The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FROYLAN MENDIOLA, DOCKET NUMBERS
Appellant, SF-1221-13-0440-W-1
SF-0752-13-0436-I-1
v.
DEPARTMENT OF HOMELAND
SECURITY, DATE: September 21, 2015
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Acrivi Coromelas, Esquire, Anne Richardson, Esquire, Barbara Enloe
Hadsell, Esquire, and Mary T. Ross, Esquire, Pasadena, California, for
the appellant.
Ronald P. Ackerman, Esquire, Culver City, California, for the appellant.
Amy L. Dell, San Diego, California, for the agency.
Janet W. Muller, Chula Vista, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
REMAND ORDER
¶1 The agency has filed a petition for review of the initial decision in these
individual right of action (IRA) and removal appeals, which ordered corrective
action in the IRA appeal, reversed the appellant’s removal, and found that the
appellant proved his affirmative defenses of whistleblower reprisal and
retaliation for protected equal employment opportunity (EEO) activity. For the
reasons discussed below, we GRANT the agency’s petition for review, VACATE
the initial decision, and REMAND the case to the regional office for further
adjudication in accordance with this Order.
BACKGROUND
¶2 The appellant was a GS-12 Border Patrol Agent (BPA) with the agency’s
Office of Border Control’s Murrieta Station (Murrieta) in Temecula, California.
Mendiola v. Department of Homeland Security, MSPB Docket No. SF-0752-13-
0436-I-1, Initial Appeal File (IAF), Tab 7 at 25-26. On April 16, 2012, he filed a
complaint with the Department of Justice (DOJ) alleging that other law
enforcement agencies were engaging in racial profiling against individuals of
Hispanic/Latino descent and that his superiors were supporting such activity.
IAF, Tab 14, Exhibit (Ex.) Y. 2 In particular, the appellant alleged as follows:
(1) in response to his allegation that deputy sheriffs from the Riverside County
Sheriff’s Department were engaging in racial profiling, his watch commander,
Field Operations Supervisor V.J., 3 ordered the appellant’s patrol group to arrest
every alien that was turned over to Border Patrol by other law enforcement
agencies, regardless of whether the alien was likely to abscond; (2) on March 25,
2
On April 1, 2012, the appellant sent an email to agency attorney C.C. making many of
the allegations that he subsequently raised in his DOJ complaint. See IAF, Tab 14,
Ex. W. In his email, the appellant stated that he would file a complaint with DOJ if the
agency did not “rectify” the racial profiling matter. Id. at 005.
3
V.J. was the appellant’s second-level supervisor. See IAF, Tab 34, Hearing
Transcript, Day 1 (HT1) at 140, lines 11-19 (testimony of H.V.).
3
2012, V.J. ordered the appellant to alter an arrest report to conceal racial
profiling by the U.S. Forest Service; (3) on April 9, 2012, Supervisory BPA
H.V. 4 told the appellant’s patrol group that he expected them to “go out there and
catch ‘bodies’”; and (4) on April 15, 2012, a coworker informed the appellant
that Murrieta’s lead management official, Patrol Agent in Charge W.D., told his
counterparts at other agencies that Border Patrol could “pick up any and all of
their aliens.” Id. at 1-2.
¶3 On May 9, 2012, the appellant filed an addendum to his DOJ complaint
alleging that, on May 7, 2012, he witnessed Acting Supervisory BPA R.D. direct
a subordinate to falsify an arrest report. IAF, Tab 14, Ex. AA. On May 20,
2012, the appellant filed another complaint with DOJ alleging that he had been
harassed by one of his coworkers because of his opposition to racial profiling
and that management officials had refused to take any corrective action against
the coworker. Id., Ex. CC.
¶4 On June 6, 2012, H.V. assigned the appellant to ride with canine handler
J.M., whose vehicle was not equipped with a rack for the appellant’s assigned
rifle. IAF, Tab 7 at 103 (written statement of H.V.). The appellant objected to
the assignment and retrieved his rifle from the armory, as well as the keys to his
assigned sedan; however, H.V. told the appellant that he would not be allowed to
take his rifle out to the field that day and instructed him to return the rifle and
keys. Id. at 104. The appellant refused to do so and a standoff ensued, with the
appellant telling H.V., “[I]f you want [the rifle] that bad, if you don’t want me to
take it out to the field, you can take it and put it back yourself.” IAF, Tab 36,
Hearing Transcript, Day 2 (HT2) at 103, lines 1-2 (testimony of the appellant).
