498 F. App'x 1
Fed. Cir.2012Background
- Navy removed Janice Smets, a Contract Specialist, GS-12, prompting two MSPB appeals: IRA (whistleblower retaliation) and removal (affirmative defenses).
- Administrative judge sustained the removal and rejected the whistleblower claim in both appeals; Board adopted those decisions.
- Smets alleged protected disclosures in 2009–2010; she faced a 60-day PIP due to performance deficiencies and failed to complete tasks.
- Evidence showed widespread performance issues and noncompliance; removal effective May 5, 2010 followed an inadequate PIP.
- On appeal, the court reviewed for substantial evidence and procedural integrity; jurisdictional issues about mixed-discrimination claims arose.
- Court affirmed Board’s decision, holding substantial evidence supported removal regardless of disclosures; sanctions and evidentiary rulings found not abusive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Navy would have removed Smets absent disclosures | Smets argues disclosures were a contributing factor. | Navy proved removal would occur anyway under Carr. | Yes, Board evidence supported no-discount; removal would have occurred. |
| Whether the sanctions and discovery rulings were proper | Smets challenges exclusion of witnesses and sanctions. | Navy argues rulings were within discretion. | No abuse of discretion; sanctions sustained. |
| Jurisdiction to review mixed discrimination claims in removal cases | Discrimination claims persist and must be reviewed. | Mixed-case jurisdiction limits review unless waivers apply. | Discrimination claims deemed not cognizable; merits reviewed. |
Key Cases Cited
- Carr v. Social Security Administration, 185 F.3d 1318 (Fed. Cir. 1999) (protected-disclosure and clear-and-convincing evidence framework)
- Dedrick v. Berry, 573 F.3d 1278 (Fed. Cir. 2009) (review of cognizable discrimination in mixed cases)
- Hill v. Dep't of the Air Force, 796 F.2d 1469 (Fed. Cir. 1986) (mixed-case jurisdictional restriction for discrimination claims)
- Curtin v. Office of Personnel Management, 846 F.2d 1373 (Fed. Cir. 1988) (discovery and evidentiary discretion standard)
- Massa v. Dept. of Defense, 815 F.2d 69 (Fed. Cir. 1987) (substantial-evidence standard for MSPB review)