Petition for Writ of Certiorari — Harold E. Rutila, IV, Petitioner v. Department of Transportation

Supreme Court briefOct 15, 2020

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Note: This disposition is nonprecedential

United States Court of Appeals

for the Federal Circuit

HAROLD E. RUTILA, IV,

Petitioner

DEPARTMENT OF TRANSPORTATION,

Respondent

2019-1712

Petition for review of the Merit Systems Protec

tion Board in No. DC-1221-18-0474-W-l.

Decided: February 10, 2020.

Harold Edward Rutila, IV, Canton, MI, pro se.

Domenique Grace Kirchner, Commercial Litiga

tion Branch, Civil Division, United States Department

of Justice, Washington, DC, for respondent. Also repre

sented by Joseph H. Hunt, Allison Kidd-Miller, Rob

ert Edward Kirschman, Jr.

Before Dyk, Taranto, and Stoll, Circuit Judges.

Per Curiam.

Harold E. Rutila IV appeals a decision from the

Merit Systems Protection Board (“Board”) denying his

request for corrective action under the Whistleblower

Protection Act. We affirm.

Background

Mr. Rutila had a temporary appointment as an Air

Traffic Control Specialist with the Federal Aviation

Administration (“FAA”). As a condition of continued

employment, he was required to take three perfor

mance evaluations that simulate real-life scenarios as

part of the Initial Tower Cab Training. In May 2016,

Dan Henderson administered and graded Mr. Rutila’s

first evaluation. Mr. Rutila challenged his score on this

evaluation by filing a Technical Review (“TR”). The TR

process is designed to offer trainees “an avenue to en

sure points lost during a[n evaluation] are based on

[relevant FAA] rules or procedures.” J.A. 421. Trainee

requests for TRs are evaluated by a Technical Review

Panel of two supervisors.

As a result of Mr. Rutila’s challenge, it was deter

mined that Mr. Henderson erroneously deducted one

point from Mr. Rutila’s grade based on Mr. Rutila’s fail

ure to refer to an aircraft using specific phraseology

during the simulation. Mr. Rutila regained the point

and consequently passed his first evaluation. He also

passed his second evaluation.

Mr. Rutila’s third evaluation was administered by

Michael Taylor. After completing this third evaluation,

Mr. Rutila was debriefed by Mr. Taylor and Mr. Hen

derson, though Mr. Taylor alone ultimately graded the

evaluation. Mr. Rutila received a failing score. His

score on the third evaluation lowered his overall train

ing score, which meant he could not pass the Initial

Tower Cab Training. Although Mr. Rutila challenged

his score on the third evaluation by filing six TRs, the

TR Appeal Board denied his challenges, and his score

remained unchanged. Mr. Rutila was deemed “mathe

matically eliminated” from the program and, according

to protocol, was terminated on May 24, 2016.

Mr. Rutila timely filed a complaint with the Office

of Special Counsel (“OSC”). He alleged that he had

been terminated as a reprisal for filing TRs and help

ing other trainees file TRs. In particular, he argued

that Mr. Henderson influenced Mr. Taylor’s scoring of

Mr. Rutila’s third evaluation in retaliation for Mr. Ru

tila’s earlier TR filing that noted Mr. Henderson’s grad

ing error on the first evaluation. On February 16,2018,

OSC terminated its inquiry.

On April 22, 2018, Mr. Rutila appealed to the

Board under the Whistleblower Protection Act, 5 U.S.C.

§ 2302(b)(8M9) (“WPA”). The Administrative Judge

(“AJ”) considered Mr. Rutila’s filings of TRs and ana

lyzed them as alleged grievances under § 2302(b)(9)(A),

but not as alleged protected disclosures under

§ 2302(b)(8). It found that the filing of TRs did not con

stitute protected activity under § 2302(b)(9)(A). The

Board also found that even if the filings of TRs had

constituted protected activities, the agency had shown

by clear and convincing evidence that Mr. Rutila would

have been removed absent the TR filings.1 The AJ also

found that Mr. Rutila had not exhausted several of his

other alleged protected disclosures before OSC. Mr. Ru

tila did not petition the Board for review of this deci

sion. The AJ’s decision became the final decision of the

Board.

Mr. Rutila appeals directly to this court. We have

jurisdiction under 5 U.S.C. § 7703 and 28 U.S.C.

§ 1295(a)(9).

Discussion

A Board decision must be affirmed unless it is “(1)

arbitrary, capricious, an abuse of discretion, or other

wise not in accordance with law; (2) obtained without

procedures required by law, rule, or regulation having

been followed; or (3) unsupported by substantial evi

dence.” 5 U.S.C. § 7703(c). Substantial evidence is “evi

dence that a reasonable mind may take as sufficient to

1 § 2302(b)(8)(A) defines protected disclosures as those made

by an employee “which the employee . . . reasonably believes evi

dences—any violation of any law, rule, or regulation, or gross mis

management, a gross waste of funds, an abuse of authority, or a

substantial and specific danger to public health or safety.” Section

2302(b)(9)(A)(i) defines a protected activity as “the exercise of

any appeal, complaint, or grievance right granted by any law,

rule, or regulation—with regard to remedying a violation of

[§ 2302(b)](8).”

establish a conclusion.” Grover v. Office ofPers. Mgmt.,

828 F.3d 1378,1383 (Fed. Cir. 2016).

The WPA prohibits an agency from taking a per

sonnel action in retaliation for any whistleblowing

“disclosure” or activity. 5 U.S.C. § 2302(b)(8)-(9). An

employee must show by a preponderance of the evi

dence that he made a protected disclosure or partici

pated in a protected activity (such as an appeal) that

contributed to a personnel action against him. See

Whitmore v. Dep’t of Labor, 680 F.3d 1353, 1367 (Fed.

Cir. 2012). “If the employee establishes this prima facie

case of reprisal for whistleblowing, the burden of per

suasion shifts to the agency to show by clear and con

vincing evidence that it would have taken ‘the same

personnel action in the absence of such disclosure.’ ” Id.

at 1364 (quoting 5 U.S.C. § 1221(e)). The Board may

consider whistleblowing charges only if the claimant

first presented them “with reasonable clarity and pre

cision” to OSC. Serrao v. Merit Sys. Prot. Bd., 95 F.3d

1569, 1577-8 (Fed. Cir. 1996); see also 5 U.S.C.

§ 1214(a)(3).

Mr. Rutila argues that the Board erred in finding

that he had jurisdiction only under 5 U.S.C.

§ 2302(b)(9) and not § 2302(b)(8). He argues that, at the

very least, his initial TR against Mr. Henderson consti

tuted a protected disclosure under § 2302(b)(8)(A). That

section defines protected disclosures as those made by

an employee “which the employee . . . reasonably

believes evidences—any violation of any law, rule, or

regulation, or gross mismanagement, a gross waste of

funds, an abuse of authority, or a substantial and spe

cific danger to public health or safety.” Section

2302(b)(9)(A)(i) defines a protected activity as “the ex

ercise of any appeal, complaint, or grievance right

granted by any law, rule, or regulation—with regard to

remedying a violation of [§ 2302(b)](8).”

We need not decide whether the Board erred in

finding that the filing of a TR by an employee on his

own behalf is more appropriately analyzed under

§ 2302(b)(9) because the Board under the WPA has ju

risdiction over individual rights of action under both

sections, and Mr. Rutila fails to demonstrate how he

was prejudiced by the Board limiting its consideration

to § 2302(b)(9). Under the current version of the WPA,

“an employee may file an IRA, and the Board will have

jurisdiction over the appeal, if the prohibited personnel

action is due to a disclosure covered by either

§ 2302(b)(8)—i.e. retaliation for whistleblowing—or

§ 2302(b)(9)(A)(i)—i.e. retaliation for exercising a

grievance right related to whistleblowing.” Miller v.

Merit Sys. Prot. Bd., 626 F. App’x 261, 266 (Fed. Cir.

2015).2 We see no error in the Board’s decision to

2 Mr. Rutila argues that the Board failed to consider his as

sistance to two other trainees in their submission of TRs as pro

tected disclosures and that these activities were not covered by

§ 2302(b)(9). Though we do not decide whether an employee’s fil

ing of a TR on his own behalf is a protected disclosure, we see no

error in the Board’s failure to treat his assistance in others’ TR

filings as protected disclosures under 5 U.S.C. § 2302(b)(8).

proceed under § 2302(b)(8) with respect to his TR ac

tivities.

Mr. Rutila also argues that the Board erred in not

finding his TRs to constitute protected activity in its

analysis under 5 U.S.C. § 2302(b)(9). The Board found

that Mr. Rutila’s TRs did not constitute protected ac

tivity because they “contained no reference to any legal

authority and could not reasonably have been inter

preted as raising any concern of illegality.” J.A. 6. The

Board also emphasized that “the mere filing of a TR is

routine in these circumstances.” J.A. 9. We also need

not decide if the TR appeal is a protected activity under

§ 2302(b)(9), because we conclude that the Board’s

finding that the FAA “would have terminated the ap

pellant absent his filing of the TRs to challenge his test

scores,” J.A. 7, is supported by substantial evidence.

The Board concluded that the FAA had shown by

clear and convincing evidence that it would have ter

minated Mr. Rutila even if the filings of TRs were con

sidered to be protected under § 2302(b)(9). The Board

followed the approach described in Carr v. Social Secu

rity Administration, 185 F.3d 1318, 1323 (Fed. Cir.

1999). The first Carr factor is “the strength of the

agency’s evidence in support of its personnel action.”

Id. The Board highlighted the agency’s evidence that

Mr. Rutila in fact “misguided an airplane and mishan

dled the situation” during his third evaluation. J.A. 89. The Board also pointed out that failing the course

normally leads to removal.

The second Carr factor is “the existence and

strength of any motive to retaliate on the part of the

agency officials who were involved in the decision.”

Carr, 185 F.3d at 1323. The Board found that “no evi

dence of any retaliatory animus against the appellant”

because “the mere filing of a TR is routine.” J.A. 9. In

addition, Mr. Henderson’s declaration indicated that

“he was unaware that the appellant had filed a TR.” Id.

Similarly, the Board found that “[t]here is no evidence

that either manager [who reviewed Mr. Rutila’s other

six TRs subsequent to his third evaluation] intended to

retaliate against the appellant by declining to award

him additional points.” Id.

The third and final Carr factor is “any evidence

that the agency takes similar actions against employ

ees who are not whistleblowers but who are otherwise

similarly situated.” Carr, 185 F.3d at 1323. There ap

pears to be no evidence of similar actions against em

ployees who are not whistleblowers. “[T]he absence of

any evidence relating to Carr factor three can effec

tively remove that factor from the analysis.” Whitmore,

680 F.3d at 1374. The Board did point out that the fact

that other trainees who filed TRs against Mr. Hender

son passed the training, which “undercuts [Mr. Ru

tila’s] claim that by filing TRs he was terminated from

his position.” J.A. 9.

We conclude that the Board’s analysis of the Carr

factors and its finding that the FAA “would have ter

minated the appellant absent his filing of the TRs to

challenge his test scores,” J.A. 7, were supported by

substantial evidence.

III

Mr. Rutila argues that the Board should have con

sidered two other protected disclosures in addition to

the TRs: (1) a trainee feedback submission he submit

ted after this third evaluation and (2) his in person ap

peal to two supervisors regarding his third evaluation.

The Board found that neither of these purported dis

closures was exhausted before OSC. “The test of the

sufficiency of an employee’s charge of whistleblowing

to OSC is the statement that the employee makes in

the complaint to OSC .. . , not the employee’s subse

quent characterization of that statement in his appeal

to the Board.” Serrao, 95 F.3d at 1577.

The OSC complaint does not mention his trainee

feedback form. And it mentions the in-person appeal

not as a protected disclosure, but as a “decision” of the

FAA not to allow him to retake the third evaluation.

The Board thus did not err in declining to consider

these disclosures.

Mr. Rutila argues that the Board improperly de

nied his discovery and document subpoena motions.

“Procedural matters relative to discovery and eviden

tiary issues fall within the sound discretion of the

board and its officials.” Curtin v. Office of Pers. Mgmt.,

846 F.2d 1373,1378 (Fed. Cir. 1988) “If an abuse of dis

cretion did occur with respect to the discovery and ev

identiary rulings, in order for petitioner to prevail on

these issues he must prove that the error caused

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substantial harm or prejudice to his rights which could

have affected the outcome of the case.” Id. at 1379.

On August 27, 2018, Mr. Rutila filed a motion for

a subpoena which sought documents and other evi

dence from Mr. Henderson. On October 24, 2018, Mr.

Rutila moved to compel discovery of certain interroga

tory responses and documents from the FAA. The AJ

denied Mr. Rutila’s discovery motions.

Mr. Rutila does not explain how a contrary ruling

would have affected the outcome. The AJ found that

there was no evidence that the agency had “failed or

refused to provide the appellant with any relevant or

material evidence.” J.A. 2635-36.3 The AJ’s decision to

deny these motions was thus not an abuse of discre

tion.

Mr. Rutila argues that he was deprived of his right

to a hearing. On October 25,2018, four days before the

scheduled hearing with the Board, Mr. Rutila moved

for a postponement on the ground that he did not have

adequate time to prepare and the AJ had not yet ruled

on his two discovery motions. On October 26,2018, the

AJ conducted a telephone conference, which was sum

marized on the record. The summary indicated that

3 To the extent Mr. Rutila’s motion for issuance of a subpoena

to Mr. Henderson can be read to be eliciting testimony in addition

to documentary evidence, there was likewise no prejudice because

the FAA had planned to call Mr. Henderson as a witness at the

hearing.

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Mr. Rutila “withdrew his request for a hearing.” J.A.

2632.

Mr. Rutila argues that he “felt coerced into agree

ing” to waive his hearing during the telephone confer

ence with the AJ because, absent a postponement, he

“could not reasonably prepare for a hearing” that was

to take place two days after the conference, and had

“not even received a decision on his motion for a sub

poena or motion to compel discovery” until the tele

phone conference. Appellant’s Br. 58-60. Mr. Rutila

failed to preserve his objection to the denial of his mo

tion to postpone by foregoing his right to a hearing.

AFFIRMED

COSTS

No costs.

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UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WASHINGTON REGIONAL OFFICE

HAROLD E. RUTILA, IV,

Appellant,

DOCKET NUMBER

DC-1221-18-0474-W-l

DATE: December 20, 2018

DEPARTMENT OF

TRANSPORTATION,

Agency.

Harold E. Rutila. IV. Fenton, Michigan, pro se.

Armando Armendariz. Fort worth, Texas, for the

agency.

Joann Putnam. Esquire, Des Moines, Washington,

for the agency.

BEFORE

Kasandra Robinson Styles

Administrative Judge

INITIAL DECISION

INTRODUCTION

On April 23,2018, Harold E. Rutila, IV filed an in

dividual right of action (IRA) appeal with the Board in

which he alleged that the agency retaliated against

him by terminating him from the FG-2152-01 position

of Air Traffic Control Specialist with the Federal Avia

tion Administration (FAA) because he filed several

Technical Reviews (TRs) challenging his test scores on

exams during an Initial Tower Cab Training. See Ap

peal File (AF), Tab 1. The Board has jurisdiction over

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this appeal pursuant to 5 U.S.C. §§ 1214(a)(3), 1221(a),

(e) (West 2007).

Because the appellant withdrew his request for a

hearing, this decision is based on the parties’ written

submissions. For the reasons discussed below, the ap

pellant’s request for corrective action is DENIED.

JURISDICTION

The following facts are undisputed. On February

16,2016, the appellant was appointed to the agency as

an Air Traffic Control Specialist, FG-2152-01, on a

temporary appointment, not to exceed March 15, 2017

with the FAA. The appellant’s official duty station was

Washington, DC but he was on temporary duty at the

Mike Monroney Aeronautical Center in Oklahoma

City, Oklahoma, attending Initial Tower Cab training

to remain employed by the FAA.

As part of his training, the appellant was required

to take a series of tests and evaluations. In May 2016,

Dan Henderson administered and graded the appel

lant’s first evaluation. On May 23, 2016, the appellant

filed a technical review (TR) to challenge his score on

his first evaluation. As a result of the TR, he regained

one point and passed his evaluation. The appellant

passed his second evaluation. Michael Taylor adminis

tered a third evaluation. The appellant received a score

of 15%. That score lowered the appellant’s overall

training score and he ultimately could not pass the In

itial Tower Cab training. The appellant challenged his

third evaluation by filing six TRs. The agency denied

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the TRs and terminated the appellant from his posi

tion, effective May 25, 2016. On June 30, 2016, the ap

pellant filed a complaint with the Office of Special

Counsel (OSC) in which he alleged that his termina

tion amounted to retaliation for filing the TRs. On Feb

ruary 16, 2018, OSC terminated its investigation into

the appellant’s allegations. On April 22, 2018, the ap

pellant filed the instant IRA with the Board.

During a preliminary status conference on June

28,2018,1 informed the parties that the appellant had

established jurisdiction over this appeal and was enti

tled to his requested hearing because he had raised a

non-frivolous allegation that he had exhausted his ad

ministrative remedies with OSC and raised a nonfrivolous allegation that exercised an appeal, com

plaint, or grievance right, amounting to protected ac

tivity pursuant to 5 U.S.C. § 2302(b)(9)(A), when on

May 23, 2016, he filed a TR of Dan Henderson’s grad

ing of his first evaluation with the FAA during Initial

Cab Tower training.1

I also found that the appellant satisfied the

knowledge and timing test as he alleged that Mr. Hen

derson was aware of the TR of his first evaluation, and

the appellant was terminated from his position merely

1 In his prehearing submission, the appellant refers to mak

ing protected disclosures. However, there is no evidence that any

of his purported disclosures were exhausted before OSC. The only

issue he raised were the TRs. Consequently, during a telephonic

status conference, I informed the parties that this IRA will be

evaluated under 5 U.S.C. § 2302(b)(9)(A) and not under 5 U.S.C.

§ 2302(b)(8). AF, Tab 50.

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two days after he filed the first TR. I further deter

mined that the termination was properly exhausted

before OSC and satisfied the definition of a covered

personnel action under 5 U.S.C. § 2302(a).