H.V. stated that he was “not prepared to do that” and reassigned the appellant to
“inside duties,” at which point the appellant returned the rifle. HT2 at 103,
lines 3, 5-7; IAF, Tab 7 at 105 (written statement of H.V.).
4
H.V. was the appellant’s immediate supervisor. See HT1 at 140, lines 8-10;
HT1 at 142, lines 21-24 (testimony of H.V.).
4
¶5 H.V. reported the incident to V.J., who spoke with the appellant the
following day and discussed the Employee Assistance Program with him. IAF,
Tab 7 at 90, 94 (written statement of V.J.) According to V.J., the appellant
replied, “I’m fine and I don’t mean to imply any violence in telling you this but I
also have personal guns at home, just so you’ll know.” Id. at 94. V.J. then asked
the appellant if he was trying to tell him “something more” than that he owned
guns, and the appellant denied any other meaning. Id. at 94-95.
¶6 H.V., V.J., the appellant, and three other employees who witnessed the
June 6, 2012 standoff incident submitted written accounts of the incident to
W.D. 5 Id. at 90-108. On June 7, 2012, W.D. forwarded the statements to Chief
Patrol Agent P.B., along with a memorandum in which W.D. recommended that a
fitness-for-duty examination (FFDE) be conducted on the appellant to determine
his mental stability to perform the duties of a law enforcement officer. Id. at 89.
On June 13, 2012, the agency revoked the appellant’s authority to carry a
Government-issued firearm, IAF, Tab 14, Ex. JJ, and the appellant filed a
complaint with DOJ regarding that action, see id., Ex. KK-005.
¶7 On June 15, 2012, the appellant filed a complaint with the Disclosure Unit
of the Office of Special Counsel (OSC) alleging that H.V.’s June 6, 2012 order
denying him access to his rifle and the agency’s subsequent revocation of his
authority to carry a Government-issued firearm constituted retaliation for his
whistleblowing activity. IAF, Tab 14, Ex. KK. The appellant raised the
following disclosures in his OSC complaint: his DOJ complaints of April 16,
May 20, and June 13, 2012; his May 9, 2012 addendum to his April 16, 2012
complaint; and his report to his command staff in September 2010 that H.V. had
ordered him to deny a prisoner medical treatment. Id. at 005-006; see IAF, Tab
14, Exs. G, I (memoranda from the appellant regarding the 2010 incident). In
5
Those employees were Supervisory BPA J.H., Assistant Patrol Agent in Charge W.M.,
and R.D. See IAF, Tab 7 at 96 (statement of J.H.), 101-02 (statement of W.M.), and
107-08 (statement of R.D.).
5
July 2012, OSC’s Disclosure Unit forwarded the appellant’s complaint to its
Complaints Examining Unit. IAF, Tab 14, Ex. MM.
¶8 After reviewing the written accounts of the June 6, 2012 incident, Division
Chief for Operational Support K.R. issued an order on August 13, 2012,
instructing the appellant to undergo a general FFDE. IAF, Tab 7 at 81-83; HT1
at 115, lines 8-15 (testimony of K.R.). Following that examination, K.R. issued
an order on September 20, 2013, directing the appellant to undergo a psychiatric
FFDE. IAF, Tab 7 at 79-80. The appellant then amended his OSC complaint to
allege that the agency ordered him to undergo the FFDEs in reprisal for his
whistleblowing activity. 6 See IAF, Tab 14, Ex. VV-001. Later, A.M. conducted
a psychiatric FFDE of the appellant and concluded that he could not safely and
efficiently perform all of the duties of his position. IAF, Tab 7 at 69.
Consulting psychiatrist P.P. reviewed the results of the appellant’s psychiatric
FFDE and concurred with them. Id. at 74.
¶9 Based on the medical reports of A.M. and P.P., on February 22, 2013, the
agency proposed removing the appellant for inability to perform the essential
duties of his position due to a medical condition. Id. at 41-43. While the
proposed removal was pending, OSC terminated its inquiry into the appellant’s
allegations and issued a closure letter dated March 15, 2013, and notice of Board
appeal rights. IAF, Tab 14, Ex. XX. Following a response to the proposed
removal by the appellant, IAF, Tab 7 at 30-40, the deciding official sustained the
charge, and the appellant was removed effective April 23, 2013, id. at 25-29.
