Regina G. Davis, Ph.D. v. Department of the Army
Background
- Regina G. Davis served ~8 months as a contractor in the Army's Warrior Resiliency Program, then began a competitive-service 2-year term appointment as a GS-13 Clinical Research Psychologist on September 27, 2010, subject to a 1-year probationary period.
- The agency conducted AR 15-6 investigations into allegations involving Davis; one investigation concluded November 2010 (preappointment issues), a second began after appointment and concluded March 2011 (postappointment conduct).
- Davis refused a mandatory April 2011 meeting called by senior leadership to discuss the second investigation’s findings and her transfer request; the agency terminated her effective May 11, 2011 for failing to attend the meeting and for insubordination.
- Davis filed two MSPB appeals: (1) a probationary termination appeal asserting preappointment grounds and entitlement to 5 C.F.R. § 315.805 procedures; and (2) an Individual Right of Action (IRA) whistleblower appeal alleging reprisal for protected disclosures. The appeals were joined for hearing.
- The administrative judge dismissed the probationary-termination appeal for lack of jurisdiction (Davis was a probationary employee without 1 year of current continuous service and contractor time is not tacked on). The judge found jurisdiction over the IRA claim, found Davis made protected disclosures and that they were a contributing factor, but concluded the agency proved by clear and convincing evidence it would have terminated Davis for insubordination regardless of the disclosures.
- The Board denied Davis’s petitions for review and affirmed the initial decision in full.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction over probationary termination (1-year current continuous service) | Davis argued contractor time (Humana/Veritas) should be tacked on to meet the 1-year requirement and that she was an employee under common-law/EEOC reasoning | Agency argued contractor service is not Federal civilian service and thus not creditable; Davis was serving a probationary period and lacked 1 year of current continuous service | Held: Contractor service not creditable; Davis was a probationary employee without required service; Board lacks chapter 75 jurisdiction |
| Termination based on preappointment reasons / entitlement to 5 C.F.R. § 315.805 procedures | Davis contended termination arose from preappointment investigation findings and thus she was entitled to § 315.805 procedures | Agency argued the termination was for postappointment insubordination (failure to attend April 2011 meeting); citations to investigations were background, not the stated basis for removal | Held: Termination based on postappointment failure to follow orders; § 315.805 procedures not required |
| Evidentiary rulings and witness exclusions at hearing | Davis claimed the administrative judge excluded relevant evidence and most requested witnesses, preventing full development of the case | Agency defended the judge’s exclusions as proper exercise of discretion to limit irrelevant, immaterial, or repetitive evidence and witnesses | Held: No abuse of discretion; Davis failed to show excluded witnesses/evidence would have changed outcome |
| IRA whistleblower claim — contributing factor and agency’s clear-and-convincing defense | Davis argued her protected disclosures contributed to retaliation and termination; challenged agency motives and investigative record | Agency conceded the disclosures but argued strong evidence of independent cause (repeated insubordination and refusal to obey orders) and weak motive to retaliate; asserted it would have terminated Davis regardless | Held: Board found disclosures were protected and contributed, but agency proved by clear and convincing evidence it would have terminated Davis absent disclosures; corrective action denied |
Key Cases Cited
- McCormick v. Department of the Air Force, 307 F.3d 1339 (Fed. Cir.) (defining service requirements for chapter 75 appeal rights)
- Johnson v. Merit Systems Protection Board, [citation="495 F. App'x 68"] (Fed. Cir.) (contractor service cannot be tacked onto federal service)
- Yunus v. Department of Veterans Affairs, 242 F.3d 1367 (Fed. Cir.) (jurisdictional standards for IRA appeals)
- Langer v. Department of the Treasury, 265 F.3d 1259 (Fed. Cir.) (prima facie and jurisdictional standards in IRA appeals)
- Carr v. Social Security Administration, 185 F.3d 1318 (Fed. Cir.) (factors for assessing agency’s clear-and-convincing defense in whistleblower cases)
- Whitmore v. Department of Labor, 680 F.3d 1353 (Fed. Cir.) (consideration of all evidence, including that which detracts from agency’s showing)
- Haebe v. Department of Justice, 288 F.3d 1288 (Fed. Cir.) (deference to administrative judge credibility findings)