Clifford W. Jones, Sr. v. Department of Health and Human Services
Background
- Clifford W. Jones, Sr., a GS-11 Supervisory Financial Management Specialist at IHS Cass Lake Hospital, was removed effective May 20, 2011 for unacceptable performance in three critical elements.
- Jones previously filed an IRA/OSC whistleblower matter that the Board found lacked jurisdiction; the Board later concluded Jones was entitled to challenge his removal under 5 U.S.C. chapter 43 and remanded for a merits adjudication.
- On remand, the administrative judge held a hearing, found the agency had an approved appraisal system, communicated valid performance standards, and gave Jones a reasonable opportunity to improve.
- The AJ found by substantial evidence that Jones’s performance was unacceptable on: (1) supervising training/compliance/discipline; (2) directing hospital financial objectives/policies; and (3) implementing the “M” inventory system and timely reporting.
- The AJ barred Jones’s whistleblower retaliation defense by collateral estoppel based on the prior IRA proceeding; she rejected his due-process, age, and sex discrimination claims for lack of evidence and sustained the removal (Board affirmed).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether agency proved unacceptable performance under the three critical elements | Jones denied responsibility for failures (e.g., blamed contractor/staff turnover) and contested the inventory-system allegation | Agency presented PIP, notices, supervisory testimony, and documentary evidence showing failures and lack of required reports | Agency proved by substantial evidence Jones’s performance was unacceptable in all three elements; removal sustained |
| Whether whistleblower retaliation defense is barred | Jones argued his disclosures about a second accounting section and hiring irregularities were protected | Agency relied on prior IRA proceeding where that disclosure was litigated; collateral estoppel applies | Collateral estoppel precludes relitigation; whistleblower defense barred |
| Whether Jones was denied due process regarding notice/opportunity to respond | Jones claimed procedural defects (e.g., denial of computer access, new Budget Technician position) deprived him of due process | Agency showed written notice, opportunities to respond, and that any alleged computer-access issue did not affect outcome | AJ correctly found no due-process violation; removal process provided required notice and response opportunities |
| Whether age/sex discrimination claims were established | Jones alleged discrimination but presented no documentary evidence and declined to testify | Agency presented sworn testimony that age/sex played no role; AJ excluded proposed witnesses as irrelevant | AJ did not err: Jones produced no evidence; claims not sustained; refusal to testify permitted an adverse inference |
Key Cases Cited
- Haebe v. Department of Justice, 288 F.3d 1288 (Fed. Cir. 2002) (deference to credibility findings based on witness demeanor)
- Kroeger v. U.S. Postal Service, 865 F.2d 235 (Fed. Cir. 1988) (elements for collateral estoppel/issue preclusion)
- Hillen v. Department of the Army, 35 M.S.P.R. 453 (MSPB 1987) (factors for assessing witness credibility)
- Boal v. Department of the Army, 51 M.S.P.R. 134 (MSPB 1991) (adverse inference where appellant refuses to testify)
- Crosby v. U.S. Postal Service, 74 M.S.P.R. 98 (MSPB 1997) (deference to AJ factfinding where record supports conclusions)
- Jenkins v. Environmental Protection Agency, 118 M.S.P.R. 161 (MSPB 2012) (collateral estoppel in MSPB context)
- Savage v. Department of the Army, 122 M.S.P.R. 612 (MSPB 2015) (standards for proving discrimination claims)