Losada v. Department of Defense
601 F. App'x 940
Fed. Cir.2015Background
- Manuel Losada, a DoDEA guidance counselor at Naples Elementary School, was removed in June 2010 for (1) unauthorized disclosures of confidential student/teacher information to a Stars and Stripes reporter and (2) failing to follow DoDEA procedures for reporting suspected child abuse.
- Earlier appeal: this court affirmed the Board’s finding that four disclosures to Stars and Stripes were not protected under the Whistleblower Protection Act (WPA) and remanded as to a March 17, 2010 email Losada sent to the Office of Special Counsel (OSC) describing suspected child abuse.
- On remand the administrative judge found the OSC email was a protected disclosure and a contributing factor in the removal, but concluded DoDEA proved by clear and convincing evidence it would have removed Losada absent that protected disclosure.
- The Board affirmed, reasoning the abuse-related charge punished failure to report through required agency channels (FAP or supervisor), not the whistleblower disclosure to OSC, and that the Stars and Stripes disclosures and the reporting failure together supported removal.
- The court reviewed whether DoDEA met its burden under 5 U.S.C. § 1221(e)(2) to show by clear and convincing evidence it would have taken the same action absent the protected disclosure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the OSC email was a protected disclosure and a contributing factor | Losada: the email described suspected child abuse and thus was a protected WPA disclosure and contributed to removal | DoDEA: discipline was for failure to report via agency channels, not for the OSC disclosure | Court: AJ and Board found the email protected and a contributing factor, but Board still upheld removal on other grounds |
| Whether agency proved by clear and convincing evidence it would have taken the same action absent the protected disclosure | Losada: agency cannot show same-action because the email was the basis for the reporting-charge and discipline | DoDEA: even without the email, removal would have occurred based on Stars and Stripes disclosures and failure to report to FAP/supervisor | Held: substantial evidence supports Board’s finding DoDEA proved by clear and convincing evidence it would have removed Losada absent the protected disclosure |
| Whether DoDEA regulation barring disclosure to OSC (or similar) removes WPA protection under the statutory ‘‘specifically prohibited by law’’ exception | Losada: agency could rely on its rule to defeat WPA protection for the OSC email | DoDEA: regulation requires reporting through channels; discipline for failing to follow those channels supports removal | Held: MacLean limits the ‘‘specifically prohibited by law’’ exception to statutes, not agency rules; here agency punished failure to follow reporting procedures, not the act of whistleblowing, so MacLean does not bar the agency’s proof of same-action |
| Whether alleged retaliatory motive by agency officials undermines clear-and-convincing showing | Losada: officials had motive to retaliate, which weighs against finding same-action | DoDEA: officials denied retaliatory motive; other sustained charges independently support removal | Held: Board considered motive (found more than minimal motive) but nonetheless concluded clear-and-convincing evidence supported removal; court affirmed |
Key Cases Cited
- Losada v. Dep’t of Defense, [citation="484 F. App'x 529"] (Fed. Cir. 2012) (prior appeal: upheld Stars and Stripes findings; remanded on OSC email issue)
- Carr v. Soc. Sec. Admin., 185 F.3d 1318 (Fed. Cir. 1999) (retaliatory motive is relevant to whether agency would have taken same action)