William R. Campbell v. Department of the Army
2016 MSPB 38
| MSPB | 2016Background
- Appellant (GS-15 DPTMS Director at Fort Bliss) oversaw Range Branch and was responsible for internal controls, including Government Purchase Card (GPC) oversight.
- 2011–2012 audits and an AR 15-6 investigation revealed systemic management-control failures in the Range Branch, misuse of GPCs, and missing government property; the investigation criticized the appellant’s oversight.
- Agency proposed removal for negligent performance of duty (three specifications about absent controls); deciding official mitigated to demotion to GS-12.
- Appellant appealed to the MSPB, contesting the charge, asserting he implemented controls, arguing the agency relied on an outdated regulation, and asserting whistleblower reprisal for reporting suspected theft and seeking external audit.
- Administrative judge sustained the charge, found appellant made a protected disclosure that was a contributing factor but held the agency proved by clear and convincing evidence it would have demoted him anyway, and upheld the demotion as reasonable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether agency proved negligent performance of duty | Campbell: audit relied on outdated regulation; he acted promptly to fix issues and had implemented policies | Army: audits covered period when older AR applied; evidence shows long‑standing control failures and inadequate oversight by Campbell | Proven. Board found investigators reasonably relied on contemporaneous regulations and the charge supported by strong evidence |
| Whether appellant’s disclosures were protected and a contributing factor | Campbell: reported suspected theft and requested external audit; demotion was retaliatory | Army: did not retaliate; proposing/deciding officials lacked motive; would have acted absent disclosure | Appellant made a protected disclosure and it was a contributing factor, but agency met clear and convincing burden that it would have demoted him anyway |
| Whether penalty was reasonable (including disparate treatment claim) | Campbell: other directors had accountability problems but were not demoted | Army: other directors addressed issues promptly; Campbell failed to remediate recurring weaknesses | Demotion within tolerable limits. Board found Douglas factors considered and disparate‑penalty claim unsupported |
| Whether appellant received a fair opportunity to present whistleblower defense | Campbell (implied): decision ignored exculpatory evidence or comparators | Army/judge: all 14 requested witnesses allowed; extensive record considered | Board found appellant was allowed to present his defense; AJ’s factfinding thorough and did not exclude relevant evidence |
Key Cases Cited
- Carr v. Social Security Administration, 185 F.3d 1318 (Fed. Cir. 1999) (factors to weigh when agency proves affirmative defenses against whistleblower claims)
- Whitmore v. Department of Labor, 680 F.3d 1353 (Fed. Cir. 2012) (clear‑and‑convincing review requires considering all pertinent evidence and not excluding defense evidence)
- Shannon v. Department of Veterans Affairs, 121 M.S.P.R. 221 (MSPB 2014) (treatment of whistleblower reprisal as an affirmative defense in adverse action appeals)
- Crosby v. U.S. Postal Service, 74 M.S.P.R. 98 (MSPB 1997) (deference to AJ findings when evidence considered as whole and inferences reasonable)
- Douglas v. Veterans Administration, 5 M.S.P.R. 280 (MSPB 1981) (factors for penalty assessment)
- Ellis v. Department of Defense, 114 M.S.P.R. 407 (MSPB 2010) (nexus requirement between misconduct and agency interest)