6
Although the record does not include any submissions to OSC from the appellant
referencing the FFDEs, OSC’s February 22, 2013 letter advising the appellant of its
preliminary decision to close its inquiry into his whistleblower complaint states that he
alleged that the agency ordered him to undergo the FFDEs in reprisal for his
whistleblowing activity. See IAF, Tab 14, Ex. VV-001. Thus, the appellant evidently
amended his OSC complaint after the agency issued the FFDE orders to add a claim of
reprisal based on those orders.
6
¶10 On April 30, 2013, the appellant filed a Board appeal challenging his
removal and the agency’s order directing him to undergo a psychiatric FFDE.
IAF, Tab 1 at 3; see IAF, Tab 20. He requested a hearing. IAF, Tab 1 at 2. On
his Board appeal form, he raised claims of whistleblower reprisal and retaliation
for protected EEO activity (assisting a coworker in his EEO complaint against
the agency). 7 Id. at 4-6. The regional office docketed the appellant’s claims as
separate IRA and removal appeals. IAF, Tab 2; Mendiola v. Department of
Homeland Security, MSPB Docket No. SF-1221-13-0440-W-1, Initial Appeal
File (W-1 IAF), Tab 3. The administrative judge joined the appeals for hearing
purposes. IAF, Tab 8.
¶11 Following a hearing, the administrative judge granted the appellant’s
request for corrective action in his IRA appeal, reversed the appellant’s removal,
and ordered the appellant reinstated to duty. IAF, Tab 31, Initial Decision (ID).
Regarding the IRA appeal, the administrative judge found that the agency
ordered the appellant to undergo the FFDE in retaliation for his whistleblowing
activities and protected EEO activity. ID at 2-13, 25 n.21. Regarding the
removal appeal, the administrative judge found that the agency failed to prove
the charge, ID at 13-20, and that the appellant proved his affirmative defenses,
ID at 20-25. 8
7
The appellant also checked the box on the appeal form indicating that he was raising
an affirmative defense of race discrimination. IAF, Tab 1 at 7. During the hearing, the
administrative judge stated, “[T]he affirmative defense of retaliation based on national
origin, which I guess was attached to the original appeal, has been withdrawn.” HT1 at
4, lines 22-24. The record does not indicate that the appellant raised a claim of national
origin discrimination, however. Thus, it appears that the administrative judge intended
to say that the appellant had withdrawn his affirmative defense of race discrimination.
8
At the beginning of the hearing, the administrative judge stated that, prior to going on
the record, “the appellant clarified that the only affirmative defense was retaliation for
protected prior EEO activity.” HT1 at 4, lines 17-19. Nonetheless, the administrative
judge analyzed the affirmative defense of retaliation for “protected whistleblowing
activity” in the initial decision. See ID at 25. On remand, the administrative judge
should clarify whether the appellant is raising an affirmative defense of whistleblower
reprisal.
7
¶12 The agency has filed a petition for review of the initial decision. Mendiola
v. Department of Homeland Security, MSPB Docket No. SF-1221-13-0440-W-1,
Petition for Review (PFR) File, Tab 1. The appellant has filed a response in
opposition to the petition for review, and the agency has filed a reply to the
appellant’s response. PFR File, Tabs 10, 12.
ANALYSIS
The Appellant’s IRA Appeal
The applicable legal standards
¶13 The Board has jurisdiction over an IRA appeal if the appellant has
exhausted his administrative remedies before OSC and makes nonfrivolous
allegations that: (1) he engaged in whistleblowing activity by making a
protected disclosure; and (2) the disclosure was a contributing factor in the
agency’s decision to take or fail to take a personnel action. 9 Yunus v.
Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). The
appellant bears the burden of showing that he exhausted his remedies before
OSC, and the Board’s jurisdiction is limited to the issues he raised before OSC.
Coufal v. Department of Justice, 98 M.S.P.R. 31, ¶ 14 (2004); see Sazinski v.
Department of Housing & Urban Development, 73 M.S.P.R. 682, 685 (1997)
(holding that the scope of an IRA appeal is limited to those disclosures raised
before OSC).
¶14 After establishing the Board’s jurisdiction in an IRA appeal, the appellant
then must establish a prima facie case of whistleblower retaliation by proving by
preponderant evidence that he made a protected disclosure that was a
contributing factor in a personnel action taken against him. 5 U.S.C.