ANALYSIS AND FINDINGS

The appellant is required to establish his reprisal

for whistleblowing claim by preponderant evidence. He

must establish that: (1) he engaged in protected activ

ity described under 5 U.S.C. $ 2302(b)(9)(A)(i). (B). (C).

or (D): and (2) protected activity was a contributing fac

tor in the agency’s decision to take or fail to take a per

sonnel action as defined bv 5 U.S.C. § 2302(a). See 5

U.S.C. § 1221(e)(1): Webb v. Department of the Interior,

122 M.S.P.R. 248, 1 6 (2015). If the appellant makes

out a prima facie case, the agency is given an oppor

tunity to prove, 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)(2)

(West 2007); Fellhoelter v. Department of Agriculture,

568 F.3d 965, 970-71 (Fed. Cir. 2009); Webb, 122

M.S.P.R. 248,16.

In determining whether agency has shown by

clear and convincing evidence that it would have taken

the same personnel action in the absence of whistle

blowing, relevant factors include strength of agency’s

evidence in support of its personnel action, existence

and strength of any motive to retaliate on part of

agency officials who were involved in the decision, and

any evidence that agency takes similar actions against

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employees who are not whistleblowers but who are

otherwise similarly situated. 5 U.S.C.A. §§ 1221(e)

(West 2007); see Carr v. Social Security Administra

tion, 185 F.3d 1318,1322 (Fed. Cir. 1999). In Whitmore

v. Department of Labor, 680 F.3d 1353 (Fed. Cir. 2012),

the Court addressed the clear and convincing standard

and determined that the Board may not exclude or ig

nore evidence necessary to adjudicate the whistle

blower retaliation claim, but rather must consider all

of the relevant evidence. The Court found that the

Board cannot decide whether the agency has carried

its burden by “clear and convincing evidence” by look

ing only at the evidence that supports the conclusion

reached. Id. at 1367-68. It explained that “[e]vidence

only clearly and convincingly supports a conclusion

when it does so in the aggregate considering all the

pertinent evidence in the record, and despite the evi

dence that fairly detracts from that conclusion.” Id. at

1368. The Court noted that “[i]t is error for the MSPB

to not evaluate all the pertinent evidence in determin

ing whether an element of a claim or defense has been

proven adequately.” Id. In considering the existence

and strength of any motive to retaliate on the part of

agency officials who were involved in the decision, the

Board must consider evidence of other officials not di

rectly involved but who may have influenced the deci

sion by a retaliatory motive. Id. at 1370.

I note that, on his initial appeal form, the appel

lant raised harmful procedural error and unlawful dis

crimination as affirmative defenses. However, it is well

settled that such claims are not within the Board’s

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jurisdiction in an IRA appeal as IRA appeals are lim

ited to claims involving whistleblower retaliation. Agoranos v. Department of Justice, 119 M.S.P.R. 498, ‘ft 18

(2013). Thus, I will not adjudicate these claims in the

instant action.

The appellant proved bv preponderant evidence that

he exhausted his administrative remedies before OSC.

Here, the record demonstrates that the appellant

filed an OSC complaint on June 30, 2016 and alleged

that he was removed from his position for filing several

TRs. AF, Tab 1, Attachment (OSC Complaint). On Jan

uary 29, 2018, OSC informed the appellant that it

made a preliminary determination to close its inquiry

into his allegations. AF, Tab 1, Attachment (OSC Pre

liminary Determination Letter). By letter dated Feb

ruary 16, 2018, OSC advised the appellant that it had

terminated its inquiry and that he had 65 days to seek

corrective action from the Board. AF, Tab 1, Attach

ment (OSC Closure Letter).

As noted in the Order and Summary of the Tele

phonic Status Conference, I found that the appellant

exhausted his administrative remedies and estab

lished jurisdiction over his appeal. AF, Tab 50. Based

on this record, I find the appellant has demonstrated

by preponderant evidence that he exhausted his ad

ministrative remedies before OSC with regard the

whistleblowing claims at issue in this appeal.

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The appellant did not engage in protected activity un

der 5 U.S.C. § 2302(b)(9)(A)(i) bv filing TRs.

The appellant must show that he engaged in pro

tected activity over which the Board has jurisdiction.

For the activity to be qualified as “protected,” the ap

pellant must show by preponderant evidence that the

matter he disclosed in his “protected activity” was one

which a reasonable person, in his position, would be

lieve evidenced any of the stipulations identified in 5

U.S.C. § 2302(b)(8). Chavez v. Department of Veterans

Affairs, 120 M.S.P.R. 285, <1 18 (2013). In this instance,

the appellant must prove that he exercised any appeal,

complaint, or grievance right that is granted by any

law, rule, or regulation that seeks to remedy violations

of specific acts. 5 U.S.C. § 2302(b)(9)(A)(i). See Mudd v.

Department of Veterans Affairs, 120 M.S.P.R. 365, % 7

(2013) (the specific type of “protected activity” over

which the Board has jurisdiction is limited to that ac

tivity that seeks to remedy an- alleged violation of 5

U.S.C. § 2302(b)(8)). Thus, in order for the TR to

amount to “protected activity", the appellant must

show that he filed his TR for the purpose of remedying

a violation of law, rule, or regulation; or for remedying

gross mismanagement, a gross waste of funds, an

abuse of authority, or a substantial and specific danger

to public health or safety. See 5 U.S.C. §§ 2302(b)(8),

(b)(9)(A)(i).

The appellant alleges that he engaged in protected

activity by filing a TR following his first evaluation in

the simulator, on May 23, 2016. In that TR, he com

plained that Dan Henderson, his evaluator, scored him

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incorrectly when he used specific phraseology during

his run in the simulator. The appellant argued that the

guidance given to the trainees was that the specific

phraseology he had used was permitted, and that he

should therefore be credited with extra points. AF, Tab

53, Exhibit 1.

The Mike Monroney Training Academy offered all

trainees instructions on filing a TR. See AF, Tab 38, Ex

hibits 1, 2. The TR process was designed to offer a

trainee an avenue to dispute a grade received from an

evaluator. Training evaluators were instructed to ad

vise trainees to file a TR appeal if they were not satis

fied with their evaluation grade for review. Id. The

specific challenge to his test score in the appellant’s

first TR does not give rise to the conclusion that he was

attempting to remedy what he reasonably regarded as

a violation of a law, rule, or regulation; or what he rea

sonably regarded as gross mismanagement, a gross

waste of funds, an abuse of authority, or a substantial

and specific danger to public health or safety. AF, Tab

53, Exhibit 1. It contained no reference to any legal au

thority and could not reasonably have been interpreted

as raising any concern of illegality. I find that a rea

sonable person would find the language the appellant

used in the TR inadequate to support a conclusion that

he was attempting to remedy illegal actions, or remedy

gross mismanagement, a gross waste of funds, an

abuse of authority, or a substantial and specific danger

to public health and safety. See Mudd, 120 M.S.RR.

365, SI 7. I further note that there is no evidence that

the other six TRs the appellant filed immediately

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preceding his termination, contained any reference to

a violation of law, rule or regulation, gross manage

ment, a gross waste of funds, an abuse of authority, or

a substantial and specific danger to public health and

safety. AF, Tab 38, Exhibit 5. This is supported by the

letter he wrote to the Honorable Daniel Coats, his local

Congressman, in which he challenged the scoring pro

cess that was utilized to terminate him from his posi

tion. The letter did not contain any references to a

violation of law, rule or regulation, gross management,

a gross waste of funds, an abuse of authority, or a sub

stantial and specific danger to public health and safety.

AF, Tab 53, Exhibit 3.

Consequently, absent any evidence that the TRs

the appellant filed amounted to protected activity, I

must find that he has failed to establish his retaliation

for whistleblowing activity by a preponderance of the

evidence.

The agency established bv clear and convincing evi

dence that it would have terminated the appellant ab

sent his filing of the TR’s to challenge his test scores.

Even if the appellant had established his claim by

preponderant evidence, I would still deny his request

for corrective action because the agency has estab

lished by clear and convincing evidence that it would

have taken the same actions absent his filing of the

TRs. 5 U.S.C. § 1221(e)(2) (West 2007); see Fellhelter v.

Department of Agriculture 568 F.3d 965, 970-71 (Fed.

Cir. 2009). In determining whether an agency has

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shown by clear and convincing evidence that it would

have taken the same personnel action in the absence

of whistleblowing, the Board will consider the follow

ing 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 offi

cials who were involved in the decision; and (3) any ev

idence 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 agency’s evidence demonstrates that, during

his training, the appellant received four exam scores of

100 that were valued only 1% of his total grade. He re

ceived a score of a 96.24 that was valued at only 5% of

his total grade; another score of 85 that was valued at

15% of his total grade; two 30% valued scores, one 79

and a 15. AF, Tab 53, Exhibit 7. The appellant needed

19.36 final points to pass the entire training course

and he only scored 15 points. As a result, the appellant

was mathematically eliminated by 4.36 points.

The appellant’s third evaluation was a life case

scenario of a normal air traffic control setting that was

both difficult and compounding. The appellant mis

guided an airplane and mishandled the situation

within other airplanes in the vicinity, which led to mul

tiple point deductions. In his Summary of Findings, Mr.

Ward stated:

22a

I have reviewed all of our documentation regard

ing Mr. Rutila’s second (third) Performance As

sessment run on Local Ground. Based on the

written documentation, I can say that Mr. Rutila’s

run was in trouble almost from the very beginning.

With the very first two IFR departures, Mr. Rutila

failed to provide proper IFR separation, resulting

in his only sixteen (16) point error. The third IFR

departure sat at the approach end for over eight

minutes waiting to depart and should have re

sulted in a five point “Delay” error which the eval

uator documented on the worksheet but not did

not document on the grade form. The aircraft that

Mr. Rutila claims departed the airspace and then

returned was actually a VFR inbound from the

southwest requesting two “touch and go’s” fol

lowed by a full stop landing. Mr. Rutila worked

this aircraft (N9726Z) into a pattern for runway

28L, but had to send the aircraft around to avoid

another aircraft Mr. Rutila had cleared for takeoff

from the same runways. I don’t know what Mr. Ru

tila intended to do with N9726Z after that, but I

do know that the computer accurately followed all

of his instructions with regard to this aircraft. . .

AF, Tab 53, Exhibit 8. The appellant used the TR pro

cess to contest his grades on all of his evaluations just

as hundreds of trainees had done in the past. The in

tent of the TR process is to offer impartiality and ob

jectivity in the grading process. The appellant’s first

TR resulted in Mr. Ward awarding him one point, but

there were no points justified on his subsequent TRs.

Further, the TR instructions also provide guid

ance on trainees who have been “mathematically

23a

eliminated". Initial Cab Tower Training is an incredi

bly intense and difficult training and failing the course

is a normal procedure for removal. Thus, the mere fil

ing of a TR is routine in these circumstances and I find

no evidence of any retaliatory animus against the ap

pellant for using the TR procedure to contest his

scores. Additionally, according to Mr. Henderson’s

sworn declaration, he was unaware that the appellant

had filed a TR. See AF, Tab 53, Exhibit 9. The appellant

has asserted that, because Mr. Henderson was in the

same room monitoring another student’s evaluation,

he must have influenced his evaluator, Mr. Taylor.

However, I find no evidence to support this claim. The

evidence demonstrates that Mr. Taylor was the sole

grader and there’s no evidence that Mr. Taylor had any

knowledge that the appellant had filed a TR against

Mr. Henderson. AF, Tab 53, Exhibit 11. Moreover, the

appellant filed six subsequent TRs that Mr. MacNeill

and Mr. Ward reviewed and investigated. There is no

evidence that either manager intended to retaliate

against the appellant by declining to award him addi

tional points.

Finally, the appellant argues that other trainees

filed TRs against Mr. Henderson and passed the Initial

Cab Tower Training. This claim seems to undercut his

claim that by filing TRs he was terminated from his

position. It appears the TR practice is routine and an

accepted practice and other than the appellant’s bare

assertion, there is simply no evidence that the agency

retaliates against trainees who file TRs.

24a

Consequently, for all of the reasons discussed

above, I find that the appellant has failed to prove by

preponderant evidence that he engaged in protected

activity by filing several TRs. Absent evidence of any

protected activity I am unable to find that the TRs

were a contributing factor in agency’s termination ac

tion. Nevertheless, I find the agency has proven by

clear and convincing evidence that it would have ter

minated the appellant even if he did not file any TRs

challenging his test scores. Therefore, I find the appel

lant’s request for corrective action must be DENIED.

Decision

The appellant’s request for corrective action is DE

NIED.

FOR THE BOARD:

/S/

Kasandra Robinson Styles

Administrative Judge

NOTICE TO APPELLANT

This initial decision will become final on January

24. 2019. unless a petition for review is filed by that

date. This is an important date because it is usually

the last day on which you can file a petition for review

with the Board. However, if you prove that you received

this initial decision more than 5 days after the date of

issuance, you may file a petition for review within 30

days after the date you actually receive the initial de

cision. If you are represented, the 30- day period begins

to run upon either your receipt of the initial decision

25a

or its receipt by your representative, whichever comes

first. You must establish the date on which you or your

representative received it. The date on which the ini

tial decision becomes final also controls when you can

file a petition for review with one of the authorities dis

cussed in the “Notice of Appeal Rights” section, below.

The paragraphs that follow tell you how and when to

file with the Board or one of

26a

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WASHINGTON REGIONAL OFFICE

HAROLD E. RUTILA, IV,

Appellant,

DOCKET NUMBER

DC-1221-18-0474-W-l

DEPARTMENT OF

TRANSPORTATION,

Agency.

DATE: November 14, 2018

ORDER DENYING THE APPELLANT’S

MOTION FOR CERTIFICATION OF

INTERLOCUTORY APPEAL

On November 5,2018, the appellant filed a motion

for certification of interlocutory appeal regarding my

various orders and rulings. An interlocutory appeal is

an appeal to the Board of a ruling made by an admin

istrative judge during the processing of the case. 5

C.F.R. §§ 1201.91-.93 (2016). The Board’s regulations

at 5 C.F.R. § 1201.92 provide that an administrative

judge will certify a ruling for interlocutory review only

if the ruling involves an important issue of law or pol

icy about which there is a substantial ground for dif

ference of opinion and an immediate ruling will

materially advance the completion of the proceedings,

or the denial of an immediate ruling will cause undue

harm to a party or the public. McCarthy u. Interna

tional Boundary and Water Commission, 116 M.S.P.R.

594, 'll 18 (2011); Robinson v. Department of the Army,

50 M.S.P.R. 412,418 (1991). The Board will not reverse

27a

an administrative judge’s denial of request for certifi

cation absent an abuse of discretion. Id.

I find no basis to grant the appellant’s motion

based on the facts and circumstances presented by this

appeal. The appellant has not demonstrated that the

ruling involves an important issue of law or policy

about which there is a substantial ground for differ

ence of opinion and an immediate ruling will materi

ally advance the completion of the proceedings, or the

denial of an immediate ruling will cause undue harm

to a party or the public. Moreover, I find the appellant’s

motion amounts to a disagreement with my interpre

tation of the evidence he presented, which is not a

ground to grant his motion for certification of interloc

utory review. See Weaver v. Department of the Navy, 2

M.S.P.R. 129, 133-34 (1980), review denied, 669 F.2d

613 (9th Cir. 1982). I therefore DENY the appellant’s

motion to certify interlocutory review.

FOR THE BOARD:

/S/

Kasandra Robinson Styles

Administrative Judge

28a

Note: This disposition is nonprecedential.

United States Court of Appeals

for the Federal Circuit

HAROLD E. RUTILA, IV,

Petitioner

DEPARTMENT OF TRANSPORTATION,

Respondent

2019-1712

Petition for review of the Merit Systems Protec

tion Board in No. DC-1221-18-0474-W-1.

ON PETITION FOR PANEL REHEARING

(Filed Jun. 5, 2020)

Before Dyk, Taranto, and Stoll, Circuit Judges.

Per Curiam.

ORDER

Petitioner Harold Edward Rutila, IV filed a peti

tion for panel rehearing.

Upon consideration thereof,

It Is Ordered That:

29a

The petition for panel rehearing is denied.

The mandate of the court will issue on June 12,

2020.

For the Court

June 5. 2020

Date

/s/ Peter R. Marksteiner

Peter R. Marksteiner

Clerk of Court

30a

19-1712

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

HAROLD E. RUTILA IV,

Petitioner

DEPARTMENT OF TRANSPORTATION,

Respondent

PETITION FOR REVIEW FROM THE

MERIT SYSTEMS PROTECTION BOARD

IN DC-1221-18-0474-W-l

A. J. KASANDRA ROBINSON STYLES

PETITION FOR PANEL REHEARING

OF PETITIONER

Dated: May 19, 2020 Respectfully submitted,

KALBIAN HAGERTY LLP

/s/ Eric L. Siegel

Eric L. Siegel

(D.C. Bar No. 427350)

888 17th Street NW,

Suite 1000

Washington, D.C. 20006

esiegel@kalbianhagerty.com

31a

Phone: (202) 223-5600

Facsimile: (202) 223-6625

Counsel for Petitioner

Harold E. Rutila, IV

CERTIFICATE OF INTEREST

Pursuant to Federal Circuit Rule 47.4, counsel for

Petitioner hereby files this Certificate of Interest as fol

lows:

(1) The full name of the party represented in the case

by the counsel is Harold E. Rutila, IV.

(2) The name of the real party in interest is Harold E.

Rutila, IV.

(3) There is no need for a corporate disclosure state

ment because Petitioner is a natural person.

(4) No law firm appeared for Petitioner in the lower

tribunal; Petitioner appeared pro se. There is no

other counsel other than the undersigned who is

expected to appear in this Court.

(5) There are no other cases known to counsel to be

pending in this or any other court or agency that

will directly affect or be directly affected by this

Court’s decision in the pending appeal.

32a

[i] TABLE OF CONTENTS

Table of Authorities................................................

Argument.................................................................

BECAUSE OF PRO SE PETITIONER’S

PENDING MOTION TO COMPEL, HIS

REQUESTED HEARING POSTPONE

MENT BASED ON INADEQUATE OP

PORTUNITY TO PREPARE, AND THE

BOARD’S PERSISTENCE THAT HE

CONSIDER SETTLEMENT, THE BOARD

VIOLATED HIS RIGHTS WHEN IT

PRESSURED HIM TO WAIVE HIS

HEARING WITHOUT BEING FULLY IN

FORMED ......................................................

