McInnis v. Education
16-2652
| Fed. Cir. | Feb 8, 2017Background
- McInnis was an Institutional Review Specialist at the Department of Education (FSA) with a history of prior discipline (suspensions and counseling for attendance and leave issues).
- From Dec. 2012 to Aug. 2013 the agency charged McInnis with repeated absence without leave (AWOL) on 47 occasions, failure to follow leave procedures, and failure to follow instructions (including cybersecurity training and security-incident procedures).
- The agency removed McInnis effective Jan. 24, 2014; he appealed to the Merit Systems Protection Board (MSPB), asserting wrongful removal, whistleblower retaliation for disclosures about Perot Systems contract problems, complaints about supervisor treatment of women, and a USERRA violation.
- An administrative judge sustained most of the charged incidents (44 AWOLs; 57 leave-procedure failures; both instruction failures), found no protected WPA disclosure and determined removal was supported and the penalty appropriate given misconduct and disciplinary history.
- The MSPB adopted the initial decision as its final order, found McInnis waived a contractual-timing challenge, rejected the whistleblower and other affirmative defenses, and concluded the agency proved by clear and convincing evidence it would have removed McInnis absent any protected disclosure.
- McInnis appealed to the Federal Circuit; the court reviewed for substantial evidence and legal error and affirmed the MSPB decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether AWOL and leave-procedure charges were proven | McInnis argued the agency lacked proof he was repeatedly absent without leave | Agency relied on extensive documentation showing repeated unauthorized absences | Sustained; substantial evidence supports the AWOL and leave-procedure findings |
| Whether supervisory-instruction charge (security training notification) was proven | McInnis claimed he completed and notified supervisor of required training | Agency showed training reminders, due dates, and lack of notice from McInnis | Sustained; no credible evidence McInnis notified supervisor he completed training |
| Whether removal was retaliatory whistleblowing in violation of WPA | McInnis asserted disclosures about Perot contract problems caused reprisal | Agency officials testified disclosures did not affect removal; agency showed legitimate grounds and lack of motive | Rejected; no protected disclosure shown and, even if, agency proved by clear and convincing evidence it would have removed him anyway |
| Whether procedural/contractual timing defect or other claims (sexual complaints, USERRA) required reversal | McInnis argued removal letter was outside CBA timing; also claimed reprisal for sex-complaints and USERRA violation | MSPB: timing argument waived; no evidence officials knew of sex complaints; USERRA not implicated | Rejected; waived or unsupported and no harmful error shown |
Key Cases Cited
- Dickinson v. Zurko, 527 U.S. 150 (standard for substantial evidence review of agency factfinding)
- Anderson v. City of Bessemer City, 470 U.S. 564 (deference to factfinder when crediting witness testimony)
- Johnston v. Merit Sys. Prot. Bd., 518 F.3d 905 (WPA contributing-factor standard)
- Chambers v. Dep’t of the Interior, 602 F.3d 1370 (agency burden to prove by clear and convincing evidence it would have taken same action)
- Welshans v. USPS, 550 F.3d 1100 (scope of appellate review of MSPB decisions)
- Jones v. HHS, 834 F.3d 1361 (definition of substantial evidence)