§ 1221(e)(1); Mattil v. Department of State, 118 M.S.P.R. 662, ¶ 11 (2012). A
9
It is undisputed that the agency’s order directing the appellant to undergo a psychiatric
FFDE constitutes a personnel action pursuant to 5 U.S.C. § 2302(a)(2)(A)(x). PFR File,
Tab 1 at 25.
8
protected disclosure is a disclosure that an appellant reasonably believes
evidences a violation of any law, rule, or regulation, gross mismanagement, a
gross waste of funds, an abuse of authority, or a substantial and specific danger
to public health or safety. 5 U.S.C. § 2302(b)(8)(A); Chambers v. Department of
the Interior, 515 F.3d 1362, 1367 (Fed. Cir. 2008). A reasonable belief exists if
a disinterested observer with knowledge of the essential facts known to and
readily ascertainable by the appellant could reasonably conclude that the actions
of the Government evidence one of the categories of wrongdoing listed in section
2302(b)(8)(A). Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999).
¶15 A protected disclosure is a contributing factor if it affects an agency’s
decision to take a personnel action in any way. Dorney v. Department of the
Army, 117 M.S.P.R. 480, ¶ 14 (2012). The most common way of proving the
contributing factor element is the “knowledge/timing test.” Chavez v.
Department of Veterans Affairs, 120 M.S.P.R. 285, ¶ 27 (2013). Under that test,
an appellant can prove that his disclosure was a contributing factor in a
personnel action through evidence that the official taking the personnel action
knew of the whistleblowing disclosure and took the personnel action within a
period of time such that a reasonable person could conclude that the disclosure
was a contributing factor in the personnel action. Id. Once an appellant has
satisfied the knowledge/timing test, he has demonstrated that a protected
disclosure was a contributing factor in a personnel action. Gonzalez v.
Department of Transportation, 109 M.S.P.R. 250, ¶ 20 (2008).
¶16 If the appellant makes out a prima facie case of whistleblower retaliation,
the Board shall order such corrective action as it considers appropriate unless the
agency shows by clear and convincing evidence that it would have taken the
same personnel action in the absence of the protected disclosure. 5 U.S.C.
§ 1221(e)(1)-(2); Chambers v. Department of the Interior, 116 M.S.P.R. 17, ¶ 12
(2011). 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
9
to be established; it is a higher standard than the “preponderance of the
evidence” standard. Sutton v. Department of Justice, 94 M.S.P.R. 4, ¶ 18 (2003),
aff’d, 97 F. App’x 322 (Fed. Cir. 2004); 5 C.F.R. § 1209.4(e). Evidence only
clearly and convincingly supports a conclusion when it does so in the aggregate
considering all the pertinent evidence that fairly detracts from that conclusion.
Whitmore v. Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012).
It is unclear what disclosures are at issue in this appeal.
¶17 During the proceedings below, the administrative judge did not direct the
appellant to identify the disclosures at issue in his IRA appeal, and it is unclear
what those disclosures are. In response to a question on the appeal form asking
him to identify each disclosure, the appellant listed only his April 16, 2012 DOJ
complaint. IAF, Tab 1 at 11. In his prehearing submission, however, the
appellant indicated that his whistleblowing activity also included his April 1,
2012 email to C.C., the May 9, 2012 addendum to his April 16, 2012 DOJ
complaint, his DOJ complaint of May 20, 2012, his June 5, 2012 email to H.V.
and V.J. forwarding an email that contained a newspaper article about racial
profiling, and his OSC complaint. IAF, Tab 14 at 6-7, Exs. W, AA, CC, FF, KK.
Further, in response to a question on the appeal form asking for a chronology of
the events concerning the action that the appellant claimed was based on
whistleblowing, he also referenced his August 7, 2012 memorandum to P.B.
complaining of ongoing harassment, and he specifically noted that he submitted
the memorandum 1 week before K.R.’s order directing him to take a general
FFDE. See IAF, Tab 1 at 12; Tab 14, Ex. QQ.
¶18 Not only are we unable to determine exactly what disclosures are at issue in
this IRA appeal based on the appellant’s submissions, but the administrative
judge’s findings regarding the appellant’s protected disclosures also are
inconsistent and unclear. In the initial decision, the administrative judge found
10
that the appellant’s complaints to C.C., 10 DOJ, and OSC in early 2012 disclosing
what he believed to be racial profiling at Murrieta constituted protected activity
under 5 U.S.C. § 2302(b)(8). ID at 11. The administrative judge then stated that
these complaints occurred “from April 1 to June 5, 2012,” and that “the last
protected disclosure” took place 1 day before H.V.’s order prohibiting the
appellant from taking his assigned rifle with him on an assignment. ID at 11. As
noted above, however, the appellant filed his OSC complaint 9 days after H.V.’s
June 6, 2012 order directing him not to take his rifle with him on an assignment.