II. BECAUSE RUTILA WAS PREJUDICED

BY THE BOARD’S SUMMARY DENIAL

OF HIS MOTION TO COMPEL, RE

MAND IS PROPER TO COMPLETE

THAT DISCOVERY.....................................

III. ON THE MERITS, THE BOARD ERRED

IN FINDING AGAINST RUTILA ON HIS

PRIMA FACIE CASE AND THE

AGENCY’S CASE........................................ 10

A. Rutila Met The Legal Requirements

For Protected Activity Under The

Whistleblower Protection Act.............. 11

B. Rutila Presented Credible Evidence To

Establish That Henderson, The Al

leged Retaliator, Had Knowledge Of

His Protected Activity Sufficient To

Meet The Knowledge-Timing Test To

Satisfy His Prima Facie Burden.......... 12

33a

C. Rutila Presented Evidence To Under

mine The FAA’s Heavy Burden Of

Proof That It Would Have Terminated

His Employment Absent His Protected

Activity................................................... 14

Conclusion..................................................

[ii] Proof of Service...................................

Certificate of Service...............................

Certificate of Compliance - Word Count

Certificate of Compliance - Confidential Words . 16

Addendum Containing Court’s Opinion

[iii] TABLE OF AUTHORITIES

Aka v. Wash. Hosp. Ctr.,

156 F.3d 1284 (D.C. Cir. 1998).....................

Carr u. Social Security Administration,

185 F.3d 1318 (Fed. Cir. 1999)..................... 6, 8,15

Conant v. Office of Personnel Management,

79 M.S.P.R. 148 (1998).................................

Curtin v. Office of Personnel Management,

846 F.2d 1373 (Fed. Cir. 1988).....................

Frampton v Dep’t of Interior,

811 F.2d 1486 (Fed. Cir. 1987).....................

Graves v. U.S. Postal Service,

106 M.S.P.R. 224, 2007 M.S.P.B. 171 (2007)

McBurney v. OPM,

39 M.S.P.R. 126 (1988).................................

Miller v. DOJ,

842 F.2d 1252 (Fed. Cir. 2016).....................

34a

Pariseau v. Department of the Air Force,

113 M.S.P.R. 370 (2010).............................

1,2, 3, 4

Phillips v. Dept, ofAir Force,

71 M.S.P.R. 381 (1996)...............................

Pignataro v Dep’t of Veterans Affairs,

104 M.S.P.R. 563 (2007).............................

Reeves v Sanderson Plumbing Prods., Inc.,

530 U.S. 133 (2000)....................................

7,8

Rusin v Dep’t of Treasury,

92 M.S.P.R. 298 (2002)...............................

[iv] Rutila v. Department of Transportation,

3,11,12,14

ECF 39 at 9 (February 10, 2020)

Sanofi-Aventis Deutschland GmbH v. Glenmark

Pharms., Inc.,

748 F.3d 1354 (Fed. Cir. 2014).........................

Siman v. Department ofAir Force,

80 M.S.P.R. 306 (1998).....................................

Staub v. Proctor Hosp.,

562 U.S. 411 (2011)..........................................

St. Mary’s Honor Center v. Hicks,

509 U.S. 502 (1993)..........................................

Wagner v. United States,

365 F.3d 1358 (Fed. Cir. 2004).........................

White v. Gov’t Printing Office,

108 M.S.P.R. 355 (2008)...................................

5,6

STATUTES

5 U.S.C. § 7701(a.

5 U.S.C. § 7703(c)

35a

5 U.S.C. § 7701(a)(1)....

5 U.S.C. § 2302(b)(9)(A)

5 U.S.C. § 2302(b)(9)....

5 C.F.R. § 1201.51(c)....

5 C.F.R. § 1201.73(d)(3)

5 C.F.R. § 1201.73(d)(4)

[1] ARGUMENT

BECAUSE OF PRO SE PETITIONER’S

PENDING MOTION TO COMPEL, HIS RE

QUESTED HEARING POSTPONEMENT

BASED ON INADEQUATE OPPORTUNITY

TO PREPARE, AND THE BOARD’S PER

SISTENCE THAT HE CONSIDER SETTLE

MENT, THE BOARD VIOLATED HIS

RIGHTS WHEN IT PRESSURED HIM TO

WAIVE HIS HEARING WITHOUT BEING

FULLY INFORMED

Under 5 U.S.C. § 7701(a)(1), an appellant has a

fundamental right to a hearing. Frampton u. Dep’t of

Interior, 811 F.2d 1486, 1488, 1489 (Fed. Cir. 1987).

That right cannot be effectively waived unless it is un

equivocal after being fully informed of adjudicatory re

quirements and options. Pariseau v. Department of the

Air Force, 113 M.S.P.R. 370, 373-374 (2010).

The Board Administrative Judge (“AJ”) summar

ily stated in her Prehearing Order that Petitioner,

Harold Rutila (“Rutila”), waived his hearing right

but failed to document any explanations given to

36a

substantiate that the waiver was informed. Appx2632.

If prehearing conference statements are to be relied

upon to establish a hearing waiver, the conference

should be documented to establish that all adjudica

tory requirements and options were discussed. See

McBurney v. OPM, 39 M.S.P.R. 126, 130-31 (1988);

Phillips v. Dept, of Air Force, 71 M.S.P.R. 381, 383—84

(1996) (remanding case to properly explain, with refer

ence to prehearing conference, basis for conclusion that

hearing was waived). That did not happen here.

Pursuant to 5 C.F.R. § 1201.51(c), Rutila filed on

October 25, 2018, a motion to postpone the hearing for

good cause based on inadequate time to prepare. He [2]

spent 40 hours during the previous week reviewing

newly produced documents and preparing a 241-page

detailed motion to compel (including exhibits) and prehearing submissions. Appx2569. He stated:

I would be severely prejudiced by having a

hearing on October 29th, 2018. I hold a full

time job and have no representation. The

workload imposed on me to prepare for a hear

ing this soon in light of the information I am

lacking would be, in no uncertain terms, un

bearable.

Appx2571.

The Board has made clear:

An appellant before the Board has the right to

withdraw his request for a hearing. Graves v.

U.S. Postal Service, 106 M.S.P.R. 224, P 4,

2007 M.S.P.B. 171 (2007); Conant v. Office of

37a

Personnel Management, 79 M.S.P.R. 148, 150

(1998). However, there is a strong policy in fa

vor of granting an appellant a hearing on the

merits of his case, and therefore withdrawal

of a hearing request must come by way of

clear, unequivocal, or decisive action. Id. Fur

ther, the decision to withdraw a hearing

request must he informed, i.e., the appel

lant must be fully apprised of the rele

vant adjudicatory requirements and

options, including the right to request a

postponement or continuance of the hear

ing, or dismissal of the appeal without

prejudice to its timely refiling. Id.

Pariseau, 113 M.S.P.R. at 373-374 (emphasis added)

(remanding and ordering hearing where AJ did not

give pro se litigant adjudicatory options); Graves v. U.S.

Postal Service, 102 M.S.P.R. 224, 228 (2007) (remand

ing based on failure to memorialize what occurred dur

ing teleconference when appellant sought to withdraw

hearing request); Pignataro v Dep’t of Veterans Affairs,

104 M.S.P.R. 563, 568 (2007) (remanding for hearing

where no written waiver in the record and [3] judge’s

comments were so abbreviated that it was impossible

to ascertain whether he “fully apprised [appellant] of

the relevant adjudicatory requirements and options in

her case”). The Board has considered this hearing

waiver issue sua sponte, although the appellant had

not specifically challenged the AJTs finding, and found

38a

no hearing waiver. Siman v. Department of Air Force,

80 M.S.P.R. 306, P 6 (1998)1.

In this case, given delays caused by the FAA in re

sponding to legitimate discovery requests and open is

sues days before the hearing, Rutila requested a

continuance on October 25 after filing his motion to

compel and prehearing submissions. At the October 26

prehearing conference, the AJ denied Rutila’s request

for hearing postponement prior to deciding the motion

to compel and did not follow Board precedent in offer

ing him a continuance to prepare for the hearing.

Pariseau, 113 M.S.P.R. at 374. Instead, he was given a

Hobson’s choice to either go to the hearing in three

days (October 29) ill prepared, given the new docu

ments to review which were produced days earlier and

witness examinations to prepare, or accept the AJ’s in

vitation to go into mediation to continue settlement

discussions [4] and submit to a briefing schedule. The

AJ advised him to “sincerely consider” the FAA’s set

tlement offer given that “agency actions are rarely re

versed in IRAs.” He felt pressured and acquiesced to

1 The FAA argued in its Federal Circuit brief (ECF 30 at 13)

that Petitioner did not challenge the Prehearing Order’s accu

racy, so he waived it. As a pro se litigant, how would he know

what to challenge regarding the AJ’s obligations to inform him of

his rights and options? He objected to denial of his continuance

request. Moreover, the Order gave 5 days to challenge the Order,

but the hearing was in 3 days. This Court opined that Rutila

waived his objection to postponement denial by waiving his hear

ing right. Rutila v. Department of Transportation, ECF 39 at 9

(February 10, 2020)(attached hereto). If waiver was not informed,

then the objection was not waived either. The Court should ad

dress waiver sua sponte.

39a

the AJ’s admonishment to consider the FAA’s settle

ment proposal and elected briefing. Settlement was his

focus and not the ramifications of a hearing waiver.

The AJ’s conference summary also does not docu

ment what she advised Rutila that made his waiver

informed, just like the pro se appellant in Pariseau.

There is no record that he was fully explained the con

sequences of waiving his hearing right and his options.

The Board’s strong policy favors granting him a hear

ing under these circumstances.

II.

BECAUSE RUTILA WAS PREJUDICED BY

THE BOARD’S SUMMARY DENIAL OF HIS

MOTION TO COMPEL, REMAND IS PROPER

TO COMPLETE THAT DISCOVERY

Petitioner is mindful of the Court’s limited power

to review a Board AJ’s decision regarding discovery

matters. Curtin v. Office ofPersonnel Management, 846

F.2d 1373, 1378-79 (Fed. Cir. 1988). The AJ’s decision

denying Rutila’s motion to compel will be overturned

only where an abuse of discretion is clear and harmful.

Id. “If an abuse of discretion did occur with respect to

the discovery and evidentiary rulings, in order for pe

titioner to prevail on these issues he must prove that

the error caused substantial harm or prejudice to his

rights which could have affected the outcome of the

case.” Id. at 1379.

[5] A review of Rutila’s motion to compel, the AJ’s

summary denial with no explanation, and the evidence

required in this IRA appeal confirms that the AJ’s

40a

denial caused him substantial prejudice which could

have affected the outcome. The denied discovery re

quests were directed at the FAA’s heavy burden of

proof, namely that it would have taken the same action

absent his protected activity.

First, the AJ failed to follow Board rules by requir

ing Rutila to file his motion within six days of receiving

hundreds of pages of documents from the FAA within

days of the hearing. 5 U.S.C. § 7701(a) states: “Appeals

shall be processed in accordance with regulations pre

scribed by the Board.” (Emphasis added.) Rules gov

erning discovery provide that appellants shall have 10

days to file a motion to compel. 5 C.F.R. § 1201.73(d)(3).

Rutila received the FAA’s final production on October

18, so his motion would be due (Monday) October 29.

Per MSPB rules, discovery shall be completed no

later than the prehearing conference (October 26). 5

C.F.R. § 1201.73(d)(4). How could discovery be com

pleted if there was a pending motion to compel that

required resolution? This improper truncation of dead

lines prejudiced Rutila.

The Board has overturned an AJ’s decision to deny

an appellant sufficient opportunity to pursue a motion

to compel. White v. Gov’t Printing Office, 108 M.S.P.R.

355, 359 (2008) (AJ abused discretion by setting more

restrictive deadline to file motion to compel and by

denying motion because “discovery has concluded”). [6]

The appellant in White sought disciplinary records of

comparators to support his affirmative defense of race

discrimination to attack an adverse personnel action.

41a

The Board concluded that, because the motion was cal

culated to lead to discovery of admissible evidence, the

appellant was prejudiced in his ability to present his

affirmative defense. Id. at 359.

Throughout Rutila’s motion to compel, he stated

that he had insufficient time to examine the FAA’s re

cent document production. See, e.g., Appx 1169, 1181.

The FAA had months to prepare and provide re

sponses, but he only had days to review and object, fil

ing a motion under severe time pressure.

A review of Rutila’s motion and his discovery re

quests further demonstrate that denial of the motion

prejudiced his ability to establish retaliatory motive

and to attack the FAA’s evidence. The documents re

quested address the factors set forth in Carr v. Social

Security Administration, 185 F.3d 1318,1323 (Fed. Cir.

1999).

The AJ’s denial of Rutila’s motion regarding Doc

ument Request No. 10 was most harmful to his ability

to marshall proof. That request sought “any records

concerning . . . evaluation of Harold Rutila . . . in

cluding] transcripts and error logs from the Adacel

Tower Simulation System.” The request sought, among

other documents, his confiscated notes from the third

evaluation scenario that he failed, dozens of flight

strips, and any transcript or recording of the flight sim

ulation to corroborate the six Technical Reviews

(“TRs”) that he filed. Appxll71. Pointing [7] to exhibits

attached to his motion, Rutila confirmed that the FAA

42a

denied destroying those records. Yet, it did not produce

them. Id.

Rutila filed his OSC complaint on June 30, 2016

and his EEO complaint on July 11,2016. Consequently,

the FAA was on notice to preserve evidence. FAA Acad

emy Supervisor and Panel Reviewer Ronald Ward

(“Ward”) provided sworn answers to interrogatories in

Rutila’s companion EEO matter in July 2017, where he

stated - in direct contradiction to his declaration

in the Board appeal - that his “research” disclosed

that a plane abnormally made three 360-degree turns

as a result of a computer malfunction!2 Appx 1174,

2726. Rutila was entitled to obtain that “research” to

substantiate his claims on appeal and to attack the

FAA’s assertion that it would have terminated him ab

sent his protected activity.3 Appx 1174.

That discovery also would have impugned the

credibility of alleged “independent” Panel Reviewers

Ward and MacNeill, creating a strong inference of a

2 See Appxll35 (Ward’s panel findings conflict with his EEO

sworn interrogatory answers). Ward admitted that if the simula

tor equipment fails, the scenario will be restarted. Appx 1292.

However, if it did fail, as stated in his EEO interrogatory answers,

then why was the scenario not restarted in Rutila’s case? An in

ference of retaliation is permissible. Was Ward hiding an abuse

of discretion or protecting Rutila’s FAA evaluators (Henderson

and Taylor) for failing to carry out their jobs correctly after he

challenged Henderson’s conduct on May 23, 2016 and his over

bearing interference on May 24?

3 The FAA claimed that there were no responsive documents

in 2018, despite Ward’s 2017 admission that records existed.

Appxl 175.

43a

cover-up for retaliation to impose agency liability. See

Appxll75. See Reeves v [8] Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 147 (2000) (“In appropriate

circumstances, the trier of fact can reasonably infer

from the falsity of the explanation that the employer is

dissembling to cover up a discriminatory purpose”). If

a “suspicion of mendacity”4 combined with other evi

dence is sufficient to defeat summary judgment in a

civil rights retaliation case, actual mendacity by Ward

would certainly defeat a finding that “substantial evi

dence” existed under 5 U.S.C. § 7703(c) to support the

AJ’s decision regarding the FAA’s burden of proof.

If the FAA has destroyed Ward’s “research” mate

rials, then a spoliation instruction and adverse infer

ence would be appropriate, further undercutting

“substantial evidence” to support the AJ’s decision.

Sanofi-Aventis Deutschland GmbH v. Glenmark

Pharms., Inc., 748 F.3d 1354,1361-1362 (Fed. Cir. 2014)

(upholding spoliation instruction by district court for

destruction of evidence in litigation).

That the FAA has refused to produce in Rutila’s

Board appeal sworn interrogatory answers from

agency officials with personal knowledge is also trou

bling. Rutila provided evidence in his motion that

confirmed that many of the [9] FAA’s answers were

If ‘disbelief is accompanied by a suspicion of mendacity,’

. . . the likelihood of intentional discrimination is increased, per

mitting the factfinder to infer discrimination more readily.” Aka

v. Wash. Hosp. Ctr., 156 F.3d 1284,1294 (D.C. Cir. 1998) (en banc)

(quoting St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511

(1993)).

4 «

44a

inaccurate or incomplete.5 Appx 1172, citing other

parts of his motion. Obviously, FAA counsel who signed

the answers cannot testify. Agency actions made the

interrogatory responses effectively unreliable and non

binding and could not be used by Rutila to properly ex

amine and potentially impeach witnesses. The AJ’s

denial of Rutila’s motion removed one discovery device

from his arsenal to pursue his appeal. Appxll72 (cit

ing cases and MSPB Judge’s Handbook, requiring that

interrogatories be answered in writing under oath or

affirmation). It cannot be overstated that Rutila was

appealing pro se, doing his best to marshall evidence.

He was stymied by two FAA lawyers. The AJ’s failure

to hold the FAA accountable to produce binding, com

plete evidence is no doubt prejudicial.

5 Most egregious was the contradictory evidence of Ward’s

July 2017 sworn interrogatory answers, which Rutila compared

against the FAA’s responses to his requests for admissions. Com

pare Appxll73-1174; Appxl288-1294; Appx2726-2728; with

Appxll35, Appxll39 (Ward panel worksheet). Rutila was enti

tled to receive Ward’s “research”, but the FAA refused to produce

it, and the AJ failed to compel it, causing Rutila prejudice.

Ward’s EEO interrogatory answers also conflict with his interrog

atory answers in the Board appeal regarding computer malfunc

tioning. Appxl291. The possible effect on the outcome of Rutila’s

appeal is clear because Ward rejected six TRs, claiming “evalua

tor verses student observation.” Id. With evidence now corrobo

rating three 360-degree turns, Rutila’s contentions are no longer

unappealable “observations.” The 5 TRs would have been upheld,

restoring 59 points to Rutila and precluding elimination from the

training program, even assuming one 16-point deduction on the

grade sheet remained uncontested. He would have scored 84%

and not 15% on the evaluation.

