Smith v. Gen. Servs. Admin.
930 F.3d 1359
| Fed. Cir. | 2019Background
- Robert Smith, a long‑time GSA financial advisor and quadriplegic, repeatedly emailed upper management (2012–2016) alleging undercollection of rent and mismanagement; supervisors restricted his communications and warned of discipline.
- After a reorganization and continued disclosures (notably an 87‑page "Performance Diagnostic" in Dec. 2015), Smith was suspended and then removed in 2016 for (1) violating IT policy (leaving his PIV card in his laptop), (2) failing to follow supervisory instructions (including allegedly working on a weekend), and (3) disrespectful conduct toward his supervisor.
- Smith appealed to the Merit Systems Protection Board (MSPB), asserting whistleblower reprisal under 5 U.S.C. § 2302(b)(8); the AJ found his disclosures were protected and contributed to the removal but nonetheless affirmed the removal because the agency proved by clear and convincing evidence it would have removed him absent the disclosures.
- The Federal Circuit reviewed de novo the Board’s legal conclusions and for substantial evidence its factual findings, finding legal error in the Board’s whistleblower analysis and factual insufficiency for two specifications (PIV/IT exemption and weekend work).
- Court held the Board conflated two inquiries — whether misconduct justified removal and whether the agency would have removed absent whistleblowing — and failed to analyze Carr factors regarding motive to retaliate and comparator treatment; it vacated and remanded for proper analysis and reconsideration of penalty.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Board applied correct standard on whistleblower reprisal (would agency have acted absent disclosure) | Smith: Board must determine if agency would have taken same action absent protected disclosure, considering Carr factors | GSA: Strong evidence of misconduct justifies removal regardless of disclosure | Court: Board applied wrong test (looked only to merits); vacated and remanded for Carr‑factor analysis and correct burden (clear and convincing) |
| Whether agency proved IT policy violation (PIV card) | Smith: quadriplegia and supervisors’ knowledge created de facto exemption; agency didn’t rebut | GSA: policy required removal of PIV card; Smith trained and failed to comply | Court: insufficient substantial evidence that policy applied to Smith given disability exemption and supervisors’ conduct; reversed that charge |
| Whether weekend‑work specification proved failure to follow instructions | Smith: no formal prohibition; routinely worked weekends for health reasons; no evidence others were disciplined | GSA: supervisor instructed him not to work weekends; he did so | Court: agency failed to show propriety of the instruction or comparator discipline; specification unsupported and reversed |
| Whether disrespectful conduct specifications and penalty were supported | Smith: context and mitigating circumstances (position description, disclosures) justify mitigation | GSA: admitted statements were rude/defiant warranting discipline including removal | Court: sustained disrespectful conduct findings (substantial evidence) but vacated penalty analysis pending remand on reprisal and reversed other charges may warrant mitigation or different penalty |
Key Cases Cited
- Whitmore v. Dep’t of Labor, 680 F.3d 1353 (Fed. Cir. 2012) (establishes employee prima facie burden and agency’s clear‑and‑convincing burden to show same‑action absent disclosure)
- Carr v. Social Security Admin., 185 F.3d 1318 (Fed. Cir. 1999) (sets three‑factor framework for evaluating whether agency would have acted absent disclosure)
- Siler v. Envtl. Prot. Agency, 908 F.3d 1291 (Fed. Cir. 2018) (reversing penalty where reprisal tainted removal; merits do not resolve reprisal defense)
- Universal Camera Corp. v. NLRB, 340 U.S. 474 (U.S. 1951) (substantial‑evidence review requires considering whole record, including detracting evidence)
- Pope v. U.S. Postal Service, 114 F.3d 1144 (Fed. Cir. 1997) (agency must prove misconduct and reasonableness of penalty by preponderance in disciplinary appeals)