See IAF, Tab 14, Ex. KK. Moreover, as previously mentioned, the order was one
of the alleged instances of whistleblower reprisal that the appellant cited in his
OSC complaint and, thus, predated the OSC complaint. See id. at 005.
Therefore, we find that the administrative judge’s statement indicating that the
last protected disclosure occurred on June 5, 2012, is inconsistent with his
finding that the appellant’s OSC complaint was one of the protected disclosures
at issue in his IRA appeal.
¶19 In light of the administrative judge’s statement regarding the date of the last
protected disclosure and the timing of the appellant’s OSC complaint, it appears
that the administrative judge was not referring to that complaint as “the last
protected disclosure.” Based on our review of the record, it seems that the
administrative judge was instead referring to the appellant’s June 5, 2012 email
to H.V. and V.J. regarding the newspaper article about racial profiling. See IAF,
Tab 14, Ex. FF. Thus, the administrative judge appears to have determined that
the appellant’s June 5, 2012 email was one of the protected disclosures at issue
in this appeal.
¶20 As previously stated, however, the scope of an IRA appeal is limited to
those disclosures raised before OSC. Sazinski, 73 M.S.P.R at 685. The record
indicates that the appellant did not identify either his June 5, 2012 email or
10
The administrative judge apparently was referring to the appellant’s April 1, 2012
email to C.C. IAF, Tab 14, Ex. W.
11
another disclosure that the administrative judge found protected—his April 1,
2012 email to C.C.—in his OSC submissions. In that regard, we note that the
appellant did not raise either of those emails as a disclosure in the complaint he
filed with OSC’s Disclosure Unit, 11 IAF, Tab 14, Ex. KK, nor is there any
indication in the record that he subsequently raised those emails as disclosures
before OSC’s Complaints Examining Unit. 12 Thus, it appears that the appellant
did not exhaust his administrative remedy before OSC regarding either of those
emails.
¶21 Due to the lack of clarity regarding the appellant’s disclosures and the other
adjudicatory errors in the initial decision, which are discussed further below, it is
necessary to remand the IRA appeal for further adjudication and issuance of a
new initial decision. On remand, the administrative judge should issue an order
directing the appellant to identify each disclosure at issue in this appeal and
show that he exhausted his administrative remedy before OSC regarding each
alleged protected disclosure. Once the appellant makes such a showing, the
administrative judge should determine which disclosures are protected and
clearly identify those disclosures in the new initial decision.
11
The appellant did include his April 1, 2012 email to C.C. in the supporting
documentation he faxed to OSC’s Disclosure Unit on June 18, 2012, in conjunction
with his OSC complaint. IAF, Tab 14, Ex. KK-009. Even assuming, however, that
submitting the email to OSC’s Disclosure Unit was tantamount to raising the email as a
disclosure, making disclosures to OSC’s Disclosure Unit does not satisfy the exhaustion
requirement under 5 U.S.C. § 1214(a)(3). See Mason v. Department of Homeland
Security, 116 M.S.P.R. 135, ¶ 16 (2011). Although OSC’s Disclosure Unit forwarded
the appellant’s complaint to the Complaints Examining Unit in July 2012, the record
does not indicate that it also provided the Complaints Examining Unit any of the
supporting documentation that the appellant faxed to the Disclosure Unit on June 18,
2012. See IAF, Tab 14, Ex. MM.
12
OSC’s February 22, 2012 letter advising the appellant of its preliminary decision to
close its inquiry into his complaint identifies various disclosures that the appellant
apparently raised with OSC after filing his OSC complaint in June 2012; however,
neither the appellant’s April 1, 2012 email to C.C. nor his June 5, 2012 email to H.V.
and V.J. are among those disclosures. See IAF, Tab 14, Ex. VV.
12
The administrative judge’s contributing factor analysis is incomplete.