45a

Rutila also requested documents concerning eval

uations of fellow trainees where Henderson and Taylor

intervened to rectify computer simulation errors that

[10] arose, as well as documents regarding other train

ees who were permitted to retake a scenario or were

reinstated after failing their FAA training evaluations.

Appxll79-1180; Appxl245 (FAA declined to answer).

The FAA refused to produce that information, and the

AJ agreed solely based on “the reasons provided by the

agency in its motion in opposition.” Appx2636. Both

categories of documents are relevant and material to

assess whether the FAA met its burden and how simi

larly situated trainees were treated (the third Carr fac

tor).

Rutila requested documents pertaining to rules,

policies or practices that governed how evaluators

were to handle computer simulation malfunction. This

is relevant because if FAA policies dictated that Rutila’s evaluation scenario had to be restarted under the

circumstances, see, e.g., Appxl73, but Henderson and

Taylor failed to do so, it would lend credence to the in

ference that there was a retaliatory motive behind that

failing. The Agency declined to produce anything in re

sponse, and the AJ did not compel them to do so.

The AJ’s denial of Rutila’s motion was prejudicial,

requiring reversal.

46a

III. ON THE MERITS, THE BOARD ERRED IN

FINDING AGAINST RUTILA ON HIS PRIMA

FACIE CASE AND THE AGENCY’S CASE

This Court observed that the Board made findings

in denying Rutila’s appeal - only two of which are per

tinent here in this Petition: (1) in analyzing Rutila’s

TRs as alleged grievances under 5 U.S.C.

§ 2302(b)(9)(A), the AJ found that filing of TRs did not

constitute protected activity under the WPA; and (2)

even if the TRs had [11] constituted protected activity,

the agency had shown by clear and convincing evi

dence that Rutila would have been removed absent the

TR filing. Rutila, ECF 39 at 3. Both findings are with

out merit based on the evidence and rules of law gov

erning WPA claims.

A. Rutila Met The Legal Requirements

For Protected Activity Under The Whis

tleblower Protection Act

This Court did not address whether filing TRs is

protected activity because it affirmed the Board’s find

ing that the FAA would have made the same decision

absent Rutila’s protected activity, as supported by

“substantial evidence.” Rutila, ECF 39 at 6.

The May 23, 2016 TR that Rutila filed specifically

cited FAA Order 7110.65 2-4-21 and 7110.65W 1-2-1.

Appx771. The FAA stipulated that Rutila’s alleged pro

tected disclosure was based on these FAA Orders.

Appx0890, Appxl068. Lastly, Henderson claimed on

May 23 that Rutila’s pronunciation of an aircraft was

47a

a “rule,” so it supports a protected activity finding.

Appx0944. The Board has found that a “rule” covered

by the WPA includes a prescribed guide for action or

conduct, regulation or principle. Rusin v. Dep’t of Treas

ury, 92 M.S.P.R. 298,306 (2002) (citation omitted). Rutila has met the requirements of 5 U.S.C. § 2302(b)(9)

as a matter of law because his TR was an appeal or

grievance of explicit FAA rule violations. Appx421,424

(students required to reference FAA rule violated); Rutila Opening Brief (ECF 17) at 13-14.

[12] B. Rutila Presented Credible Evi

dence To Establish That Henderson,

The Alleged Retaliator, Had Knowledge

Of His Protected Activity Sufficient To

Meet The Knowledge-Timing Test To

Satisfy His Prima Facie Burden

The Board erred in finding a lack of retaliator

knowledge to support retaliatory animus (the second

Carr factor) because there was evidence, and reasona

ble inferences to be drawn from that evidence, to sup

port such knowledge. See Rutila, ECF 39 at 6-7.

The evidence demonstrates that, of the three (3)

TRs filed on May 23, 2016, all three were against

Henderson, the alleged retaliator, and all three were

overturned against him, challenging his competence as

an evaluator.6 The following day, after Rutila’s third

6 The Court noted the AJ’s finding that other trainees who

filed TRs against Henderson passed the training, “which ‘under

cuts [Rutila’s] claim that by filing TRs he was terminated from

his position.” Rutila, ECF 39 at 7. Yet, Henderson had no

48a

performance evaluation — he successfully scored high

marks on the previous two evaluations - he challenged

the failing outlier score on multiple grounds, again cit

ing FAA rule violations and rules taught in the pro

gram. That his official evaluator was Michael Taylor

and not Henderson does not insulate the FAA from

WPA liability. As this Court acknowledged in its opin

ion (Id. at 2) and the FAA admitted (Appx2661), Hen

derson insinuated himself - contrary to FAA rules that

prohibit the same evaluator from evaluating a trainee

more than once (Appx782) [13] - and pressed his posi

tions in light of Taylor’s apparent confusion during the

debrief session to influence the conclusion that Rutila

failed to perform to certain standards (Appx788). Ru

tila countered that he was adhering to FAA rules, and

the computer malfunctioned during the evaluation.7

Under a cat’s paw theory of liability, Henderson’s par

ticipation could substantiate Agency liability. Miller v.

DOJ, 842 F.2d 1252,1264 (Fed. Cir. 2016) (concurring),

citing Staub v. Proctor Hosp., 562 U.S. 411, 424 (2011).

Furthermore, contrary to Henderson’s declaration

in which he states that he did not know the May 23 TR

was overturned against him so he could not “retaliate”

against Rutila, FAA rules require that he sign off on

the previous day’s TR that Rutila won prior to being

placed in Rutila’s official records. Appx 1244-1245. An

opportunity to retaliate against others who filed on May 23.

Appxl93, 773-774. His opportunity to go after Rutila leaves open

an inference of retaliation.

7 See Appx780, Appx785, Appx788 (Rutila’s detailed recita

tion of Henderson’s interference on May 24).

49a

agency is bound by its own rules and regulations. Wagner

v. United States, 365 F.3d 1358, 1361 (Fed. Cir. 2004).

Rutila also pointed out that he was told at the Academy

that evaluators are informed when a TR is ruled in a

trainee’s favor to avoid the trainee filing TRs on the

same matter in the future. Appx784. An inference can

be drawn that Henderson was made aware of the TR.

In addition, FAA rules require that the TR Panel

Reviewers interview the evaluator in deciding a TR re

view. Appx426; Appx421 (FAA work instructions shall

[14] apply to all personnel in handling TRs). Conse

quently, a reasonable inference can be drawn that Ward

and MacNeill interviewed Henderson on May 23.8 Ac

cordingly, the knowledge-timing test applies to lead to

the conclusion that Rutila met his prima facie burden.

C. Rutila Presented Evidence To The

FAA’s Heavy Burden Of Proof That It

Would Have Terminated His Employ

ment Absent His Protected Activity

Regarding the two managers (Ward and MacNeill)

who reviewed the six TRs challenging the outcome

8 Neither Ward nor MacNeill denied definitively that they

spoke with Henderson. Their near verbatim declarations merely

stated that they “did not recall” but then hedged by stating that

it was their “routine” to document if they interviewed the evalua

tor. Appx2666, Appx2667. Given the mendacity of Ward in his

EEO sworn interrogatory answers, the veracity of those declara

tions also is called into question. Henderson’s declaration likewise

states that he did not recall but offers speculation that he did not

speak with Ward and MacNeill. Appx2684-2685. The factfinder is

required to reject his speculation as inadmissible evidence.

50a

(.Rutila, ECF 39 at 7), Rutila highlighted serious cred

ibility issues and contradictions under oath by Ward,

who was the lead manager who rejected Rutila’s TR

appeals. See, supra, note 5. Those contradictions cre

ate an inference that they too participated in an effort

to silence Rutila because he filed multiple grievances

that challenged the failure of FAA evaluators to follow

applicable FAA rules and practices in administering

the program and problems with its computer simula

tion equipment. On remand, Rutila should be given

the [15] opportunity to present this evidence to demon

strate that the FAA cannot meet its burden of proof to

overcome WPA liability.

The third and final Carr factor could also militate

against the FAA if Rutila was permitted to present

comparator evidence and receive complete responses

to his document requests, which were the subject of his

denied motion to compel. He did present evidence that

the FAA kept at least one other trainee in the FAA pro

gram who failed the course but who did not file TRs.

Appxll79. This raises the question whether Rutila

was eliminated because of his protected activity.

Combining the evidence highlighted in Rutila’s

opening brief to this Court (ECF 17 at 47) that com

puter malfunction issues are fairly commonplace, with

the Ward EEO interrogatory answers that a malfunc

tion took place on May 24, which, by Ward’s own ad

mission, should have prompted a restart of the

51a

scenario,9 there are serious questions whether there

was “substantial evidence” to support the AJ’s finding

below that the FAA would have taken the same action

absent protected activity.

CONCLUSION

Rutila, as a pro se litigant, should have been given

the opportunity to present his best case at a hearing

on the merits, but he was prevented from doing so

based [16] on the compounding actions of the FAA and

Board below. Based on fairness, this Petition should be

granted, and the Court should reverse and remand.

PROOF OF SERVICE

I, Eric L. Siegel, hereby certify that, in accordance with

Administrative Order 20-01 issued on March 20,2020,

no hard copies were filed with the Clerk of the Court.

/s/ Eric L. Siegel

Eric L. Siegel

CERTIFICATE OF SERVICE

I, Eric L. Siegel, hereby certify that on this 19th day of

May, 2020,1 caused to be served by hand-delivery two

(2) copies of this Petition for Panel Rehearing on

9 There were four retakes or make-up slots available, so it

would not have caused the FAA any burden to allow Rutila a re

test. Appx784.

52a

counsel for Respondent at her home address, which

was provided under condition of confidentiality.

/s/ Eric L. Siegel

Eric L. Siegel

CERTIFICATE OF COMPLIANCE WORD COUNT

I certify that the word count for this Petition for Panel

Rehearing is 3,845 words.

53a

UNITED STATES OF AMERICA MERIT

SYSTEMS PROTECTION BOARD

WASHINGTON REGIONAL OFFICE

HAROLD E. RUTILAIV,

Appellant,

Docket No.

DC-1221-18-0474-W-1

November 5, 2018

DEPARTMENT OF

TRANSPORTATION,

Agency.

Assigned to the

Honorable Kasandra

Robinson Styles

MOTION FOR CERTIFICATION

FOR INTERLOCUTORY REVIEW

Pursuant to 5 C.F.R. § 1201, Appellant Harold E.

Rutila IV respectfully moves the Board to certify its

October 26th, 2018 ruling concerning the dismissal of

two motions, the first to compel discovery, and the sec

ond for a subpoena, for interlocutory review. The afore

mentioned ruling involves important questions of law

or policy about which there is substantial ground for

difference of opinion. Additionally, an immediate rul

ing on this matter will materially advance the comple

tion of the proceeding. Finally, denial of an immediate

ruling will cause undue harm to Appellant; it would

permit a second bite at the apple for the Agency, in the

event it decides to disclose additional documents or

other evidence as authorized by the Order Closing the

Record, Dkt. 51.

At 12:08 P.M. Eastern Time today, Plaintiff sought

via email to discuss this motion with the Agency’s

54a

counsel, Mr. Armando Armendariz and Ms. JoAnn Put

nam, but no response was received by the close of busi

ness in all four major U.S. time zones. Appellant

received some correspondence concerning settlement,

but not any correspondence in response to his request

to discuss this motion.

BACKGROUND

Appellant filed a motion to compel discovery on

October 24th, 2018. Dkt. 39. The next day, Appellant

filed a motion for postponement of the hearing, based

in part on the reasoning that Appellant had not re

ceived a complete discovery production from the

Agency. See Dkt. 46.

On October 26th, 2018, the parties and the Board

convened for a telephonic status conference, during

which Appellant was informed by Judge Styles that his

motion to compel discovery as well as his motion for a

subpoena were denied. This ruling was documented in

the Board’s status conference summary. See Dkt. 50.

Although it is not so documented, Appellant’s motion

for postponement of the hearing was also denied.

ARGUMENT

An interlocutory appeal is an appeal to the Board

of a ruling made by a judge during a proceeding. The

judge may permit the appeal if he or she determines

that the issue presented in it is of such importance to

the proceeding that it requires the Board’s immediate

55a

attention. § 1201.91. The judge will certify a ruling for

review only if the record shows that: (a) the ruling in

volves an important question of law or policy about

which there is substantial ground for difference of

opinion; and (b) an immediate ruling will materially

advance the completion of the proceeding, or the denial

of an immediate ruling will cause undue harm to a

party. § 1201.92.

Certification is appropriate for the following rea

sons:

1. The denial of Appellant’s motions involves

an important question of law or policy,

about which there is substantial ground for

difference of opinion.

The primary questions that arise from Appellant’s

motion to compel concern how federal laws and rules

concerning discovery apply in the context of an MSPB

appeal. Board rules refer to the Federal Rules of Civil

Procedure as “instructive, but not controlling.” This

raises specific questions about the propriety of the

Agency’s discovery responses, which do not comport to

any standards that are well established in the federal

courts. A specific question and perhaps the most im

portant one at this juncture, is whether the Agency

should be required to submit interrogatory responses

that are signed under oath or affirmation.

As detailed in Appellant’s motion, the Board’s

Judges’ Handbook states that interrogatory responses

must be signed under oath or affirmation. The Federal

56a

Rules of Civil Procedure, and the Federal Rules of Ev

idence concerning a respondents’ requirement to have

personal knowledge when testifying under oath, com

port with the MSPB Judges’ Handbook in this regard.

Conversely, the Agency argues that it is not re

quired to conform to the aforementioned standards be

cause Board regulations do not explicitly require them

to. This is the same position that has thus far been

adopted by the Board in this IRA appeal. Judge Styles

ruled in favor of the Agency “for the reasons provided

by the agency in its motion in opposition.” Dkt. 50 at 5.

Since that position contradicts the Board’s own hand

book and the established discovery rules of the federal

court, there is good reason to believe there is substan

tial ground for a difference of opinion.

Appellant’s motion to compel discovery contains

arguments that are well-supported by the Board’s own

Judges’ Handbook, the Federal Rules of Civil Proce

dure, and the Federal Rules of Evidence. There is wide

spread support among the federal courts, and the

Board generally, that Appellant is correct to request

that the Board order the Agency to submit signed in

terrogatory responses.

Additionally, the Board is permitting the parties

to “submit additional evidence and argument” by the

dates provided in the close or record order. See Dkt. 50

at 5. Appellant is significantly burdened in this regard

because the Agency is in the sole custody and control

of nearly all of the information concerning this case.

Discovery has ended in this IRA appeal. To the extent

57a

it has not, the Agency is not expected to produce any

more discovery to Appellant because all of its argu

ments in opposition to Appellant’s motion to compel

discovery were found to be acceptable.

Some information that Appellant believes would

ultimately lend to the credibility of his arguments and especially to the strength of his arguments against

the Agency’s burdens in this matter — has not been pro

duced. In other cases, the information has been pro

duced with redactions that block crucial information

from those records. This is not to mention the fact that

Appellant has submitted sworn affidavits from their

own officials which contradict the Agency’s interroga

tory responses.

With respect to Appellant’s motion for subpoena,

Judge Styles has ruled that it was denied because “The

appellant’s motion to compel did not address the

agency’s refusal to provide him with any documents or

other evidence identified in the subpoena request.”

However, the subject of the subpoena request was a re

tired Agency employee, Mr. Dan Henderson. Aside

from records that the Agency could produce in discov

ery during Mr. Henderson’s employment with the

Agency, the Agency has no legal obligation (or perhaps

even ability) to furnish responsive information that

Mr. Henderson had in his possession after his employ

ment with the Agency. Insofar as the subpoena is con

cerned, Mr. Henderson is treated as a third party

unaffiliated with the Agency. Since the Agency claims

it has received “factual” information from Mr. Hender

son that it used to compile its discovery responses, and

58a

since the Agency had called upon Mr. Henderson to at

tend the hearing in this IRA appeal, Appellant sought

Mr. Henderson’s records for review beforehand.

2. An immediate ruling will materially ad

vance the completion of the proceeding.

An immediate ruling will materially advance the

completion of these proceedings because it would re

solve a key question that is affecting the parties’ abil

ity to narrow the issues in this IRA appeal.

Furthermore, it would allow the issues brought forth

in the IRA appeal to be resolved on the merits, based

on the documentation obtained from the Agency and/or

Mr. Henderson. In the event the Board agrees with Ap

pellant, Appellant would be entitled to obtain more in

formation, which would definitively allow for a

narrowing of the issues, specifically as they pertain to

Appellant’s “contributing factor” test and the Agency’s

“clear and convincing” burden.

The Agency’s requirement to submit interrogatory

responses that are signed under oath or affirmation

would also likely change the course of this IRA appeal.

Specifically, it is expected that, if the responses are

indeed required to be submitted under oath or affirma

tion, the content of the responses would significantly

change. Such a change may cause the Agency to en

hance any prospective settlement offers1, further

1 To date, Appellant has not received any formal settlement

offers from the Agency, although one is expected on November 9,

2018.

59a

expediting the resolution of this IRA appeal without

further judicial intervention.

3. The denial of an immediate ruling will cause

undue harm to Appellant.

The denial of an immediate ruling will cause un

due harm to Appellant in that he will be permanently

denied the opportunity to resolve disputes with the

Agency’s discovery productions, despite that those dis

putes are well founded. The same can be said about

Appellant’s inability to review any information in the

custody of Mr. Henderson that the Agency upon which

the Agency has relied to respond to Appellant’s discov

ery requests or upon which it will rely in future briefs

before the close of the record. If these matters are re

solved, they would likely lead to the production of doc

uments and other evidence which further support

Appellant’s claims. A denial of an immediate ruling

would prevent Appellant from utilizing evidence he be

lieves he is lawfully entitled to receive.

What the Agency produced is not sufficient in

form, such as interrogatory responses that lack signa

tures; in substance, such as documents that contain

redactions rendering them almost unusable; or in its

conformity to established discovery requirements like

those contained in the Federal Rules of Civil Proce

dure and those specified in the MSPB Judges’ Hand

book.

