Cir. March 13, 1995). However, the decision of the court was simply a one sentence, per curiam, non-precedential affirmance issued without reason or rationale and without reference to or identification of what arguments and issues were presented to the court for consideration. Such a decision cannot be said to be an affirmative rejection of the position I put forward in my dissent to the majority opinion in the Board’s Holt decision.

2

Although the Member’s concurring opinion argues that this issue is well-settled by the courts, I would disagree. Most all of the cases relied on by the Member for support of his position involve cases in which all of the charges brought by the agency were sustained. See Hayes v. Department of the Navy, 727 F.2d 1535 (Fed.Cir.1984), Beard v. General Services Administration, 801 F.2d 1318 (Fed.Cir.1986), and Weiss v. U.S. Postal Service, 700 F.2d 754 (1st Cir.1983).

3

See, e.g., Futrell v. Justice, No. 93-3450, 1994 WL 374525 (Fed.Cir. July 14, 1994) (NP) and Litoff v. Air Force, No. 93-3573, 1994 WL 521088 (Fed.Cir. September 26, 1994) (NP).

1

The Chairman refers to his dissenting opinion in Holt v. United States Postal Service, 63 M.S.P.R. 198, 200 (1994). The court recently affirmed the Board’s decision in that case. Holt v. United States Postal Service, No. 94-3472, 1995 WL 380591 (Fed.Cir. Mar. 13, 1995).

2

In the third paragraph of his separate opinion, the Chairman claims that I have failed to address “the inherent logical distinction between cases” where we have sustained all the agency’s charges and those cases where we have sustained only some of the charges. In our duel, in which he persists in his attempt to impose a new legal standard, the Chairman jousts with references to an “inherent logical distinction” and a legal “fiction,” inadequate weapons compared to the weight of court decisions to which I have cited above.

3

I note that the Chairman has cited to two non-precedential court cases, Futrell v. Department of Justice, 31 F.3d 1177 (Fed.Cir.1994) (Table), and Litoff v. Department of the Air Force, 36 F.3d 1117 (Fed.Cir.1994) (Table), as support for his conclusion that the court’s most recent proclamations apply his standard. Recognizing that non-precedential cases may not be cited as authority, I will not examine the particular circumstances of those two cases; I note, however, that the court’s decision to remand a case for a penalty determination does not indicate that the court has changed its guidance under the standards of Douglas and other fundamental decisions. It may indicate that the court found the penalty inappropriate under the circumstances, i.e., so disproportionate to the offense that the Board abused its discretionary review authority. See, e.g., Parker v. United States Postal Service, 819 F.2d 1113, 1116 (Fed.Cir.1987).

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