¶22 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. Spithaler v. Office of Personnel
Management, 1 M.S.P.R. 587, 589 (1980). Given his decision to grant the
appellant’s request for corrective action in his IRA appeal, the administrative
judge evidently concluded that the appellant established the contributing factor
element of his whistleblower reprisal claim. He did not explicitly make such a
finding in the initial decision, however. Moreover, although the administrative
judge seems to have determined that the appellant proved contributing factor
pursuant to the knowledge/timing test, the analysis of the contributing factor
element of the appellant’s claim in the initial decision directly addresses only the
timing prong of that test. See ID at 11 (finding that the timing of the appellant’s
complaints to C.C., DOJ, and OSC clearly satisfied the knowledge/timing test for
demonstrating that those disclosures were a contributing factor in the FFDE
order inasmuch as the order was issued within a period of time such that a
reasonable person could conclude that the disclosures were a contributing
factor).
¶23 Consistent with Spithaler, after the administrative judge identifies the
appellant’s protected disclosures on remand, he should make explained findings
regarding the contributing factor element of the appellant’s whistleblower claim.
If he determines that the appellant established contributing factor pursuant to the
knowledge/timing test, then he should make explained findings regarding both
prongs of the test and directly address the agency’s argument that the knowledge
prong of the test has not been satisfied because, according to the agency, none of
the agency officials involved in the decision to issue the FFDE order knew of the
appellant’s protected disclosures. PFR File, Tab 1 at 26, 32.
13
The administrative judge applied an incorrect standard in assessing the
strength of the agency’s evidence in support of its action.
¶24 Once an appellant establishes a prima face case of whistleblowing, the
burden shifts to the agency to prove by clear and convincing evidence that it
would have taken the same personnel action in the absence of the appellant’s
whistleblowing. See Jenkins v. Environmental Protection Agency, 118 M.S.P.R.
161, ¶ 16 (2012). In determining whether an agency has met this burden, the
Board will consider the following factors: (1) the strength of the agency’s
evidence in support of its action; (2) the existence and strength of any motive to
retaliate on the part of the agency officials who were involved in the decision;
and (3) any evidence that the agency takes similar actions against employees
who are not whistleblowers but who are otherwise similarly situated. Carr v.
Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). The
Board does not view these factors as discrete elements, each of which the agency
must prove by clear and convincing evidence. Rather, the Board will weigh the
factors together to determine whether the evidence is clear and convincing as a
whole. Lu v. Department of Homeland Security, 122 M.S.P.R. 335, ¶ 7 (2015).
¶25 The administrative judge did not explicitly apply the Carr factors in
determining whether the agency met the clear and convincing evidence burden,
nor did he mention the Carr factors during the proceedings below. See, e.g.,
IAF, Tab 20 (order advising parties of the applicable burdens of proof).
Nonetheless, the initial decision indicates that the administrative judge did
consider the first two Carr factors inasmuch as he found that K.R.’s decision to
issue the FFDE order was based on “scant” evidence and was motivated by
retaliation for the appellant’s whistleblowing activity. ID at 12-13.
¶26 In assessing the strength of the agency’s evidence in support of its action,
the administrative judge stated that an FFDE is appropriate generally when an
agency “has a reasonable belief, based on objective evidence, that: (1) an
employee’s ability to perform essential job functions will be impaired by a
14
medical condition; or (2) an employee will pose a direct threat due to a medical
condition.” ID at 11 (citing Harris v. Postmaster General, EEOC Appeal No.
0120050086, 2007 WL 788176 (Mar. 6, 2007)).
¶27 The administrative judge found, in essence, that the agency failed to meet
either prong of the above standard. Regarding the first prong, the administrative
judge found that there was no evidence that the appellant’s ability to perform his
duties was impaired by a medical condition. ID at 12. As for the second prong,
the administrative judge stated that a belief that an employee poses a direct
threat due to a medical condition may not be based on evidence indicating that
the employee has been rude, hostile, or disrespectful to a supervisor or that he
“exhibited irrational behavior” when he “rudely interrupted, confronted and
refused to obey” his supervisor. ID at 12 (citing Cerge v. Secretary of Homeland
Security, EEOC Appeal No. 0120060363, 2008 WL 559447 (Feb. 20, 2008);
Whiting v. U.S. Postal Service, EEOC Appeal No. 01A14923, 2003 WL
21145527 (May 8, 2003)).