60a

If the immediate ruling is denied, the Agency will

have the complete control to introduce new evidence

that it did not produce in discovery, but which may

have been responsive to Appellant’s discovery re

quests. Furthermore, the Agency’s introduction of any

new evidence will prejudice Appellant because the

Agency would be able to hand-pick select portions of a

larger batch of documents, or other evidence, that only

supports their defense, while successfully concealing

the rest from the discovery process and from the Board,

despite that the remaining information might lend

more supportive towards Appellant’s claims. While

Appellant will have an opportunity to respond to new

evidence introduced before the close of the record,

§ 1201.59(c), Appellant will not be able to respond with

information that the Agency did not provide to him in

discovery.

If Appellant is denied the information he re

quested, and elects to appeal any initial decisions in

this matter to the Board, this could again present the

Agency with an opportunity to take a second bite at the

apple, producing information it should have already

produced, but did not produce, in this discovery pro

cess.

61a

CONCLUSION

Certification is appropriate in this case. For the

foregoing reasons, the Board should certify the ruling

for interlocutory appeal and review the denial of Ap

pellant’s motion to compel discovery.

Respectfully submitted,

I declare under penalty of perjury under the laws of

the United States that the foregoing is true and cor

rect.

Executed on

November 5, 2018

s/ Harold Edward Rutila IV

Harold Edward Rutila IV

12498 Woodhull Lndg

Fenton, MI 48430

h.rutila@gmail. com

(810) 845-3497

I hereby certify that I have submitted this document

through the MSPB e-Appeal system and all parties of

record have received a copy electronically.

s/ Harold Edward Rutila IV

Harold Edward Rutila IV

12498 Woodhull Lndg

Fenton, MI 48430

h. rutila@gmail .com

(810) 845-3497

62a

UNITED STATES OF AMERICA MERIT

SYSTEMS PROTECTION BOARD

WASHINGTON REGIONAL OFFICE

HAROLD E. RUTILA, IV,

Appellant,

DOCKET NUMBER DC1221-18-0474-W-l

DATE: October 26, 2018

DEPARTMENT OF

TRANSPORTATION,

Agency.

SUMMARY OF TELEPHONIC

STATUS CONFERENCE

On October 26,2018,1 conducted a telephonic sta

tus conference with the appellant and the agency’s rep

resentatives Armando Armendariz and Joann Putman.

This document summarizes the significant portions of

the conference. The parties are advised to carefully re

view this order because, absent timely notice from a

party that this summary is incorrect, the appeal will

be limited to the issues described herein. During the

conference, the appellant withdrew his request for a

hearing. I will issue a separate order with a briefing

and closing of the record schedule.

Facts

The following facts are undisputed. On February

16, 2016, the appellant was appointed to the agency

as an Air Traffic Control Specialist, FG-2152-01, on a

temporary appointment, not to exceed March 15, 2017

63a

with the agency’s Federal Aeronautics Administration

(FAA). The appellant’s official duty station was Wash

ington, DC but he was on temporary duty at the Mike

Monroney Aeronautical Center in Oklahoma City,

Oklahoma, attending Initial Tower Cab training to re

main employed by the FAA.

As part of his training, the appellant was required

to take a series of tests and evaluations. In May 2016,

Dan Henderson administered and graded the appel

lant’s first evaluation. On May 23, 2016, the appellant

filed a technical review (TR) to challenge his score on

his first evaluation. As a result of the TR, he regained

one point and passed his evaluation. The appellant

passed his second evaluation. Michael Taylor adminis

tered a third evaluation. The appellant received a score

of 15%. That score lowered the appellant’s overall

training score to a point that he ultimately could not

pass the Initial Tower Cab training. The appellant

challenged his third evaluation by filing six TRs. The

agency denied the TRs and terminated the appellant

from his position, effective May 25, 2016. On June 30,

2016, the appellant filed a complaint with the Office

of Special Counsel (OSC) in which he alleged that his

termination amounted to reprisal for filing the TRs. On

February 16, 2018, OSC terminated its investigation

into the appellant’s allegations. On April 22, 2018, the

appellant filed the instant individual right of action

(IRA) with the Board.

During a preliminary status conference with the

parties on June 28, 2018,1 informed the parties that

the appellant had established jurisdiction over this

64a

appeal and was entitled to his requested hearing be

cause he had raised a non-frivolous allegation that he

had exhausted his administrative remedies with OSC

and raised a non-frivolous allegation that exercised an

appeal, complaint, or grievance right, amounting to

protected activity pursuant to 5 U.S.C. § 2302(b)(9)(A),

when on May 23, 2016, he filed a TR of Dan Hender

son’s grading of his first evaluation with the FAA dur

ing Initial Cab Tower training.1

I also found that the appellant satisfied the

knowledge and timing test as he alleged that Mr. Hen

derson was aware of the TR of his first evaluation, and

the appellant was terminated from his position merely

two days after he filed the first TR. I further deter

mined that the termination was properly exhausted

before OSC and satisfies the definition of a covered per

sonnel action under 5 U.S.C. § 2302(a).

Issues

At the hearing on the merits of the appellant’s

claim, he is required to establish his reprisal for whis

tleblowing claim by preponderant evidence. He must

establish that: (1) he engaged in protected activity de

scribed under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D);

and (2) protected activity was a contributing factor in

1 In his prehearing submission, the appellant refers to mak

ing protected disclosures. However, there is no evidence that any

of his purported disclosures were exhausted before OSC. The only

issue he raised were the TRs. Consequently, I told the parties that

this IRA will be evaluated under 5 U.S.C. § 2302(b)(9)(A) and not

under 5 U.S.C. § 2302(b)(8).

65a

the agency’s decision to take or fail to take a personnel

action as defined by 5 U.S.C. § 2302(a). See 5 U.S.C.

§ 1221(e)(1); Webb v. Department of the Interior, 122

M.S.P.R. 248, 'll 6 (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. 5 U.S.C. § 1221(e)(2); Fellhoelter v. Department ofAgriculture, 568 F.3d 965,97071 (Fed. Cir. 2009); Webb, 122 M.S.P.R. 248, f 6.

In determining whether agency has shown by

clear and convincing evidence that it would have taken

the same personnel action in the absence of whistle

blowing, relevant factors include strength of agency’s

evidence in support of its personnel action, existence

and strength of any motive to retaliate on part of

agency officials who were involved in the decision, and

any evidence that agency takes similar actions against

employees who are not whistleblowers but who are

otherwise similarly situated. 5 U.S.C.A. §§ 1221(e); see

Carr v. Social Security Administration, 185 F.3d 1318,

1322 (Fed. Cir. 1999). In Whitmore v. Department of La

bor, 680 F.3d 1353 (Fed. Cir. 2012), the Court addressed

the clear and convincing standard. It found that the

Board may not exclude or ignore evidence necessary to

adjudicate the whistleblower retaliation claim, but ra

ther must consider all of the relevant evidence. The

court found that the Board cannot decide whether the

agency has carried its burden by “clear and convincing

evidence” by looking only at the evidence that supports

the conclusion reached. Id. at 1367-68. It explained

66a

that “[e]vidence only clearly and convincingly supports

a conclusion when it does so in the aggregate consider

ing all the pertinent evidence in the record, and despite

the evidence that fairly detracts from that conclusion.”

Id. at 1368. The court noted that “[i]t is error for the

MSPB to not evaluate all the pertinent evidence in de

termining whether an element of a claim or defense

has been proven adequately.” Id. In considering the

existence and strength of any motive to retaliate on

the part of agency officials who were involved in the

decision, the Board must consider evidence of other of

ficials not directly involved but who may have influ

enced the decision by a retaliatory motive. Id. at 1370.

I note that, on his initial appeal form, the appel

lant raised harmful procedural error and unlawful dis

crimination as affirmative defenses. However, it is well

settled that such claims are not within the Board’s ju

risdiction in an IRA appeal as IRA appeals are limited

to claims involving whistleblower retaliation. Agoranos v. Department of Justice, 119 M.S.P.R. 498, K 18

(2013). Thus, I will not adjudicate these claims in the

instant action.

Motion for Subpoena/Motion to Compel

On August 27, 2018, the appellant filed a motion

for a subpoena in which he was seeking documents and

other evidence for Dan Henderson. On October 3,2018,

I informed the parties that I did not rule on this motion

because it was unclear whether this was actually a mo

tion to compel discovery as the agency had refused to

67a

provide the appellant with this information. The

agency indicated that the parties remained engaged in

the discovery process and were attempting to resolve

all ongoing discovery disputes. The appellant’s motion

to compel did not address the agency’s refusal to pro

vide him with any documents or other evidence identi

fied in the subpoena request. Thus, the subpoena

request is hereby denied.

On October 24, 2018, the appellant filed a motion

to compel discovery. On October 25, 2018, the agency

filed a motion in opposition to the appellant’s motion

to compel. I have reviewed both parties’ respective mo

tions. For the reasons provided by the agency in its mo

tion in opposition, I do not find the agency has failed or

refused to provide the appellant with any relevant or

material evidence in this matter during the discovery

process. I therefore deny the appellant’s motion to com

pel discovery.

Settlement

If the parties settle this appeal, I will cancel the

hearing. The Board may retain jurisdiction to enforce

the terms of the settlement agreement if it is reduced

to writing and made part of the Board’s record. If not

made part of the record, the Board cannot enforce the

settlement agreement. See 5 C.F.R. § 1201.41(c)(2)

(2016). If the parties send me a copy of a signed settle

ment agreement and I am not otherwise advised, I will

assume the parties want the agreement made part of

the record for enforcement purposes. In addition, if the

68a

appeal is settled, I will assume the appellant agrees to

dismiss the appeal unless I am otherwise advised. The

parties have waived the prohibition against ex parte

communications concerning settlement matters.

Corrections to this Summary

If this summary is inaccurate, a party must so no

tify me in writing within five (5) days from receipt of

this Order. In the absence of any notice from the par

ties, this summary will be final and will not be modi

fied without a showing of good cause. Because the

appellant has withdrawn his request for a hearing, the

parties are hereby ORDERED to comply with the

deadlines outlined in the Close of Record Order by sub

mitting additional evidence and argument by the dates

provided.

FOR THE BOARD:

/S/

Kasandra Robinson Styles

Administrative Judge

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UNITED STATES OF AMERICA MERIT

SYSTEMS PROTECTION BOARD

WASHINGTON REGIONAL OFFICE

HAROLD E. RUTILAIV,

Appellant,

Docket No.

DC-1221-18-0474-W-1

October 25, 2018

DEPARTMENT OF

TRANSPORTATION,

Agency.

Assigned to the

Honorable Kasandra

Robinson Styles

APPELLANTS MOTION FOR

POSTPONEMENT OF HEARING

Appellant Harold E. Rutila IV hereby moves the

Board to postpone the hearing in the above-referenced

case, currently scheduled for Monday, October 29th,

2018. Good cause exists in support of this Motion,

shown herein. The Agency opposes this Motion.

DECLARATION

I, Harold E. Rutila IV, hereby do declare as follows:

I am moving for a postponement of the hearing

date in this Appeal. The Agency opposes this Motion

because it believes it is prepared for the hearing, and

because, according to Agency’s counsel Ms. Putnam, I

should have filed my motion to compel on October 12th,

2018.

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I have two outstanding motions before the Board:

The first is a mot ion for a subpoena of former Agency

employee Dan Henderson, who is expected to testify as

a witness on behalf of the Agency. Dkt. 25.1 am seeking

Mr. Henderson’s personal records in advance of his

testimony at the hearing. As Mr. Henderson is no

longer employed at the Agency, much of the infor

mation requested in the subpoena is not available

through traditional discovery with the Agency. How

ever, because Mr. Henderson is the subject of my Ap

peal, in the interest ofjustice, I should have a sufficient

opportunity to review his records well prior his testi

mony.

The second outstanding motion is a motion to

compel discovery. Dkt. 39. The Agency was served

with a discovery request on July 30th, 2018. Through

a series of extensions, which I did not oppose in the

interest of good faith, the Agency had until October

18th, 2018 to produce discovery responses. The Agency

served objections and non-responses to me as late as

October 18th. The Board gave me six days to file a mo

tion to compel, which is four days less than the regula

tions provide. See Dkt. 37, compare with 5 C.F.R.

§ 1201.73(d)(3).

When I asked the Agency for their position on this

Motion, Agency’s counsel Ms. Putnam claimed I should

have filed a motion to compel on October 12th, 2018 six days prior to the end of their discovery period. This

position is not congruent with the events of this case.

Had I done that, I would have wasted both mine and

the Board’s time. The Agency would have been able to

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counter-argue that my motion was premature. And,

they would have been right; the Agency didn’t stop pro

ducing discovery until October 18th. In light of those

deficient productions, I would have had to file yet an

other motion to compel.

I cannot reasonably be ready for a hearing on Oc

tober 29th, I have spent the last six days preparing and

filing a motion to compel. That motion was due on the

same date as my prehearing submissions. The total ex

penditure of time I spent on those items combined is

approximately 40 hours across 6 days. During that

same period of time I also had to work. I am now left

with five more days to prepare for the hearing, without

even knowing what the result of my outstanding mo

tions will be.

Furthermore, I am not the proximate cause of the

need to postpone the hearing. I have stated on the rec

ord as early as August 23rd, 2018 that there were is

sues obtaining discovery from the Agency. Dkt. 21. The

next day, Agency’s counsel Mr. Armendariz experi

enced a family emergency, which ultimately resulted in

the case being delayed until October 10th. Discovery

was supposed to be finished on October 15th, but the

Agency moved to extend that deadline to October 18th.

That date has since passed, and there are still signifi

cant discovery issues.

I do not believe the Agency can proffer any legiti

mate, good-faith arguments that would support requir

ing us to have the hearing on October 29th. This would

give the Board only two days to review and rule on the

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merits of my motion to compel. During this same pe

riod of time, the Board must also rule on my motion for

a subpoena. This leaves me with only the weekend to

prepare my Appeal for hearing, not counting my time

that will be spent travelling to the hearing location. To

the extent I prevail on either of the outstanding mo

tions, materials that may be produced as a result

would need to be added to my prehearing submissions.

This timeline does not account for any possibility that

the Agency could fail to comply with an order to pro

duce discovery, which would entail another series of

motions.

I do not believe the Agency would be prejudiced

by a postponement. As of our latest conversations, the

Agency does not have any personnel travelling to the

physical hearing location in Washington, D.C. As far as

I am aware, I am the only one travelling there. The

Agency’s witnesses are from offices in Oklahoma City,

OK. I have been previously advised that the Agency’s

witnesses and attorneys will be joining the hearing

from a remote video connection in Oklahoma City. In

the case of a postponement, the Agency’s witnesses

would not be severely inconvenienced. At most, the

Agency’s attorneys, who are not in Oklahoma City, will

simply not travel to that location. The Agency would

then have additional time to prepare their side for the

hearing. I do not know how the Agency could argue it

would be prejudiced by this.

I would be severely prejudiced by having a hearing

on October 29th, 2018.1 hold a full-time job and have

no representation. The workload imposed on me to

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prepare for a hearing this soon in light of the infor

mation I am lacking would be, in no uncertain terms,

unbearable. For these reasons, I ask that the Board

approve my request for a postponement of the hearing

date.

Respectfully submitted,

I declare under penalty of perjury under the laws of

the United States of America that the foregoing is true

and correct.

Executed on

October 25, 2018

s/ Harold Edward Rutila IV

Harold Edward Rutila IV

12498 Woodhull Lndg

Fenton, MI 48430

(810) 845-3497

I hereby certify that I have submitted this document

through the MSPB e-Appeal system and all Parties of

record have received a copy electronically.

s/ Harold Edward Rutila IV

Harold Edward Rutila IV

12498 Woodhull Lndg

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UNITED STATES OF AMERICA MERIT

SYSTEMS PROTECTION BOARD

WASHINGTON REGIONAL OFFICE

HAROLD E. RUTILAIV,

Appellant,

Docket No.

DC-1221-18-0474-W-1

October 24,2018

DEPARTMENT OF

TRANSPORTATION,

Agency.

Assigned to the

Honorable Kasandra

Robinson Styles

APPELLANT’S MOTION TO

COMPEL DISCOVERY

Appellant Harold E. Rutila IV hereby moves to

compel discovery in accordance with 5 C.F.R.

§ 1201.73(c). This Motion is timely filed in accordance

with the Board’s October 22nd, 2018 Order Reschedul

ing. Dkt. 37.

In accordance with 5 C.F.R. § 1201.73(c)(iii), Ap

pellant has discussed the anticipated Motion with the

Agency and has made a good faith effort to resolve

these discovery disputes and narrow the areas of

disagreement. Some portions of Appellant’s discovery

have been resolved by those discussions. As a result,

not every interrogatory, request for production of doc

uments (RPD), or request for admission is subject to

this Motion.

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BACKGROUND AND SUMMARY

Appellant first served the Agency with discovery

requests on July 30th, 2018. See Exhibit 1. Consistent

with 5 C.F.R. § 1201.73(d)(2), the Agency’s responses

were due on August 19th, 2018. Since that day is a

Sunday, the deadline was moved to Monday, August

20th, 2018. 5 C.F.R. § 1201.23. The Agency did not

comply with this deadline or seek an extension from

the Board.

Instead, on August 21st, 2018, Agency’s counsel

Mr. Armando Armendariz contacted Appellant seeking

to discuss a list of agreed-upon material facts. Agency’s

counsel insisted he had until August 30th, 2018 to

respond and affirmed that Agency lines of business

(LOBs) were working on the responses to Appellant’s

discovery requests. When asked, no date of production

was offered.

The next day, August 22nd, Appellant advised the

Agency that he could not agree to any facts until he

reviewed the Agency’s discovery production. Appellant

also advised the Agency’s counsel that the Agency’s

discovery responses were overdue. Agency’s counsel

suddenly changed course, stating “I will be sending

all responses today.” See Appellant’s Request for Ex

tension of Time Exhs. 1-8 (Dkt. 21). At 9:15 RM. East

ern Time, Appellant was served with a 14-page

discovery response consisting nearly entirely of objec

tions. The document was authored by Agency’s coun

sel. See Exhibit 2. It appeared to be an llth-hour

production, produced only as a result of Appellant’s

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prodding about the tardiness of the response, replete

with non-conformity to traditional discovery rules, in

cluding the most obvious issue - a lack of signatures

anywhere.

A case suspension was eventually issued, effective

September 10th, 2018 through October 10th, 2018. Dkt

26. During the suspension, the Agency added another

attorney, Ms. Joann Putnam, to its defense. Dkt. 29.

