Opinion

Elmer Blackstone v. Department of Energy

Court: Merit Systems Protection Board
Filed: Apr 12, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.8%

finding motive to retaliate because the appellant’s criticisms “cast [the agency], and, by implication all of the responsible [agency] officials, in a highly critical light by calling into question the propriety and honesty of their official conduct”

How later courts described this case

finding motive to retaliate because the appellant’s criticisms “cast [the agency], and, by implication all of the responsible [agency] officials, in a highly critical light by calling into question the propriety and honesty of their official conduct”
finding two supervisors within the same branch of the same department to be “similarly situated from an employment position and responsibility perspective”

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ELMER K. BLACKSTONE, DOCKET NUMBER

Appellant, DA-1221-18-0079-W-1

DEPARTMENT OF ENERGY, DATE: April 12, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Andrew Kim , Esquire, Atlanta, Georgia, for the appellant.

Adam DeDent , Esquire, Reesha Trznadel , Esquire and Sean Johnson ,

Esquire, Golden, Colorado, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

denied his request for corrective action in this individual right of action (IRA)

appeal. Generally, we grant petitions such as this one only in the following

circumstances: 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 of the law to the facts of the case; the administrative

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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. 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, 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. Except as expressly MODIFIED as

to the second Carr factor to find a slight retaliatory motive in connection with the

appellant’s suspension and to supplement the administrative judge’s analysis

regarding the third Carr factor, we AFFIRM the initial decision.

BACKGROUND

The appellant is employed as a GS-15 Program Manager at the agency’s

Southwestern Power Administration (SWPA), Office of Corporate Compliance.

Initial Appeal File (IAF), Tab 13 at 43. On July 19, 2017, his supervisor

proposed to suspend him for 14 days based on charges of inappropriate remarks

and inappropriate conduct toward a supervisor. Id. at 22-24. In support of the

inappropriate remarks charge, the proposal notice alleged that, while at the airport

on business travel on June 4, 2017, the appellant stated to a female coworker that

he had access to her home address because he was in human resources and that he

could find her phone number by going “in any men’s room around here and it will

be written on the wall.” Id. at 22. The proposal notice explained that the

appellant made this statement in the presence of another coworker and an airport

employee and that he was wearing an SWPA logo shirt at the time. Id. In

support of the inappropriate conduct toward a supervisor charge, the proposal

notice set forth the following two specifications: (1) on June 6, 2017, when the

appellant met with his supervisor to discuss his June 4, 2017 comments, he stated,

among other things, “I am either going to make your life hard, or make your life

easy”; and (2) during a phone call on July 12, 2017, the appellant talked over his

supervisor and stated, among other things, “you’re about to get schooled in

employee relations and labor relations” and “you better hope you have your house

in order because if you don’t, it’s not gonna be good for you.” 2 Id. at 22-23.

On July 21, 2017, the appellant filed a complaint with the Office of Special

Counsel (OSC) alleging that his supervisor proposed to suspend him in retaliation

for informing him that the SWPA Administrator’s request to have an attorney

advisor reassigned after she conveyed her intent to file an Office Inspector

General (OIG) report would constitute reprisal for whistleblowing. IAF, Tab 6

at 17-27. The appellant also alleged that the proposed suspension was taken in

retaliation for informing an OIG investigator about the SWPA Administrator’s

attempted reprisal against the attorney advisor. Id. at 21. In September 2017,

OSC notified the appellant that it was closing its investigation into his complaint

without action. IAF, Tab 1 at 92-98.

The appellant timely filed the instant IRA appeal. IAF, Tab 1. Although

he initially requested a hearing, he subsequently withdrew that request. IAF,

Tabs 33, 35. In an initial decision based on the written record, the administrative

judge found jurisdiction over the appeal but denied the appellant’s request for

corrective action, finding that the agency established by clear and convincing

evidence that it would have proposed his 14-day suspension even in the absence

of his protected whistleblowing disclosure. IAF, Tab 42, Initial Decision (ID).

The appellant has filed a petition for review of the initial decision, and the

agency has responded in opposition. Petition for Review (PFR) File, Tabs 1, 3.

DISCUSSION OF ARGUMENTS ON REVIEW

When, as here, an appellant establishes jurisdiction over his IRA appeal, he

must then establish a prima facie case of whistleblower retaliation by proving by

On October 13, 2017, the deciding official sustained the charges but mitigated the

proposed suspension period to 5 days. IAF, Tab 13 at 19-20.

preponderant evidence that he made a protected disclosure that was a contributing

factor in a personnel action taken against him. 3 5 U.S.C. § 1221(e)(1); Lu v.

Department of Homeland Security, 122 M.S.P.R. 335, ¶ 7 (2015). If the appellant

makes out a prima facie case, the agency is given an opportunity to prove, by

clear and convincing evidence, that it would have taken the same personnel action

in the absence of the protected disclosure or activity. 4 5 U.S.C. § 1221(e)(1)-(2);

Lu, 122 M.S.P.R. 335, ¶ 7. 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. Lu, 122 M.S.P.R. 335, ¶ 7.