¶28 The administrative judge erred in applying the above standard in assessing
the strength of the agency’s evidence. The Office of Personnel Management’s
regulations set forth at 5 C.F.R. part 339, subpart C, govern an agency’s
authority to require a medical examination. Moe v. Department of the Navy,
119 M.S.P.R. 555, ¶ 10 (2013). When an employee occupies a position that is
subject to medical standards or physical requirements, 5 C.F.R. § 339.301(b)(3)
authorizes an agency to order a medical examination whenever there is a direct
question about the employee’s continued capacity to meet the physical or
medical requirements of the position. Under 5 C.F.R. § 339.301(e)(1), an agency
may order a psychiatric examination (including a psychological assessment)
when the result of a current general examination that the agency has the
authority to order under section 339.301 indicates no physical explanation for
behavior or actions that may affect the safe and efficient performance of the
individual or others.
15
¶29 As a BPA, the appellant was subject to physical requirements and medical
standards, including psychological standards. See IAF, Tab 11 at 26-27.
Therefore, we find that the administrative judge should have applied the
standards set forth at 5 C.F.R. § 339.301 in evaluating the strength of the
agency’s evidence in support of its FFDE order.
The administrative judge seemed to find that agency officials had a motive
to retaliate against the appellant because they were mentioned in the
appellant’s disclosures without first determining that those officials knew
about the disclosures.
¶30 When applying the second Carr factor, the Board will consider any motive
to retaliate on the part of the agency official who ordered the action, as well as
any motive to retaliate on the part of other officials who influenced the decision.
See Carr, 185 F.3d at 1326. In the initial decision, the administrative judge
noted that H.V., V.J., R.D., and W.D. were mentioned in the appellant’s
disclosures, and he found that their statements summarizing the June 6, 2012
incident, as filtered through W.D., led directly to the ordering of the FFDEs. ID
at 11. The administrative judge further found that H.V.’s June 6 th order was
motivated by retaliation for the appellant’s protected whistleblowing activity and
that K.R.’s decision to order the FFDEs, which, the administrative judge found,
relied exclusively on W.D.’s “excessive extrapolation and speculation,” similarly
resulted from such motivation. ID at 12 n.7 (citing Staub v. Proctor Hospital,
131 S. Ct. 1186, 1194 (2011)).
¶31 Although his analysis of the second Carr factor is not entirely clear, the
administrative judge seemed to find that the agency officials who submitted the
statements that K.R. considered in ordering the FFDE had a motive to retaliate
against the appellant because they were mentioned in his disclosures. The
administrative judge then apparently imputed their retaliatory motive to K.R. so
as to conclude that the FFDE was motivated by the appellant’s whistleblowing
activity. ID at 11-12 & n.7. As noted above, however, the administrative judge
did not address the issue of whether the agency officials who provided the
16
statements regarding the June 6, 2012 incident knew about the pertinent
disclosures. The officials clearly would not have had any motive to retaliate
against the appellant for those disclosures if they were unware of them. Thus,
we find that the administrative judge erred by finding a retaliatory motive on the
part of agency officials because they were mentioned in the appellant’s
disclosures without first determining that those officials were aware of the
disclosures.
The administrative judge did not address the third Carr factor.
¶32 In finding that the agency did not meet its clear and convincing evidence
burden, the administrative judge did not consider the third Carr factor—the
treatment of similarly situated nonwhistleblowers. See ID at 11-13. During the
proceedings below, the appellant stated that the agency treated another BPA who
was not a whistleblower differently by granting that employee’s request to take
his own vehicle on patrol when the employee objected to riding with J.M. IAF,
Tab 14 at 16-17. The administrative judge should have addressed this argument
in analyzing whether the agency satisfied its clear and convincing evidence
burden.
¶33 On remand, if the administrative judge finds that the appellant established a
prima facie case of whistleblower reprisal, he then must determine whether the
agency met its burden to show by clear and convincing evidence that it would
have ordered the psychiatric FFDE absent the appellant’s protected disclosures.
In analyzing that issue, the administrative judge should apply each of the Carr
factors, reconsider the record as a whole, and make thoroughly reasoned findings
that address both the evidence supporting his conclusions and any contradictory
evidence.
The Board lacks the authority to review the appellant’s claim of retaliation
for his prior protected EEO activity.