The Agency also contacted Appellant, and the parties

attempted to rectify some discovery issues. Appellant

sent the Agency an overview of his issues, and the

Agency responded soon thereafter. See Exhibits 2, 3, 4.

The Agency’s general positions are (a) that it is not

required to submit to Appellant interrogatories signed

by officials or agents under oath or affirmation; (b) that

its objections are all proper according to Board rules;

and (c) that it will amend its objections to state them

with more specificity. See Exhibit 3.

Agency’s counsel Ms. Putnam advised the parties

and the Board during an October 3rd, 2018 telephonic

status conference that the Agency “stands by our ob

jections.” This notwithstanding, the Agency subse

quently submitted amended discovery responses twice,

which contained more objections and resulted in the

release of some responsive records, albeit with exten

sive redactions. In some cases, records have significant

portions cut off through as a result of improper scan

ning processes. See, e.g., Exhibit 19; compare with Ex

hibit 18. Some responses were never produced.

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GENERAL ARGUMENTS

1. Appellant’s requests are proportional to the

needs of this Appeal.

The Agency has objected several times on grounds

that Appellant has made requests that are not “propor

tional to the needs of the case.” See Appendix A; Exhib

its 3, 4, 5, and 6. Appellant’s requests are not only

proportional, but the information required to respond

to them is almost entirely digitally stored. Appellant

has mainly requested information that is stored on

government information systems: class rosters, score

books, Technical Review Intake Forms, records from

his evaluations, and other materials which are stored

electronically. Most of the records the Agency did pro

duce clearly indicate that they came from electronic

storage mediums such as the Agency’s KSN intranet

site, to which Agency officials with information about

this case have easy access. The extent to which Appel

lant requested handwritten notes and tangible paper

documents is limited to those which he created himself

(such as his notepad from his evaluation), or handwrit

ten notes taken during his termination by the witness

ing HR representative (which were never produced).

2. Appellant disputes the content of all of the

Agency’s interrogatory responses and objec

tions, except 5, 16, and 24, averring that the

responses still must be signed.

Appellant has very limited time to file this Mo

tion and cannot offer an in-depth analysis of every

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discovery issue, but provides support for several spe

cific objections herein, to the best of his ability given

his time frame. Appellant contends that the Agency

will essentially need to re-do nearly every interroga

tory response should it be compelled to have officers

and/or agents sign the responses under oath. Appellant

contests the Agency’s responses and objections. Objec

tions that are based around the pre-December 1, 2015

amendments to the federal rules (“not reasonably cal

culated to lead to the discovery of admissible evidence,”

etc.) are not proper.

The Agency’s objections on grounds of vagueness

to terms and phrases in the common parlance - includ

ing the terms “merit system principles,” “validated,”

“mitigation strategies,” and “duties,” - are completely

unfounded. See Appendix A at 3, 5, and 11.

In its response to Interrogatory 4, the Agency’s

distortion of the phrase “reasonable opportunity to

demonstrate improvement” such that the Agency

merely provides its purported position on “re-takes”

makes its response incomplete. See Id.

The Agency has released information in discovery

that essentially disproves the accuracy of its re

sponses. In one such record, an email from Appellant’s

supervisor Ron Ward, Mr. Ward states that an em

ployee named Ken Kurdziel and an office called AMA900 “is responsible for overseeing the Adacel equip

ment.” See Exhibit 16. The Agency never interviewed

Mr. Kurdziel, anyone in the same capacity as Mr.

Kurdziel, or anyone from AMA-900 in response to

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Appellant’s discovery requests. See Appendix A at 1. As

many of the requests concern information about the

Adacel simulators, the Agency’s responses thereto are

insufficient.

Appellant has provided a compilation of each in

terrogatory and the Agency’s responses thereto in Ap

pendix A. Appellant did not have time to compile a

similar appendix for his requests for production of doc

uments (RPDs) or requests for admission (RFA); how

ever these (as well as the original interrogatories) are

available in Exhibits 3, 4, 5, and 6.

3. The Agency should be compelled to answer

Interrogatory 23, 24, and 25.

On August 22, 2018, the Agency released its first

response to Appellant. At that time, it was never

claimed that Appellant had exceeded his interrogatory

limit of 25 interrogatories. At that time, the Agency

“answered” or objected to all interrogatories. See Ex

hibit 2. The Agency later claimed via electronic letter

that Appellant had asked 27 interrogatories, and that

it no longer needed to answer Interrogatories 24 and

25. Finally, on October 9th, 2018, the Agency released

an “amended” discovery response, claiming Appellant

had asked 28 interrogatories, and that the Agency

need not answer Interrogatories 23, 24, and 25. See

Exhibits 4, 5, and 6.

In its so-called amended responses, the Agency

claimed Interrogatory 9 and Interrogatory 10 were

compound interrogatories containing two and three

80a

subparts each, respectively; however, those interroga

tories merely ask about details about the Agency’s

Performance Assessment (PA) and Technical Review

(TR) programs, which have always existed concur

rently. Appellant disputes the agency’s characteriza

tion that the interrogatories exceed the number

authorized. Appellant notes that the Agency asked him

four compound interrogatories — 13,17,20, and 24 — to

which he never objected. See Exhibit 11.

Because the Agency failed to assert this claim in

its first discovery response, it waived this objection.

Thus, the Board should compel the Agency to answer

them.

4. The Agency should be compelled to produce

information, even if it was produced under

the Freedom of Information Act (FOIA).

The Agency claims it cannot, or will not, produce

documents in response to RPD 10 that were allegedly

released to Appellant under the FOIA. See Exhibits 3,

4, 5, and 6. The ground for this claim is that requiring

the Agency to do so would be unnecessarily duplicative,

onerous, and/or is a vexatious litigation tactic.

The Agency’s argument is not that certain discov

ery requests are duplicative because responsive mate

rial already exists in in the Agency File, or that they

were already provided by Appellant in response to the

Agency’s discovery requests. The Agency’s argument is

that it does not need to produce certain items in dis

covery because Appellant allegedly already obtained

81a

them under FOIA; however, whether the Agency has

complied with FOIA is not the case at bar.

The Agency has not pointed to a specific instance

where one of Appellant’s discovery requests duplicated

one of his prior FOIA requests. Appellant does not be

lieve he duplicated any FOIA requests in his requests

for discovery. To the extent that there may be overlap

between FOIA- and discovery-requested information,

alleged compliance with FOIA does not absolve the

agency of its duty to properly respond to discovery re

quests. A common legal framework is not shared be

tween the FOIA and MSPB discovery regulations.

Appellant’s discovery requests are not duplicative

or onerous on the basis of Appellant having allegedly

requested or received the information under FOIA.

Therefore, the Board should find the Agency’s objection

on these grounds to be unacceptable.

5. The Board should find the Agency’s invoking

of “attorney/client privilege” and “attorney

work product” concerning emails that do not

involve any attorney evidence of discovery

non-compliance.

The Agency has invoked “attorney/client privilege”

and “attorney work product” on a number of records

released in response to RFP 13 and RFP 14. Appellant

reiterates that he does not have sufficient time to

examine these productions completely; however, a cur

sory overview of them reveals the following significant

issues.

82a

In RFP 13, the Agency has attempted to redact

an email by Laurie Karnay, evidenced by a redaction

attempt that partially revealed Ms. Karnay’s custom

email signature. See Exhibits 13 and 14. Ms. Karnay is

a Freedom of Information Act Management Analyst

for the Agency. In other words, Ms. Karnay is not an

attorney. This email is therefore not subject to any such

privileges.

In another instance, the Agency claims the same

privileges in full redactions of an email from Wayne

Coley to Ronald Ward, Alethia Futtrell, and Jim

Doskow. At that time, based on information already in

the record, Mr. Coley was the staff manager of the FAA

Academy. Ronald Ward was Appellant’s supervisor.

Alethia Futtrell was Mr. Ward’s supervisor. And Jim

Doskow was AMA-500, responsible for the Air Traffic

Division of the FAA Academy. None of these employees

are attorneys. Thus, there are no privileges which ap

ply here. The emails must be released in full. See Ex

hibit 15.

Based on these very clear misapplications of

attorney/client privilege and attorney work product

privilege, which the Agency is using to prevent Appel

lant from gaining access to information to which he is

lawfully entitled in discovery, Appellant believes it is

likely that most of the emails requested in these RPDs

are not subject to any privileges.

The Board should compel the Agency to release

the records which have no basis for an attomey/client

privilege or attorney work product privilege. In the

83a

alternative, Appellant requests an in-camera review of

those records.

6. The Board should find the Agency’s invoking

of “privacy-protected info” further evidence

of discovery non-compliance to RFPs 3,4,8,9,

and 16.

The Agency has been asked to produce records

that contain the names of individuals who were simi

larly situated as Appellant when he was employed

with the Agency. Many records, such as those re

quested in RFP 4, 8, and 9, were authored by the simi

larly situated individuals themselves. See Exhibits 3,

4, 5, and 6. In response to those requests, the Agency

produced redacted records, basing those redactions

upon “privacy protected info (student identities and

signatures).” The Agency did not invoke the Privacy

Act, nor are such records Privacy Act protected. Per

haps most perplexing about this production is that the

Agency redacted records authored by Appellant that

they have previously released in the Agency File again, citing “privacy.”

In the case of RFP 16, the Agency redacted the

names of trainees on a class scorebook. See Exhibit 17.

The record already demonstrates that one of those

trainees, Madeline Bostic, was not terminated despite

having failed her final evaluations. The Agency con

tends any information about Ms. Bostic is “not helpful”

to the issues in this appeal. See Exhibits 3, 4, 5, and 6.

Whether the records are helpful or harmful to the

84a

Agency’s defense is not relevant. This discovery re

quest is appropriately structured to obtain information

expected to prove that the Agency cannot satisfy its

burdens in this Appeal. See Motion at 16.

Contrast the aforementioned privacy redactions

with the Agency’s release of seemingly every United

States citizen who applied to the Agency’s 2016 Air

Traffic Control Specialist hiring announcement, pro

duced in response to RFP 16. See, e.g., Exhibit 18. A

release of this nature demonstrates that the Agency is

acting arbitrarily in its compliance with Appellant’s

discovery requests.

In another matter, RFP 4, the Agency was asked

to produce copies of feedback submissions from train

ees at the FAA Academy. See Exhibits 3, 4, 5, and 6.

The Agency produced summaries of trainees’ feedback,

which someone at the Agency categorized, but not the

original feedback submissions themselves. This re

sponse, therefore, is incomplete.

The Board should compel the Agency to release

this information.

7. The Board should find Agency’s objections

on the basis of irrelevance evidence of dis

covery non-compliance.

The Agency has objected dozens of times to Appel

lant’s discovery requests on the basis of relevance “to

the issues in this appeal.” See Appendix A; Exhibits 3,

85a

4, 5, and 6. The Board should find these requests to be

unfounded.

In one example, RFP 10, the Agency has objected

to Appellant’s request for “any records concerning the

. . . evaluation of Harold Rutila . . . including] tran

scripts and error logs from the Adacel Tower Simula

tion System.” Appellant has personal knowledge of

two types of records that the Agency has failed to pro

duce - his writing pad, and dozens of flight strips,

which are used in the Tower Simulation System by

trainees to help them keep track of the aircraft in

their training and evaluation scenarios. In RFA 14, the

Agency denies that it destroyed these records. See Ex

hibits 3,4,5, and 6. Nevertheless, the Agency has failed

to provide them, despite that they are clearly respon

sive to RFP 10.

8. The Board should compel the Agency to com

ply with FED. R. CIV. P. 36(A)(4) with respect

to its answers to requests for admission

(RFAs).

Federal Rule of Civil Procedure 36(A)(4) states the

following with respect to answering RFAs: If a matter

is not admitted, the answer must specifically deny it or

state in detail why the answering party cannot truth

fully admit or deny it. A denial must fairly respond to

the substance of the matter; and when good faith re

quires that a party qualify an answer or deny only a

part of a matter, the answer must specify the part ad

mitted and qualify or deny the rest. The answering

86a

party may assert lack of knowledge or information as

a reason for failing to admit or deny only if the party

states that it has made reasonable inquiry and that

the information it knows or can readily obtain is insuf

ficient to enable it to admit or deny.

The Agency has submitted several answers to

RFAs which do not comport to this rule. The Agency’s

responses to RFAs 15 and 17 do not ascertain whether

the Agency made a reasonable inquiry, or that the in

formation it knows or can readily obtain is insufficient

to enable it to admit or deny.

AGENCY MUST BE COMPELLED TO SUBMIT

DISCOVERY RESPONSES THAT CONFORM

TO CONVENTIONAL DISCOVERY RULES

1. The importance of signed interrogatory re

sponses cannot be understated.

The Agency has submitted discovery responses

that are not only unsigned, but also which do not iden

tify the agency official and/or agent making them, nor

assert under oath or affirmation that the responses are

even correct. A substantial amount of evidence exists

that confirms many of the Agency’s responses are inac

curate and incomplete. See Motion at 9,10.

The Agency should be compelled to submit inter

rogatory answers that are signed under oath or affir

mation. Federal Rule of Civil Procedure 33(b) requires

that written answers to interrogatories must be

made under oath and signed by the person making

them. These rules represent conventional thought on

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acceptable procedures. 5 C.F.R. § 1201.72(a); see also

Special Counsel v. Zimmerman, 36 M.S.P.R. 274, 285

n.7 (1988).

Rule 602 of the Federal Rules of Evidence requires

“A witness may testify to a matter only if evidence is

introduced sufficient to support a finding that the

witness has personal knowledge of the matter.” The

Board has previously taken notice when parties failed

to comply with this rule when analyzing interrogatory

responses as evidence. See, e.g., Matson v. Office of

Personnel Management, 105 M. S.RR. 547 at 7. Fur

thermore, the MSPB Judges’ Handbook states that

interrogatories must be answered in writing under

oath or affirmation. Id. at 35 (emphasis added).

The Agency’s first discovery response admits that

Agency’s counsel Mr. Armendariz authored the re

sponses based on “substantive information” from but

four Agency officials. See Appendix A at 1. Subsequent

“amended” responses from the Agency are not substan

tially different. However, neither Mr. Armendariz nor

Ms. Putnam has personal knowledge of any of the

events in Appellant’s Appeal. Mr. Armendariz’s recol

lection and recital of this “substantive information”

from these officials is classic hearsay and, therefore,

inadmissible. See Fed. R. Evid. 602. See also Fed. R.

Evid. Aet. Viii. This will not, however, waive Appel

lant’s ability to use the information provided against

the Agency in future proceedings before the Board.

Appellant’s interrogatories require a response

from an officer or agent of the Agency - not just a

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summary or boilerplate objection by Agency’s counsel.

The interrogatories are specifically targeted to garner

information relevant to the case in order that it is re

solved on the merits. Responses must be provided by

Agency officials who have personal knowledge of the

matter. See Fed. R. Evid. 602.

When Appellant asked the Agency to conform to

these rules, the Agency’s counsellors incorrectly ar

gued that the Board’s discovery rules do not require

any officers or agents to sign interrogatories. This re

quest of Appellant is neither unreasonable nor unu

sual. Information concerning who signed discovery

responses is important, as it will allow Appellant and

the Board to ascertain credibility of respondents and

the information they provide. Names of respondents

with their signatures will allow for a determination on

response admissibility.

2. The need for signed interrogatory responses

is demonstrated by examining the Agency’s

unsigned discovery responses against offi

cials’ prior statements under oath.

The problem of the Agency’s non-conformity to

normal discovery rules is evident throughout its dis

covery productions. In several instances, the Agency’s

answers to the requests contain statements that bla

tantly contradict information from other sources.

The Agency claims employee Ronald Ward pro

vided “substantive” and “factual” information in re

sponse to Appellant’s discovery requests. See Appendix

89a

A at 1. It is therefore worth comparing the Agency’s

unsworn responses to RFA 10 and RFA 14 against

Mr. Ward’s sworn affidavit from July 7th, 2017, which

he submitted in support of the Agency’s defense in

Appellant’s concurrent EEO case. See Exhibits 3, 4, 5,

and 6. There is perhaps no clearer evidence of the

Agency’s discovery inadequacies than this:

RFA 10: Admit that the voice recognition

system of the TSS malfunctioned during Mr.

Rutila’s third evaluation, which the evaluator

did not take proper action to correct.

Agency’s Response; Denied.

RFA 14: Admit that an aircraft conducted

an extra 360 degree turn without permission

during Mr. Rutila’s third evaluation.

Agency’s Response: Denied.

Affidavit of Ronald Ward. EEO Com

plaint 2016-26956-FAA-05. July 7th. 20171:

Research indicates that during the last couple

of minutes of the scenario an aircraft. . . did

make two additional 360 degree turns af

ter Mr. Rutila had instructed it to make

one 360 turn. As the PA documentation re

flects, these extra turns caused no negative

points for the employee in training, no other

1 This declaration was made “under penalty of perjury that

the foregoing statement is true, correct, and complete to the best

of [Mr. Ward’s] knowledge and belief.” Exhibit 7. Although Appel

lant disputes the agency’s discovery responses, Appellant re

serves the right to use responses received thus far, regardless if

later deemed inadequate, in support of his case and for challeng

ing the Agency’s credibility.

90a

aircraft were impacted, and it caused no addi

tional workload to Mr. Rutila.

Exhibit 7 at 2 (emphasis added).

Respecting RFA 10, if Appellant instructed an air

craft to make one 360-degree turn, and it instead

made three 360-degree turns - the one Appellant in

structed, plus two additional 360s - then this is a de

facto malfunction of the Tower Simulation System

(TSS). It is simply unacceptable for aircraft in this con

text to make random 360s at will2. Mr. Ward’s sworn

affidavit proves an aircraft in Appellant’s evaluation

did just that - two times!

Furthermore, Mr. Ward’s sworn affidavit verifies

the existence of evidence that allowed him to con

duct purported “research” that displayed the actions of

an aircraft in Appellant’s evaluation. However, no such

evidence describing the actions of any aircraft has

been produced to Appellant, despite that he requested

it. Any records, or the lack thereof, will impact Appel

lant’s case. His aforementioned evaluation is a central

issue to the case. Even if evidence the Agency pos

sesses is exculpatory or adverse to the Agency, it still

must be produced. With respect to the existence of

2 The Agency’s own Aeronautical Information Manual de

scribes with precision the negative consequences of unexpected

360s: “If a pilot makes a 360 degree turn after obtaining a landing

sequence, the result is usually a gap in the landing interval and,

more importantly, it causes a chain reaction which may

result in a conflict with following traffic and an interrup

tion of the sequence established by the tower ... control

ler.” Id. at 4-3-5. (Emphasis added).

