The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TROY W. MILLER, DOCKET NUMBER
Appellant, DA-1221-11-0401-W-3
v.
DEPARTMENT OF JUSTICE, DATE: April 8, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Dennis L. Friedman, Esquire, Philadelphia, Pennsylvania, for the appellant.
John T. LeMaster, Esquire, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in his individual right of action (IRA)
appeal. Generally, we grant petitions such as this one only when: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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).
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of the law to the facts of the case; the judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. See
Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, and based on the
following points and authorities, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 The appellant formerly held the position of Superintendent of Industries,
GS-13, with the agency’s Federal Bureau of Prisons. Hearing Transcript (HT) at
6-8. The appellant’s primary duty as Superintendent of Industries was to
supervise the running of a UNICOR factory that produced helmets for the
military. HT at 8-11. UNICOR is the trade name for Federal Prison Industries, a
government-owned corporation that employs inmates incarcerated in correctional
facilities under the Federal Bureau of Prisons. HT at 227. The appellant filed an
appeal with the Board alleging that he was reassigned out of his position into a
series of temporary assignments, and then finally to the position of Management
Analyst, GS-13, in retaliation for whistleblowing activity, specifically, a verbal
disclosure on October 7, 2009, and verbal and written disclosures on December
16, 2009, of gross mismanagement and the gross waste of funds in the factory’s
operations. Initial Appeal File (IAF), Tab 10 at 1.
¶3 After holding a hearing, the administrative judge issued an initial decision
finding that the appellant had established by a preponderance of the evidence that
he had made protected disclosures under 5 U.S.C. § 2302(b)(8) that were a
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contributing factor in the decision to reassign him, but the agency had established
by clear and convincing evidence that it would have reassigned the appellant in
the absence of his disclosures. IAF, Tab 12, Initial Decision (ID) at 9, 18.
¶4 The appellant has filed a petition for review of the initial decision arguing
that the administrative judge incorrectly found that the agency met its burden of
proving by clear and convincing evidence that it would have reassigned him in
the absence of his disclosures. Petition for Review (PFR) File, Tab 6. The
agency has filed a response in opposition to the appellant’s petition. PFR File,
Tab 7.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 When reviewing the merits of an IRA appeal, if the appellant is able to
prove by a preponderance of the evidence that he made a protected disclosure
under 5 U.S.C. § 2302(b)(8) that was a contributing factor in an agency’s
personnel action, then the Board must order corrective action unless the agency
can establish by clear and convincing evidence that it would have taken the same
personnel action in the absence of the disclosure. Chavez v. Department of
Veterans Affairs, 120 M.S.P.R. 285, ¶ 17 (2013). Clear and convincing evidence
is that measure or degree of proof that produces in the mind of the trier of fact a
firm belief as to the allegations sought to be established. Id. The administrative
judge, having determined that the appellant proved by a preponderance of the
evidence that his two disclosures were a contributing factor in the decision to
reassign him, analyzed whether the agency had established by clear and
convincing evidence that it would have reassigned the appellant in the absence of
the disclosures. ID at 6-9, 11-18.
¶6 One of the appellant’s supervisors testified that the appellant was initially
reassigned because the Office of the Inspector General (OIG) requested that he be
removed from the operational aspects of the UNICOR factory during an
investigation. HT at 321-22. OIG raised concerns that the appellant’s presence
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might compromise the integrity of the investigation. HT at 361. The supervisor
also testified that OIG subsequently requested that he be removed from a set of
temporary duties because of accusations that the appellant was hampering the
investigation by having conversations with inmates who had worked at the
factory. HT at 325-26, 353. The supervisor further testified that the appellant
was removed from another set of temporary duties at OIG’s request after
accusations that the appellant was monitoring the phone calls of inmates who had
worked in the factory specifically to gain information about the investigation. HT
at 326-29. The supervisor testified to the increasing difficulty in identifying
duties that the appellant could perform during the investigation. HT at 291-94.
The factory closure at the appellant’s facility was announced around September
2011. HT at 339. On June 14, 2012, the appellant received a directed
reassignment to the position of Management Analyst, GS-13. IAF, Tab 6 at
11-17.
¶7 In determining whether an agency has shown by clear and convincing
evidence that it would have taken the same personnel action in the absence of the
protected disclosure, the Board generally considers the strength of the agency’s
evidence in support of its action, the existence and strength of any motive to
retaliate on the part of the agency officials who were involved in the decision,
and 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). The Board does
not view the Carr factors as discrete elements, each of which the agency must
prove by clear and convincing evidence, but will weigh the factors together to
determine whether the evidence is clear and convincing as a whole. McCarthy v.
International Boundary & Water Commission, 116 M.S.P.R. 594, ¶ 44 (2011),
aff’d, 497 F. App’x 4 (Fed. Cir. 2012), cert. denied, 134 S. Ct. 386 (2013).
¶8 In applying the Carr factors, the administrative judge considered the
evidence and testimony presented by both the agency and the appellant. ID at
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6-9, 11-18. The administrative judge found that the appellant’s supervisor had
little motive to retaliate because he had no vested interest in the subject of the
disclosures, i.e., alleged mismanagement and the waste of funds at UNICOR.