¶34 As noted above, the administrative judge found that the agency ordered the
appellant to submit to the FFDE in retaliation for his participation in EEO
17
complaints filed by another agency employee. ID at 21. Such retaliation is a
prohibited personnel practice under 5 U.S.C. § 2302(b)(9)(B). When the agency
issued the order for the psychiatric FFDE, the Board lacked jurisdiction to
consider an appellant’s claim that a personnel action was taken as a result of a
prohibited personnel practice described at 5 U.S.C. § 2302(b)(9)(B). Although
the Whistleblower Protection Enhancement Act of 2012 (WPEA) expanded the
Board’s jurisdiction in IRA appeals to include claims of retaliation based on
activity protected by section 2302(b)(9)(B), the WPEA did not become effective
until after the agency issued the FFDE order, and the Board has held that this
change in the law has no retroactive effect. See Hooker v. Department of
Veterans Affairs, 120 M.S.P.R. 629, ¶¶ 9-15 (2014). Consequently, we find that
the Board does not have the authority to review the appellant’s claim that the
agency issued the FFDE order in retaliation for his prior EEO activity.
Therefore, the administrative judge should not have addressed the merits of that
claim in the initial decision in the IRA appeal.
The Appellant’s Removal Appeal
The administrative judge applied an incorrect standard in analyzing
whether the agency proved its charge.
¶35 In considering whether the agency proved its charge, the administrative
judge stated that, in order to remove an employee for inability to perform the
essential duties of his position due to a medical condition, the agency must
establish a connection between that condition and “observed deficiencies in
performance or conduct, or a high probability of hazard when the condition may
result in injury to the employee or others because of the kind of work the
employee does.” ID at 13 (quoting Spencer v. Department of the Navy,
73 M.S.P.R. 15, 21 (1997)).
¶36 Applying this standard, the administrative judge found that the agency
presented no evidence that the appellant was deficient in the performance of his
duties at any time prior to his termination and noted that the agency did not, in
18
its proposal or decision letter, make any allegation or conclusion that the
appellant presented a high probability of hazard because he had a disabling
condition that may result in injury to himself or others because of the kind of
work he does. ID at 16. The administrative judge acknowledged that A.M.’s
psychiatric report did make such a conclusion, inasmuch as A.M. stated that the
appellant represented a potential threat of harm to himself or others. Yet, the
administrative judge found that this conclusion “seem[ed] to be entirely
unsupported by the rest of the report . . . .” ID at 16, 18. The administrative
judge therefore found that the agency failed to prove by preponderant evidence
its charge of inability to perform the essential duties of a position due to a
medical condition. ID at 20.
¶37 In Slater v. Department of Homeland Security, 108 M.S.P.R. 419, ¶ 11
(2008), the Board overruled Spencer and other Board cases to the extent that they
applied the “high probability of hazard” standard. The Board held that this
standard is not appropriate in evaluating an employee’s fitness to perform the
duties of a position, for positions with medical standards or physical
requirements or positions subject to medical evaluation programs. Id., ¶¶ 7, 11.
The Board held, moreover, that to justify disqualification from such a position
based upon a medical condition alone, 13 the agency must show that the condition
itself is disqualifying, its recurrence cannot be ruled out, and the duties of the
position are such that a recurrence would pose a reasonable probability of
substantial harm. Id., ¶ 11; see 5 C.F.R. § 339.206.
¶38 As previously noted, the appellant’s position had medical standards and
physical requirements. See IAF, Tab 11 at 26-27. Consequently, we find that,
pursuant to Slater, the administrative judge should have applied the standard set
forth in 5 C.F.R. § 339.206 in determining whether the agency proved its charge.
13
The Board in Slater explained that a removal as medically disqualified is equivalent
to a removal for inability to perform for medical reasons. Slater, 108 M.S.P.R. 419,
¶ 7.
19
¶39 Because the administrative judge applied an incorrect legal standard in
analyzing whether the agency proved its charge, we find it appropriate to remand
the appellant’s removal appeal for further adjudication. On remand, the
administrative should apply the standard set forth in 5 C.F.R. § 339.206 in
determining whether the agency proved its charge and issue a new initial
decision, giving appropriate consideration to any additional relevant evidence
that is developed on remand. See Viana v. Department of the Treasury,
114 M.S.P.R. 659, ¶ 8 (2010). As previously mentioned, he also should clarify
whether the appellant is raising an affirmative defense of whistleblower reprisal
in the removal appeal. To the extent appropriate, the initial decision may
incorporate the administrative judge’s previous findings concerning the
appellant’s affirmative defenses. See id.
ORDER
¶40 For the reasons discussed above, we REMAND this case to the regional office
for further adjudication and issuance of a new initial decision in accordance with
this Remand Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.