91a

records, Mr. Ward’s affidavit contradicts additional dis

covery responses:

RPD 10:

Produce any records concerning the May 24,

2016 evaluation of Harold Rutila and Andrew

Koski, which was administered by Michael

Taylor, Dan Henderson, Sandra Laminack,

and another unidentified remote pilot opera

tor (RPO). This request includes transcripts

and error logs from the Adacel Tower Simula

tion System.

Excerpt of Agency’s Response to RPD 10;

. .. Objection on the basis, also, that there are

no such responsive documents (i.e. transcripts

and error logs) because the data that the

Agency produced is not a “record” and is not

stored in a format that can be preserved. The

records that appellant is requesting ac

tually do not exist in their original for

mat - there is no system of “records” for

storing the PA Evaluations at the Academy.

The simulators have data bits from the PAs,

but they (sic) information begins to break

down and degenerate due to so many trainees

using the simulators. .. . (emphasis added)

The Agency’s response is improper, because Mr.

Ward’s affidavit proves he accessed records about Ap

pellant’s evaluation that reflected the actions of air

craft therein. Such actions could have only been

observed in-person by attentive individuals during Ap

pellant’s evaluation in the Tower Simulation System

(TSS), and can only be re-observed through some sort

92a

of recreation of that evaluation. The records the

Agency has produced do not suffice for making the

determinations Mr. Ward made, as he detailed in his

sworn affidavit.

Prior to the date of this affidavit, Mr. Ward’s offi

cial position respecting what happened during Appel

lant’s evaluation was asserted on Appellant’s technical

review (TR) final decision worksheet, and via email to

other FAA officials. They were as follows:

After talking with the Evaluator we deter

mined that: The evaluator was looking at the

RPO’s monitor and knew exactly where the

aircraft in question was located.

Exhibit 8.

The computer processed all information cor

rectly and moved the aircraft exactly as

Mr. Rutila directed. Mr. Taylor informed

Mr. Rutila of this fact during the debrief.

Exhibit 9 (emphasis added).

Whatever information Mr. Ward used to conduct

his “research” for his July 2017 sworn affidavit, ap

proximately one year after he stated the entirely op

posite belief as a basis for terminating Appellant, is

responsive to this request.

This evidence clearly also allowed Mr. Ward to

determine the results of those aircraft’s actions on

other aircraft. For example, Mr. Ward asserts “no other

aircraft were impacted, and (the extra 360s) caused no

additional workload to Mr. Rutila.” Id. The documenta

tion that the Agency has produced from Appellant’s

93a

evaluation, thus far, does not reflect, recreate, or pro

vide a transcription of the events in that scenario.

Whether or not the Agency believes the infor

mation constitutes a record, or can be “stored in a for

mat that can be preserved” is materially irrelevant

to the discovery request. If Mr. Ward can conduct re

search on the information, as he himself swears he did,

then the information is subject to discovery. The Board

should compel its release.

The foregoing examples are but a few of the total

ity of the responses which the Board could expect

would be drastically altered if the Agency were com

pelled to have Agency officials and/or agents answer

Appellant’s discovery requests under oath or affirma

tion. This notwithstanding, the Board should compel

the Agency to answer Appellant’s discovery requests

under oath or affirmation because this is a mainstream

discovery requirement.

APPETJ .ANT’S DISCOVERY IS SPECIFICALLY

TARGETED TO T.EAD TO THE DISCOVERY

OF ADMISSABLE EVIDENCE

1. Appellant’s requests are structured to obtain

relevant evidence respecting the burden of

the parties in this Appeal.

The Agency has objected to Appellant’s discovery

requests numerous times on the basis that Appellant’s

requests are not specifically targeted to lead to the

discovery of admissible evidence. These objections

are improper. A cursory overview of the interrogatory

94a

requests, in the context of the parties’ respective bur

dens before the Board, reveals not only that the re

quests are relevant to the Appeal, but are also properly

and specifically targeted to lead to the discovery of ad

missible evidence.

Appellant has already succeeded in asserting the

Board’s jurisdiction over his Appeal. At the request of

the Board, the parties and the Board convened via tel

econference on June 28th, 2018, where Judge Styles

informed the parties that she found the Appellant to

have established the Board’s jurisdiction over his Ap

peal. One basis of Appellant’s jurisdictional argument

was his belief that he had made a protected disclosure

as defined by 5 U.S.C. § 2302(A)(2)(D). See Dkt. 13 at 5.

The Board has jurisdiction over an IRA appeal if

the appellant has exhausted the administrative reme

dies before OSC and makes nonfrivolous allegations of

facts that, if proven, could show that: (1) the appellant

engaged in whistleblowing activity by making a pro

tected disclosure; and (2) the disclosure was a contrib

uting factor in the agency’s decision to take or fail to

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

action. Yunus v. Department of Veterans Affairs, 242

F.3d 1367,1371 (Fed. Cir. 2001)\Mudd u. Department

of Veterans Affairs, 120 M.S.P.R. 365 % 4 (2013). The

jurisdiction issues have now been resolved, and the

agency did not appeal the decision.

95a

a. The Agency has a burden to prove Appel

lant would have been terminated regard

less of his filing of a protected disclosure.

To establish a prima facie claim of whistleblower

reprisal, 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 pro

tected disclosure. Bearing this in mind, the Appellant

asked the following questions of the Agency. See Ap

pendix A; Exhibits 3, 4, 5, and 6.

i. Interrogatories 16 and 21

ii. Request for Production of Documents 1,2, 3,12,

13,14,15,16,17,18,19, 20, 27

iii. Requests for Admission 1, 2, 3, 4,17

b. There are different types of “protected

disclosures.” Appellant has consistently

argued that his evidenced a violation of an

Agency rule, gross mismanagement, gross

waste of funds, and an abuse of authority.

i. Gross Mismanagement

Gross mismanagement means a management

action or inaction which creates a substantial

risk of significant adverse impact upon the

agency’s ability to accomplish its mission. White v.

Department of the Air Force, 63 M.S.P.R. 90, 95

(1994).

Appellant asked the Agency to produce infor

mation about whether FAA Academy evaluator

Michael Taylor suffered from a hearing

96a

impairment, an allegation which was originally af

firmed by an Agency representative during Appel

lant’s concurrent EEO investigation. If Mr. Taylor

did suffer from a hearing impairment, it would ex

plain why Appellant believes he failed to hear cru

cial details that affected the scoring of Appellant’s

evaluation. It would significantly alter the course

of this case.

In seeking information about the impact of

the FAA Academy’s then-new evaluation pro

grams, to which Appellant was subject while he

was employed there, Appellant asked for basic

background information about the Performance

Assessment (PA) program and Technical Review

(TR) program, including who was responsible for

developing them. Appellant asked for information

about whether the Agency believes it provides

trainees with a reasonable opportunity to demon

strate improvement following one bad score on a

PA3. Appellant also sought copies of complaints

about the level of knowledge of FAA Academy

graduates by training representatives in the field

(i.e. in facilities where academy graduates work)

both before and after these changes took place. Fi

nally, Appellant asked the Agency what the PA

and TR programs were intended to do that the pro

grams the Agency used until 2014 did not do.

Furthermore, Appellant asked whether the

Agency had ever validated the PA and TR

3 This is a relevant question because Appellant himself was

terminated after a singular evaluation score, with no prior history

of poor performance, and with no reasonable opportunity to re

cover his score.

97a

programs. Appellant asked for a detailed explana

tion as to how PAs and graded, and how TRs are

administered. Finally, Appellant asked for infor

mation about how FAA Academy training courses

are designed and certified. All of this information

conforms to the Board’s standards for federal gov

ernment training and evaluation programs, which

is detailed in the Board’s 2014 report to the pres

ident and Congress entitled “Evaluating Job Ap

plicants: The Role of Training and Experience in

Hiring.” See id. at 574.

ii. Gross Waste of Funds

A gross waste of funds is defined as a morethan-debatable expenditure that is significantly

out of proportion to the benefit reasonably ex

pected to accrue to the government. Van Ee v.

E.P.A., 64 M.S.P.R. 693,698 (1994) (quoting Nafus

v. Department of the Army, 57 M.S.P.R. 386, 393

(1993)). In seeking information which could point

to a gross waste of funds, Appellant asked the

Agency to produce the names of the personnel or

work group who worked to eliminate the previ

ously-existing option for FAA Academy trainees to

re-take a failed assessment prior to being outright

terminated. He also requested the Agency to iden

tify the personnel who implemented the practice

of drafting and signing a termination letter for

every FAA Academy trainee prior to the existence

of any apparent need to terminate them. The Agency

makes its tuition costs for FAA Academy classes

publicly available online. At an approximate cost

4 https://www.mspb.gov/studies/browsestudies.htm

98a

of $30,000 per trainee in fiscal year 2013 (not

counting the trainees’ basic training, salary, and

per diem), terminating a trainee in the circum

stances like Appellant’s is more than likely a gross

waste of funds. See Exhibit 12.

iii. Abuse of Authority

Abuse of authority occurs when there is an ar

bitrary or capricious exercise of power by a federal

official or employee that adversely affects the

rights of any person, or that results in personal

gain or advantage to himself or to preferred other

persons. Wheeler v. Department of Veterans Affairs,

88 M.S.P.R. 236 f 13 (2001).

With respect to an arbitrary or capricious ex

ercise of power by a federal official or employee

that adversely affects the rights of any person,

Appellant asked the Agency to produce the grad

ing criteria for performance assessments (PAs)

and the review criteria for technical reviews (TRs).

The Agency’s Order JO 3000.22 requires the

Agency to have an inter-rater agreement in order

to conduct graded performance evaluations. See

Exhibit 10. The Agency has not produced one.

With respect to the latter portion,"... or that

results in personal gain or advantage to himself or

to preferred other persons, ...” Appellant asked

the Agency to produce information about other

trainees who failed their FAA Academy training

but were nevertheless reinstated5. Appellant also

6 Appellant once again cites the case of Madeline Bostic, a

similarly situated trainee who was in fact terminated for failing

99a

asked for records concerning another evaluation of

two of Appellant’s co-trainees for whom evaluators

Michael Taylor and Dan Henderson were said to

have intervened to rectify simulator issues that

arose in their evaluation. Finally, Appellant asked

the Agency to produce information concerning

quotas for FAA Academy pass and failure rates.

If Appellant makes a primae facie case

of whistleblower reprisal, then the

Agency bears additional burdens.

The Agency will be given an oppor

tunity to prove by clear and con

vincing evidence that it would have

taken the same personnel action in

the absence of the protected disclo

sure. 5 U.S.C. § 1221(e)(2); Jenkins,

118 M.S.P.R. 161 16.

In determining whether an agency

has shown by clear and convincing evi

dence that it would have taken the

same personnel action in the absence of

whistleblowing, 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

agency officials who were involved in

a performance assessment, just like Appellant. The record

demonstrates Ms. Bostic’s termination, and that she was subse

quently reinstated, restarting all of her FAA Academy training

from October 2016 to December 2016.

100a

the decision; and (3) any evidence that

the agency takes similar actions against

employees who are not whistleblowers

but who are otherwise similarly situ

ated. Carr v. Social Security Admin

istration, 185 F.3d 1318, 1323 (Fed. Cir.

1999);Mattil v. Department of State, 118

M. S.P.R. 662, 669-70, ff 11-12 (2012).

Specifically, with respect to number

(3), Appellant asked the Agency to pro

duce information about the actions

taken to reinstate and retrain FAA

Academy trainee Madeline Bostic after

she failed to pass her first evaluation in

May 2016, as well as similar actions it

has taken to reinstate and retrain other

individuals who worked at the FAA

Academy in the same capacity as Appel

lant and Ms. Bostic. To demonstrate

whether those individuals filed pro

tected disclosures, Appellant asked for

the (a) the feedback reports for Appel

lant’s class as well as those classes im

mediately before and after his class; (b)

any complaints filed against the FAA

Academy evaluators for a 5-year period

of time; and (c) technical reviews (TRs)

filed in Ms. Bostic’s class, several classes

thereafter, and TRs that pertained to

Appellant’s evaluators Michael Taylor

and Dan Henderson.

101a

APPELLANT IS PREJUDICED BY

AGENCY’S DISCOVERY NON-COMPLIANCE

AND THE CURRENT SCHEDULE OF

PROCEEDINGS IN THIS APPEAL

Appellant is severely prejudiced by the Agency’s

non-compliance with his discovery requests. As Appel

lant has demonstrated herein, he has submitted to the

Agency discovery requests which are not only relevant

to the Appeal, but are also properly structured so as

to obtain information that is expected to support or

disprove the parties’ burdens before the Board.

Appellant must also respectfully point out that he

is prejudiced by the Board’s requirement that he file

this Motion only a few days after the Agency submitted

its final discovery productions, with the added pres

sure of having to file pre-hearing submissions on the

same day, and prepare for a hearing that is currently

scheduled five days from today. Appellant believes it

is unreasonable for him to be able to thoroughly exam

ine all of the Agency’s discovery responses, to prepare

this Motion, and to prepare his prehearing submis

sions within the same period of time. The Agency had

months to prepare what it has submitted to Appellant,

but Appellant had had only days to prepare his re

sponse to and issues with those productions, while

simultaneously preparing for a hearing. Therefore, in

the event the Board finds at a later date that this Mo

tion does not sufficiently contest a particular Agency

response or objection that Appellant believes the

Agency should be compelled to answer, Appellant re

spectfully requests that he be provided an opportunity

102a

to further justify those issues prior to the Board issu

ing a discovery ruling that disfavors him.

Appellant has made his best, good-faith effort to

compile this Motion, highlighting the key issues with

the Agency’s discovery productions, averring that there

may be other specific deficiencies that he may need to

address with the Board at a later time.

Respectfully submitted,

I declare under penalty of perjury under the laws of

the United States of America that the foregoing is true

and correct.

Executed on

October 24, 2018

s/ Harold Edward Rutila IV

Harold Edward Rutila IV

12498 Woodhull Lndg

Fenton, MI 48430

(810) 845-3497

I hereby certify that I have submitted this document

through the MSPB e-Appeal system and all Parties of

record have received a copy electronically.

s/ Harold Edward Rutila IV

Harold Edward Rutila IV

12498 Woodhull Lndg

Fenton, MI 48430

(810) 845-3497

103a

LOGO]

MERIT SYSTEM PROTECTION BOARD

Appeal Form-Appellant and Agency Information

Please type or print legibly.

OMB No. 3124-0009

Name (last, first, middle initial)

Rutila IV, Harold, E.

Present Address (number and street, city, state,

and zip code)

12498 Woodhull LNDG

Address:

City, State, Zip Code: Fenton, Michigan, 48430,

United States of America

Telephone numbers (include area code)

and E-Mail Address

You must notify the Board in writing of any

change in your telephone number(s) or e-mail

address while your appeal is pending.

Work:

Home: (810) 845-3497

Cell:

Fax:

E-mail Address: h.rutila@gmail.com

Other Phone Type:

Do you wish to designate an individual or organi

zation to represent you in this proceeding before

the Board? (You may designate a representative

at any time. However, the processing of your

appeal will not normally be delayed because of

any difficulty you may have in obtaining a

representative.)

0 No

□ Yes

104a

Name, address, and telephone number of the

agency that took the action or made the decisions

you are appealing (include bureau or division,

street address, city, State and Zip code)

Agency Name: Department of Transportation

Federal Aviation Administration

Bureau:

800 Independence Ave SW

Address:

City, State, Zip

Washington, District of

code:

Columbia, 20591,

United States of America

Agency Phone: (866) 835-5322

6. Your Federal employment status at the time of

the decision or action you are appealing:

0 Temporary □ Permanent □ Applicant

□ Term □ Retired □ Seasonal □ None

7. Type of appointment (if applicable)

□ Competitive □ SES 0 Excepted

□ Postal Service □ Other

8. Your occupational series, position title, grade, and

duty station at the time of the decision or action

you are appealing (if applicable):

Occupational Series 2152

Position Title: Air Traffic Control or Cluster:

Duty Station: Washington, D.C.

Grade or Pay Band: FG-01

Are you entitled to veterans’ preference?

See 5 U.S.. 2108.

□ Yes 0 No

105a

10. Length of Government Service (if applicable)

Years 3 Months

11. Were you serving a probationary, trial, or initial

service period at the time of the action or deci

sion you are appealing?

0 Yes □ No

HEARING: You may have a right to a hearing

before an administrative judge. If you elect not

to have a hearing, the administrative judge

will make a decision on the basis of the sub

missions of the parties.

12. Do you want a hearing? 0 Yes □ No

E-Filing: Registration as an e-filer enables you

to file any or all of your pleadings with the

Board in electronic form. Registration also

means you consent to accept service of all

pleadings filed by other registered e-filers and

all documents issued by the Board in elec

tronic form. You will receive these as PDF

documents at the e-mail address you provided

the Board. If registered as an e-filer, you may

file any pleading, or portion of a pleading, by

non-electronic means. You can withdraw your

registration as an e-filer at any time.

13. Do you wish to register as an E-Filer in this ap

peal? 0 I elect to E-File □ I decline to E-File

106a

L4. I certify that all of the statements made in

this form and all attached forms are true,

complete, and correct to 0 the best of my

knowledge and belief.

Harold E. Rutila IV, Appellant Date:

Complete this form and attach it to MSPB

Form 185-1 if you are appealing an agency per

sonnel action or decision (other than a deci

sion or action affecting your retirement rights

or benefits) that is appealable to the Board un

der a law, rule, or regulation. If the personnel

See 5 CFR 1201.3(a) for a list of appealable per

sonnel actions and action or decision is ap

pealable to the Board, you should have

received a final decision letter from the agency

that informs you of your right to file an appeal

with the Board.

Please type or print legibly.

OMB No. 3124-0009

Please submit only the attachments requested

in this form at this time. You will be afforded the

opportunity to submit detailed evidence in support

of your appeal later in the proceeding.