Rather, the Board will weigh the factors together to determine whether the

evidence is clear and convincing as a whole. Id.

In the initial decision, the administrative judge found that the appellant

made a protected disclosure that he reasonably believed evidenced a violation of

the Whistleblower Protection Enhancement Act (WPEA) when, on June 1 and 2,

2017, he informed his supervisor that the SWPA Administrator’s plan to reassign

the attorney advisor after she stated that she intended to file an OIG report could

constitute whistleblower reprisal. ID at 11-13. She also found that the appellant

established that his disclosure was a contributing factor in the proposed

Preponderant evidence is that degree of relevant evidence that a reasonable person,

considering the record as a whole, would accept as sufficient to find that a contested

fact is more likely true than untrue. 5 C.F.R. § 1201.4(q).

Clear and convincing evidence is that measure or degree of proof that produces in the

mind of the trier of fact a firm belief as to the allegations sought to be established.

5 C.F.R. § 1209.4(e).

suspension by showing that his supervisor knew of the disclosure and that he

proposed to suspend him within a short period of time after he made the

disclosure. ID at 16. Thus, she concluded that the appellant established a prima

facie case of whistleblower reprisal with respect to his disclosure of a potential

WPEA violation to his supervisor. 5 ID at 10-16. We agree with these findings,

which the parties have not challenged on review.

Having concluded that the appellant established a prima facie case of

whistleblower reprisal, the administrative judge proceeded to consider whether

the agency demonstrated by clear and convincing evidence that it would have

taken the same personnel action against the appellant in the absence of his

protected disclosure. ID at 17-25. Regarding the first Carr factor, the

administrative judge found that the agency’s evidence in support of the proposed

14-day suspension was strong because, even crediting the appellant’s version of

the events at issue, his behavior was inappropriate. ID at 19-23, 25. She further

found it significant that the appellant did not dispute, as alleged in the proposal

notice, that his supervisor had counseled him on several occasions in the past

about the manner in which he treated and spoke to employees. ID at 22. The

appellant has not challenged these findings on review, PFR File, Tab 1, and we

discern no basis to disturb them. Thus, we agree that the agency’s evidence in

support of the proposed suspension was strong.

Regarding the second Carr factor, the administrative judge found that the

record was devoid of any evidence suggesting retaliatory motive on the part of

the appellant’s supervisor in proposing the 14-day suspension. 6 ID at 23-24. To

The administrative judge found that the appellant’s May 2017 email to his supervisor

regarding the “Separation of [the Equal Employment Opportunity] Complaint Program

from the Agency’s Defensive Function” did not constitute a protected disclosure and

that, although he engaged in protected activity when he made the OIG report, he failed

to establish contributing factor with respect to that activity. ID at 10-13, 16. The

appellant does not challenge these findings on review, PFR File, Tab 1, and we discern

no basis to disturb them.

The administrative judge found that there was no evidence that the SWPA

Administrator had any involvement in the appellant’s proposed suspension. ID at 24

the contrary, she found that the record established that he agreed that reassigning

the attorney advisor would constitute whistleblower reprisal and that he had made

the same disclosure to the SWPA Administrator. Id. In so finding, she relied on

a text message from the appellant’s supervisor to the appellant regarding his

conversation with the SWPA Administrator, stating, in part, “Hopefully he will

choose wisely.” ID at 23 (quoting IAF, Tab 1 at 67). In addition, she considered

a memorandum drafted by the appellant’s supervisor reflecting that he advised the

SWPA Administrator on June 2, 2017, that he should not reassign the attorney

advisor because reassignment could qualify as an adverse action and retaliation

for her disclosure. ID at 23-24 (citing IAF, Tab 26 at 36). Thus, she concluded

that the appellant’s supervisor proposed to suspend him for 14 days because of

his misconduct and not because of any retaliatory motive. ID at 23-24.

On review, the appellant argues that the administrative judge erred in

relying on the text message to find that his supervisor did not have a retaliatory

motive because the text message does not establish that his supervisor informed

the SWPA Administrator that he opposed the reassignment. PFR File, Tab 1

at 10. We agree with the administrative judge that the text message supports a

finding that the appellant’s supervisor agreed with the appellant’s disclosure and

did not have a hostile reaction to it. The appellant also argues that the

administrative judge erred in relying on his supervisor’s memorandum because he

drafted it 10 days after the meeting in question and only after he met with human

resources. Id. at 10-11. We likewise find no merit to this argument. First, we

note that the appellant does not argue, or provide any evidence to suggest, that his

supervisor mispresented what was said at the meeting with the SWPA

Administrator, and we find no basis to conclude that he did. See Fry v. Office of

Personnel Management, 110 M.S.P.R. 649, ¶ 17 (2009) (observing that public

officials are presumed to do their jobs properly and in good faith). Second, we

n.9. The parties have not challenged this finding on review, PFR File, Tabs 1, 3, and

we discern no basis to disturb it.

find that the unrebutted, routinely made memorandum is probative

notwithstanding the fact that the appellant’s supervisor drafted it 10 days after the

meeting in question and after meeting with human resources. See Borninkhof v.

