John Howard v. Department of Transportation
511 F. App'x 984
Fed. Cir.2013Background
- Howard appeals MSPB and FAA termination of his temporary SATC assignment and return to ATCS.
- Protected WPA whistleblowing alleged for November 2007 disclosure of colleague misconduct.
- Promoted to SATC in January 2008 with an explicit temporary status.
- Admonishment in December 2007 for inappropriate remarks; later reduced to admonishment.
- May 2009 termination from SATC; Howard alleged retaliation for November disclosure; OSC investigation completed.
- MSPB Administrative Judge found, and Board adopted, that agency would have acted regardless of whistleblowing; final affirmed on review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there protected WPA disclosure and causation? | Howard engaged in protected disclosure; disclosure was a contributing factor. | Agency would have acted regardless of disclosure; no WPA causation. | Board decision that action would have occurred anyway upheld. |
| Did the Administrative Judge admit improper evidence and apply Cat’s Paw? | Adverse actions influenced by improper evidence or Cat’s Paw theory. | Evidence properly considered; Cat’s Paw theory rejected. | No reversible error; evidence properly considered and Cat’s Paw theory rejected. |
| Were credibility determinations properly upheld on review? | Witness credibility misassessed to Howard’s detriment. | Credibility determinations are virtually unreviewable. | Credibility determinations affirmed; not disturbed on appeal. |
| Did the Administrative Judge’s consideration of the admonishment affect outcome? | Admonishment improperly used to support retaliation. | Admonishment properly part of record and used appropriately. | Use of admonishment did not undermine the agency’s termination rationale. |
Key Cases Cited
- Fields v. Dep’t of Justice, 452 F.3d 1297 (Fed. Cir. 2006) (reaffirming whistleblower action framework and standard of review)
- Kewley v. Dep’t of Health & Human Servs., 153 F.3d 1357 (Fed. Cir. 1998) (requiring showing of contributing factor evidence in WPA cases)
- Bennett v. Merit Sys. Prot. Bd., 635 F.3d 1215 (Fed. Cir. 2011) (burden-shifting framework for WPA retaliation claims)
- Rogers v. Dep’t of Def. Dependents Sch., 814 F.2d 1549 (Fed. Cir. 1987) (credibility determinations virtually unreviewable)
- Windsurfing Int’l Inc. v. AMF, Inc., 782 F.2d 995 (Fed. Cir. 1986) (courts' interpretation of incomplete discussions and evidence)
- Perkin-Elmer Corp. v. Computervision Corp., 732 F.2d 888 (Fed. Cir. 1984) (principle that failure to discuss facts does not imply failure to consider them)