Name (last, first, middle initial) Rutila IV, Harold, E.

1. Check the box that best describes the personnel

action or decision taken by the agency you named

in MSPB Form 185-1 that you are appealing. (If

you are appealing more than one action or deci

sion, check each box applies.)

□ Veterans Administration Senior Executive

Service Removal from civil service

___

107a

□ Veterans Administration Senior Executive

Service Transfer to general schedule

□ Removal (Termination after completion

of probationary or initial service period)

□ Involuntary Resignation

□ Termination during probationary or initial

service period

□ Involuntary Retirement

□ Reduction in grade or pay

□ Suspension for more than 14 days

□ Separation, demotion, or furlough for more

than 30 days by reduction in force (RIF)

□ Furlough of 30 days or less

□ Denial of within-grade increase

0 Failure to restore/reemploy/reinstate or im

proper restoration/reemployment/reinstatement

□ Negative suitability determination

□ Other action or decision (describe):

2. Date you received the agency’s final decision let

ter (if any)

05/25/2026

3. Effective date (if any) of the agency action or

decision (month, day, year)

05/25/2016

Prior to filing this appeal, did you and the agency

mutually agree in writing to try to resolve the

matter through an alternative dispute resolution

(ADR) process?

□ Yes 0 No

108a

Explain briefly why you think the agency was

wrong in taking this action. In challenging such

an action, you may choose to allege that the

agency engaged in harmful procedural error,

committed a prohibited personnel practice, or en

gaged in one of the other claims listed in Appen

dix A.

Attach the agency’s proposal letter, decision let

ter, and SF-50, if available.

See Continuation Sheet for Response.

With respect to the agency personnel action or

decision you are appealing, have you, or has an

yone on your behalf, filed a grievance under a

negotiated grievance procedure provide by a col

lective bargaining agreement?

□ Yes 0 No

If your answer to question 6 is “Yes,” on what

date was the grievance filed (month, day, year)?

NOT APPLICABLE

If your answer to question 6 was, “yes,” has a de

cision on the grievance been issued?

NOT APPLICABLE

Did you file a whistleblowing complaint with the

Office of Special Counsel (OSC)?

□ Yes 0 No

If your answert to question 9 was ‘Yes”, the date

on which you filed complaint with OSC:

06/30/2016

109a

10. Have you received written notice that the Office

of Special Counsel made a decision or terminated

its investigation?

□ Yes 0 No

If your answert to question 10 was “Yes”, the date

on which OSC made a decision ore terminated its

investigation:

01/29/2018

11. Did you filed a complaint on this matter with the

Department of Labor (DOL)?

□ Yes 0 No

12. Has the Department of Labor notified you that

your USERRA or VEOA complaint could not be

resolved?

NOT APPLICABLE

Continuation Sheet

5. Explain briefly why you think the agency was

wrong in taking this action. In challenging such an ac

tion, you may choose to allege that the agency engaged

in harmful procedural error, committed a prohibited

personnel practice, or engaged in one of the other

claims listed in Appendix A. Attach the agency’s pro

posal letter, decision letter, and SF-50, if available.

The FAA committed harmful procedural errors, as

well as a prohibited personnel practice against me in

the form of retaliation for protected activity under 5

U.S.C. § 2302 (b)(9)(A)00. On May 23rd, 20161 was

evaluated by FAA Academy evaluator Dan Henderson.

Henderson erred in his grading of my evaluation,

which I appealed via the FAA Academy Technical Review process. On May 24th, 2016, after the appeal was

110a

decided in my favor, Henderson was permitted to have

influence over my outcome at the FAA Academy when

he was assigned as my evaluator again. It was here

where Henderson and another evaluator issued me a

score of 15%, which caused me to be terminated from

the FAA. FAA supervisors failed to consider several

appeals I filed in contest of the 15% score and were

complicit in the behavior of its evaluators.

The FAA also committed harmful procedural errors

when its evaluators failed to correct well-documented

discrepancies with the simulator where my evaluation

was administered. Simulation errors caused numer

ous problems that the evaluators used as a basis for

issuing me a 15%.

Finally, the FAA committed unlawful discrimination

when it failed to reinstate me following these events

after it did so for a similarly-situated female trainee

who underwent similar issues in May 2016.

111a

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WASHINGTON REGIONAL OFFICE

HAROLD E. RUTILA, IV,

Appellant,

DOCKET NUMBER

DC-1221-18-0474-W-1

DEPARTMENT OF

TRANSPORTATION,

Agency.

DATE: October 26, 2018

ORDER CLOSING THE RECORD

Because the appellant has withdrawn his request

for a hearing, the record in this appeal will close on

November 16.2018. All evidence and argument must

be filed by that date. Evidence and related argument

filed after that date will not be accepted unless the

party submitting the evidence shows that it is new and

material evidence that was not available before the

record closed. Notwithstanding the close of the record,

however, pursuant to 5 C.F.R. § 1201.59(c), a party

must be allowed to respond to new evidence or argu

ment submitted by the other party just before the close

of the record.

Initial briefs must be electronically filed by

the parties by November 9.2018.

FOR THE BOARD:

/S/

Kasandra Robinson Styles

Administrative Judge

112a

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WASHINGTON REGIONAL OFFICE

HAROLD E. RUTILA, IV,

Appellant,

DOCKET NUMBER

DC-1221-18-0474-W-l

DEPARTMENT OF

TRANSPORTATION,

Agency.

DATE: October 15, 2018

ORDER RESCHEDULING

Pursuant to the agency’s unopposed request, I

have RESCHEDULED the parties’ prehearing sub

mission due date to October 22, 2018, and the tele

phonic prehearing conference to October 24, 2018, at

1:00 p.m. To connect to the call the parties MUST dial

1-800-793-9878 and use participant code 1234107.

FOR THE BOARD:

/S/

Kasandra Robinson Styles

Administrative Judge

113a

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WASHINGTON REGIONAL OFFICE

HAROLD E. RUTILA, IV,

Appellant,

DOCKET NUMBER

DC-1221-18-0474-W-l

DEPARTMENT OF

TRANSPORTATION,

Agency.

DATE: October 10, 2018

ORDER GRANTING AGENCY’S REQUEST

FOR EXTENSION OF TIME

Per written request dated October 5, 2018, the

agency requested an extension of time to file prehear

ing submissions and it requested to reschedule the prehearing conference date. I find that good cause exists

for an extension of time. Consequently, the agency’s

request for an extension is granted, and accordingly,

the parties’ prehearing submissions must be filed by

October 22. 2018. The telephonic prehearing confer

ence is RESCHEDULED to October 24. 2018. at

1:00 p.m. To connect to the call the parties MUST dial

1-800-793-9878 and use participant code 1234107.

FOR THE BOARD:

/S/

Kasandra Robinson Styles

Administrative Judge

114a

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WASHINGTON REGIONAL OFFICE

HAROLD E. RUTILA, IV,

Appellant,

DOCKET NUMBER

DC-1221-18-0474-W-l

DEPARTMENT OF

TRANSPORTATION,

Agency.

DATE: August 27, 2018

ORDER

Pursuant to the agency’s request, the hearing in

the captioned appeal is RESCHEDULED from Sep

tember 17. 2018. to October 29. 2018. at 09:00 a.m.

As previously noted, some witnesses will appear

via video conference, while at least one party

will appear at the Board’s Washington Regional

Office. Additionally, the prehearing submission

due date has been RESCHEDULED on October

15.2018. and the prehearing conference has been

RESCHEDULED to October 15. 2019. at 10:00

a.m.. to permit the parties an opportunity to re

solve outstanding discovery issues.

FOR THE BOARD:

/S/

Kasandra Robinson Styles

Administrative Judge

115a

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WASHINGTON REGIONAL OFFICE

HAROLD E. RUTILA, IV,

APPELLANT,

U.S. DEPARTMENT OF

TRANSPORTATION,

AGENCY.

)

Docket No.

DC-1221-18-0474-W-1

) Date: November 9,2018

)

Honorable Judge:

Kasandra Robinson

Styles

AGENCY’S INITIAL BRIEF

INTRODUCTION

During the party’s status conference on October

26, 2018, Judge Styles ruled that Appellant’s IRA

would be evaluated under 5 U.S.C. § 2302(b)(9)(A). In

her Summary Of Telephonic Status Conference Order,

issued on October 26, 2018, Judge Styles stated Ap

pellant was required to establish, by preponderant

evidence, that his termination was reprisal for his en

gagement in protected activity. That is, Appellant must

establish that: (1) he engaged in protected activity de

scribed under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D);

and the (2) protected activity was a contributing factor

in the Agency’s decision to take or fail to take a person

nel action as defined by 5 U.S.C. § 2302(a). See 5 U.S.C.

§ 1221(e)(1); Webb v. Department of the Interior, 122

M.S.P.R. 248, f 6 (2015).

116a

Under 5 U.S.C. § 2302(b)(9)(A)(i), it is unlawful

to take any personnel action (such as termination)

against an employee because of his or her exercise of

any appeal,

Agency followed a standard process to remove him for

failing the training course and not because the Agency

acted with retaliatory animus. Appellant’s continued

employment as an Air Traffic Control Specialist was

contingent upon “successful progression” in the Na

tional Training Program. Appellant’s TR filed on May

23, 2016 was not a contributing factor in the Agency’s

decision to terminate his training and temporary em

ployment.

3. EVEN IF APPET J,ANT ENGAGED IN A PRO

TECTED ACTIVITY. THE AGENCY WOULD HAVE

TAKEN THE SAME PERSONNEL ACTION.

Assuming Appellant has shown, by preponderant

evidence, that he engaged in a protected activity that

was a contributing factor in the decision to take a per

sonnel action, the Agency still would have terminated

him even if Appellant had not filed a TR on May 23,

2016.. 5 U.S.C. § 1221(e)(1), (2); Caddell v. Department

of Justice, 66 M.S.P.R. 347,351 (1995).

In determining whether the Agency has shown by

clear and convincing evidence that it would have taken

the same personnel action in the absence of whistle

blowing, courts will employ a CARR factor analysis;

(a) the strength of the agency’s evidence in support of

117a

its personnel action; (b) the existence and strength of

any motive to retaliate on the part of the agency offi

cials who were involved in the decision and (c) any ev

idence that the agency takes similar actions against

employees who are not whistleblowers but who are

otherwise similarly situated.

(a) The strength of the agency’s evidence

in support of its personnel action.

Appellant cannot accept that the Agency removed

him from further consideration due to his low perfor

mance on his third evaluation. Instead, Appellant re

lies on a misguided concept that the Agency retaliated

against him for having participated in the TR process.

The record is clear regarding Appellant’s low grade.

See Exhibit 6, Appellant’s Tower Cab Performance As

sessment (Local Control) dated May 24, 2016. During

his training, Appellant received four 100s that were

valued only 1% of his total grade; a 96.24 valued at

only 5%; 85 valued at 15%; two 30% valued scores, one

79 and a 15. See Exhibit 7, Student Progress Report.

Appellant needed 19.36 final points to pass the entire

training course, but the fourth and final evaluation

was worth only 15 points. Appellant then was mathe

matically eliminated based on 4.36 points.

Appellant’s third evaluation was a life case sce

nario of a normal air traffic control setting that was

both difficult and compounding. Appellant misguided

an airplane and mishandled the situation within other

airplanes in the vicinity, which led to multiple point

118a

deductions. In his Summary Of Findings, Mr. Ward

wrote the following details regarding Appellant’s As

sessment forms and work sheets:

“I have reviewed all of our documentation re

garding Mr. Rutila’s’ second {third) Perfor

mance Assessment run on Local Ground.

Based on the written documentation, I can

say that Mr. Rutila’s run was in trouble al

most from the very beginning. With the very

first two IFR departures, Mr. Rutila failed to

provide proper IFR separation, resulting in

his only sixteen (16) point error. The third IFR

departure sat at the approach end for over

eight minutes waiting to depart and should

have resulted in a five point “Delay” error

which the evaluator documented on the work

sheet but not did not document on the grade

form. The aircraft that Mr. Rutila claims de

parted the airspace and then returned was ac

tually a VFR inbound from the southwest

requesting two “touch and go’s” followed by a

full stop landing. Mr. Rutila worked this air

craft (N9726Z) into a pattern for runway 28L,

but had to send the aircraft around to avoid

another aircraft Mr. Rutila had cleared for

takeoff from the same runways. I don’t know

what Mr. Rutila intended to do with N9726Z

after that, but I do know that the computer

accurately followed all of his instructions with

regard to this aircraft ...” See Exhibit 8, Mr.

Ward’s Summary of Findings.

119a

(b) The existence and strength of any mo

tive to retaliate on the part of the agency

officials who were involved in the deci

sion.

The intent of the TR process is to offer impartiality

and objectivity in the grading process. Hundreds of

trainees have used this forum to contest a grade. This

was the case with Appellant. He utilized a method

solely intended to dispute his grade on all of his evalu

ations. Once references were cited on Appellant’s first

TR, Mr. MacNeill and Mr. Ward awarded Appellant one

point, but no points were justified on his subsequent

TRs. The TR instructions also provide guidance on

trainees who have been “mathematically eliminated”.

Therefore, failing the course is a normal procedure for

removal and there was no retaliatory animus against

Appellant for using a practice that is highly supported

by the Agency and utilized by hundreds of trainees. In

addition, the Agency highly contends that Appellant’s

first evaluator, Mr. Henderson, was not aware of Appel

lant’s TR. The TR does not indicate that Agency man

agers Mr. MacNeill and Mr. Ward consulted with Mr.

Henderson. See Exhibit 9, Declaration of Dan Hender

son. Nevertheless, Appellant can only assume that be

cause he received a low grade, Mr. Henderson, who was

in the same room monitoring another student’s evalu

ation, must have influenced his evaluator, Mr. Taylor.

But Appellant has presented no actual evidence to

show Mr. Henderson actually performed Appellant’s

third evaluation or how he influenced Mr. Taylor.

Mr. Henderson might have assisted Mr. Taylor in

120a

discussing point deductions, but this was allowed per

the grading guidelines, and the record shows Mr.

Taylor was the sole grader. Appellant also claims that

Mr. Henderson’s interrupted “substantially” during

Mr. Taylor’s out-briefing during his discovery response,

but in fact

121a

19-1712

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

HAROLD E. RUTILAIV,

Petitioner

DEPARTMENT OF TRANSPORTATION,

Respondent

PETITION FOR REVIEW FROM THE

MERIT SYSTEMS PROTECTION BOARD IN

DC-1221-18-0474-W-1

A.J. KASANDRA ROBINSON STYLES

REPLY BRIEF OF PETITIONER

HAROLD E. RUTILA IV

400 Gettysburg Road

Unit 305

Canton, MI 48187

h. rutila@gmail .com

(810) 845-3497

Petitioner In Pro Se

November 15, 2019

122a

violate these rules. AMA-505 was the office to which

Rutila’s evaluators belonged, and was the owner of this

document. This information, therefore, was binding on

the evaluators as they measured Rutila’s performance

in his PAs. The document’s inherent cross-reference to

Order 7110.65 as a “standard used to measure train

ees’ performance” should cause this Court to construe

both the document and Order 7110.65 as agency rules.

They contained expectations of trainees including

their duties, standards of conduct, and behavior.

F. Rutila’s purported waiver of his hearing

right was not clear, unequivocal, decisive,

informed, knowing, voluntary, or intelli

gent.

The idea that Rutila could have entered into a

knowing, voluntary, and intelligent waiver of his rights

to a hearing is negated by substantial evidence con

cerning the events immediately preceding the Board’s

prehearing conference.

To begin, the prehearing conference was held on

Friday, October 26, 2018 at 1:00 P.M. Appxl062. The

Summary of Telephonic Status Conference was issued

by the AJ the same day, October 26, 2018 at 2:01 P.M.

Appx2632. The hearing was scheduled for Monday, Oc

tober 29,2018 at 9:00 A.M. Appxl062.

The FAA argues that because Rutila failed to con

test one sentence in the AJ’s Summary of Prehearing

Conference, he “cannot complain now that he involun

tarily waived his right to a hearing.” Response at 65.

123a

But Rutila never waived, involuntarily or otherwise,

his hearing right. In its response, FAA has not pro

vided any evidence of a waiver. There is, however, sub

stantial evidence that Rutila, who was a pro se

appellant, was faced with procedural pressures during

the merits stage of his appeal which can be best de

scribed as substantial and inappropriate. There is per

haps no better example of this than the content of

Rutila’s motion to postpone his hearing, filed October

26, 2018. Appx2569-2571. Among other things, he ex

plained

I cannot reasonably be ready for a hearing on Oc

tober 29th. I have spent six days preparing and fil

ing a motion to compel. That motion was due on

the same date as my prehearing submissions. The

total expenditure of time I spent on those items

combined is approximately 40 hours across 6 days.

During that same period of time I also had to work.

I am now left with five more days to prepare for

the hearing, without even knowing what the result

of my outstanding motions will be.

Id. He further explained, “The Board gave me six days

to file a motion to compel, which is four days less than

the regulations provide.” Id. (citing App’x 1062), com

pare with 5 C.F.R. § 1201.73(d)(3). The FAA’s argument

is that Rutila should have contested the AJ’s Summary

of Prehearing Conference to allow the Board to be

“made aware” of Rutila’s contention. This is, frankly,

absurd. It is not Rutila’s responsibility to inform the

AJ of the Board’s legal responsibilities prescribed in

the judges’ handbook.

124a

An order the AJ filed concurrently with her sum

mary provided Rutila with 14 days to file an “informal

brief,” the rules and standards of proof for which do not

exist. Any time Rutila had in the wake of this night

mare would necessarily be spent complying with the

AJ’s order to produce an “informal brief.” Rutila was

not equipped to research the merits of the two options

the AJ presented in her ultimatum, establish the bevy

of case law which unequivocally supports his hearing

right, file it in a brief, and pray the AJ saw it before the

close of business. Therefore, FAA’s position is wholly

unreasonable.

The Supreme Court has addressed questions of

waivers of rights using traditional common-law princi

ples. In the case of constitutional rights, the Supreme

Court has established a standard whereby a waiver is

permitted where entry into it is “knowing, voluntary

and intelligent.” Johnson v. Zerbst, 304 U.S. 458, 46269 (1938). In the

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