Department of Justice, 5 M.S.P.R. 77, 83-87 (1981) (setting forth the relevant

factors for assessing the probative value of hearsay evidence).

The appellant also appears to argue on review that the administrative judge

should have found retaliatory motive because his disclosure was highly critical of

the agency’s conduct. PFR File, Tab 1 at 10. We agree and modify the

administrative judge’s analysis on the second Carr factor accordingly. The Board

has found that “[t]hose responsible for the agency’s performance overall may well

be motivated to retaliate even if they are not directly implicated by the

disclosures . . . as the criticism reflects on them in their capacities as managers

and employees.” Wilson v. Department of Veterans Affairs, 2022 MSPB 7, ¶ 65

(quoting Whitmore v. Department of Labor, 680 F.3d 1353, 1370 (Fed. Cir.

2012)); Smith v. Department of the Army, 2022 MSPB 4, ¶¶ 28-29 (same). Here,

the appellant’s disclosure concerned potential whistleblower reprisal by the

SWPA Administrator. Thus, while the appellant’s criticism of the SWPA

Administrator’s planned action may not have directly implicated the appellant’s

supervisor, it nonetheless cast the SWPA Administrator, and thus the agency, in a

critical light. See Whitmore, 680 F.3d at 1370-71 (finding motive to retaliate

because the appellant’s criticisms “cast [the agency], and, by implication all of

the responsible [agency] officials, in a highly critical light by calling into

question the propriety and honesty of their official conduct”).. In light of the

foregoing, we modify the initial decision to find that the record reflects a slight

retaliatory motive in connection with the appellant’s proposed 14-day suspension.

In her consideration of the third Carr factor, the administrative judge found

that the appellant’s proffered comparator—a supervisory GS-15 Program

Manager with the same supervisor as the appellant who received only a reprimand

for failing to take action upon learning that a subordinate had discriminated

against another employee—was not similarly situated. ID at 24-25; IAF, Tab 26

at 12, 111, Tab 38 at 21-22. In so finding, the administrative judge explained

that, unlike the appellant, the other supervisor had not been counseled regarding

similar misconduct in the past, the events in question occurred several years prior

to the discipline, and he had been successful in all other aspects. Id. On review,

the appellant argues that the administrative judge took an overly restrictive view

of the third Carr factor and erred in finding that the other supervisor was not

similarly situated. PFR File, Tab 1 at 9-10. We agree.

Our reviewing court has held that, under Carr, the requirement that

comparator employees be “similarly situated” does not require “virtual identity”

and that “[d]ifferences in kinds and degrees of conduct between otherwise

similarly situated persons within an agency can and should be accounted for.”

Whitmore, 680 F.3d at 1373. Accordingly, we find that the appellant and the

other GS-15 Program Manager at the SWPA, who share a supervisor and

supervisory status, are similarly situated. See id. (finding two supervisors within

the same branch of the same department to be “similarly situated from an

employment position and responsibility perspective”). As discussed in the initial

decision, however, there are differentiating factors here that explain the

difference in treatment, including the nature of the misconduct and the fact that,

unlike the appellant, the other supervisor was not counseled regarding similar

misconduct in the past. ID at 24-25. Thus, we find that this comparator evidence

does not weigh against the agency. See Chavez v. Department of Veterans

Affairs, 120 M.S.P.R. 285, ¶ 34 (2013) (finding that the comparator employee’s

deficiencies were not sufficiently similar to the reasons for the appellant’s

termination to provide persuasive evidence regarding Carr factor three).

As the administrative judge correctly found, there is no other evidence in

the record regarding the treatment of similarly situated comparators. ID at 25. If

either or both of the first two Carr factors do not support a finding that the

agency would have taken the same personnel action absent the disclosure or

protected activity, the agency’s failure to present evidence of the third Carr

factor may prevent it from carrying its overall burden. Smith v. Department of

the Army, 2022 MSPB 4, ¶¶ 26-30; see also Miller v. Department of Justice,

842 F.3d 1252, 1259-63 (Fed. Cir. 2016). Here, we are left with the firm belief

that the agency would have taken the same action in the absence of the

appellant’s protected disclosure based on the strength of the evidence in support

of its action and the absence of a sufficient motive to retaliate against him.

Accordingly, the appellant’s request for corrective action remains denied.

NOTICE OF APPEAL RIGHTS 7

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions to provide a comprehensive

summary of all available review options. As indicated in the notice, the Board cannot

advise which option is most appropriate in any matter.

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and you wish to challenge the Board’s rulings on your whistleblower claims

only, excluding all other issues , then you may file a petition for judicial review

either with the U.S. Court of Appeals for the Federal Circuit or any court of

appeals of competent jurisdiction. The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the