E.g., ID at 7, 13, 18. The administrative judge also found that considerable
unrebutted evidence supported the agency’s stated reason for reassigning the
appellant in the manner that it did. E.g., ID at 8-9, 14, 17-18. The administrative
judge found that there were no similarly situated-employees, and, therefore, no
basis for evaluating whether the agency took similar actions against
non-whistleblowers under comparable circumstances. ID at 9, 18.
¶9 The appellant argues on review that his supervisor’s testimony concerning
his reassignment was based “in its entirety” on hearsay and without corroborating
evidence and thus lacks the persuasiveness necessary to meet the clear and
convincing evidence standard. PFR File, Tab 6 at 12-14. The supervisor’s
testimony about what he was told by OIG is not hearsay. See Fed. R. Evid.
801(c) (defining “hearsay” as a statement, other than one made by the declarant
while testifying at the trial or hearing, offered into evidence to prove the truth of
the matter asserted). His testimony is direct evidence, i.e., his own personal
knowledge gained by hearing directly from OIG. 2 See, e.g., HT at 321. As noted
in the initial decision, the record contains evidence that corroborates the
supervisor testimony. The appellant sent an email on December 16, 2009, stating
that he had been removed from the factory on December 15, 2009, due to the OIG
investigation. ID at 9. The appellant testified that his supervisor called him and
told him he was being removed because OIG was coming to do an investigation
with his staff. Id. The nature and scope of the investigation, including the
involvement of the U.S. Attorney’s Office, also corroborates the supervisor’s
testimony. ID at 17-18; HT at 104-10.
2
In any event, hearsay evidence is admissible in Board proceedings, but the assessment
of the probative value of hearsay evidence necessarily depends on the circumstances of
each case. Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 83-87 (1981).
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¶10 Next, the appellant argues that the administrative judge erred in failing to
properly consider certain factors in assessing whether the supervisor’s testimony
was credible. PFR File, Tab 6 at 13-15. Specifically, he argues that the
supervisor’s testimony, that OIG directed his reassignment because OIG has no
administrative authority over Federal Bureau of Prisons employees, is inherently
improbable. Id. at 14-15. The appellant also argues that his supervisor’s
testimony was inherently improbable because the agency never produced
documentary evidence of OIG’s request, the appellant was never given written
notice regarding the reasons for the reassignment, and many of his temporary
duties were not commensurate with the grade level of his position. Id. We find
these arguments unpersuasive. The appellant’s supervisor testified that OIG
requested that the appellant be reassigned, the request was discussed amongst the
appellant’s supervisor, his regional director, and UNICOR’s central office, and
the agency decided to reassign the appellant. HT at 321-24. The appellant’s
supervisors further explained that it was difficult to find duties for the appellant
that were commensurate with his grade level during the protracted OIG
investigation because OIG asked that he not have access to the inmates who had
worked in the factory, and he could no longer access the UNICOR computer. See
HT at 292, 330-32. We find that it is not inherently improbable that OIG would
ask that the appellant be reassigned during its investigation, or that the agency
would comply with this request, given the apparent scope of the investigation and
the possibility of criminal charges against the appellant. See HT at 104-10,
287-91, 297, 321-22.
¶11 The appellant argues, moreover, that his supervisor had a strong retaliatory
motive because his disclosures were an impediment to the supervisor’s interest in
maximizing inmate employment in the “highly profitable” helmet production
business. PFR File, Tab 6 at 15. The record, however, does not support such a
conclusion. We agree with the administrative judge’s finding that the supervisor
had little to no motive to retaliate because he possessed little knowledge as to the
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products manufactured in the factory, exercised no responsibility or influence
over the business decisions at the factory, and was not principally interested in
whether the factory was profitable or not, as long as it continued to provide
training and employment for inmates. ID at 7. We also agree with the
administrative judge’s finding that the supervisor had little motive to retaliate
based on the appellant’s disclosures because, when the appellant made his
disclosures, OIG’s investigation into the factory’s operations was already
underway. ID at 13.
¶12 In sum, we find that the appellant’s assertions on review reflect mere
disagreements with the administrative judge’s well-reasoned and thoroughly
explained findings. After considering the arguments raised by the appellant in his
petition for review, we find no basis to disturb the administrative judge’s finding
that the agency established by clear and convincing evidence that it would have
reassigned the appellant in the absence of his disclosures. See Crosby v. U.S.
Postal Service, 74 M.S.P.R. 98, 106 (1997).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. The court must receive your
request for review no later than 60 calendar days after the date of this order. See
5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27, 2012). If you choose to file, be
very careful to file on time. The court has held that normally it does not have the
authority to waive this statutory deadline and that filings that do not comply with
the deadline must be dismissed. See Pinat v. Office of Personnel Management,
931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
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may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information about the United States Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for a list of attorneys who have expressed
interest in providing pro bono representation for Merit Systems Protection Board
appellants before the Federal Circuit. The Merit Systems Protection Board
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neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.