Javier Soto v. Department of Veterans Affairs
Case Information
*1
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
Docket No. AT-1221-15-0157-W-1 Javier Soto,
Appellant,
v. Department of Veterans Affairs,
Agency.
April 20, 2022
Jоyce E. Kitchens, Esquire, Atlanta, Georgia, for the appellant.
Kristin Langwell, Esquire, St. Petersburg, Florida, for the agency. BEFORE
Raymond A. Limon, Vice Chair Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action under
BACKGROUND The appellant, a reemployed annuitant, occupied the GS-0996-12 Ratings
Veterans Service Representative position with the agency’s Vete rans Service Center in Orlando, Florida. Initial Appeal File (IAF), Tab 5 at 127. By notice dated June 30, 2014, the deciding official, who was the Director of the St. Petersburg Regional Office, separated the appellant from his position and the Federal service, stating without elaboration that his “services [were] no longer required.” Id. at 27-28. The following day, the appellant sought corrective action from the Office of Special Counsel (OSC). IAF, Tab 7 at 10-18. He alleged that his separation was in reprisal for protected disclosures contained in two Quality Review Team (QRT) Studies, and for various grievances and complaints he filed in his capacity as Executive Vice President of the American Federation of Government Employees (AFGE) Local 1594. IAF, Tabs 28-42.
¶3 While the OSC complaint was pending, the deciding official prepared a
memorandum, dated September 22, 2014, setting forth her reasons for separating
the appellant. IAF, Tab 4 at 55-57. Her stated reasons were that the appellant
had engaged in misconduct involving his attendance and work schedule at an
April 2014 equal employment opportunity training and a May 2014 training with
AFGE, and had improperly claimed case credit by making duplicate entries in the
agency’s Automated Standardized Performance Elements Nationwide database in
June 2014.
Id.
The deciding official explained that, during this 3-month period,
the appellant was dishonest and misled management, refused to follow
instructions, and demonstrated a lack of integrity.
Id.
at 57. She further stated—
apparently, unbeknownst to her, incorrectly—that removal was the only
disciplinary option available, because, as a reemployed annuitant, the appellant
was “excluded from the legal authority to admonish, reprimand or suspend.”
Id.
By letter dated September 30, 2014, OSC informed the appellant that it had
completed its investigation, and advised him of his right to file an individual right
of action (IRA) appeal with the Board. IAF, Tab 1 at 14-15. The appellant filed
a timely IRA apрeal on November 18, 2014. IAF, Tab 1. Following a hearing,
the administrative judge issued an initial decision denying the appellant’s request
for corrective action. IAF, Tab 75, Initial Decision (ID). As a preliminary
matter, he found that the appellant had established Board jurisdiction concerning
his claims that the agency separated him in reprisal for protected disclosures
under
On review, the appellant does not contest the findings below concerning his
claims under
ANALYSIS
The appellant failed to show that his new claims that he engaged in additional
activity are protected under
a personnel action against an employee “because of [the employee] testifying for
or otherwise lawfully assisting any individual” in “the exercise of аny appeal,
complaint, or grievance right granted by any law, rule, or regulation[.]”
the claim under the burden-shifting framework set forth at
¶7 An appellant can establish that he engaged in protected activity under
both protected under
another bargaining-unit member, the administrative judge correctly found that the
appellant’s activity was not protected, because there is no law, rule, or regulation
granting a right to reply to a proposed admonishment. ID at 16-17. Thus, in
making that reply, the appellant did not assist another employee in an appeal,
complaint, or grievance right granted by law, rule, or regulation.
union’s RFI, the administrative judge found that
The administrative judge should conduct a new Carr factors analysis on remand. ¶11 We next turn to the question of whether the agency proved by clear and
convincing evidence that it would have separated the appellant absent his
protected activity. In determining whether an agency has met its burden, the
Board will consider all relevant factors, including the following: (1) the strength
of the agency’s evidence in support of its action; (2) the existence and strength of
any motive to retaliate on the part of the agency officials who were involved in
the decision; and (3) any evidence that the agency takes similar actions against
employees who do not engage in such protected activity, but who are otherwise
similarly situated.
Alarid
, 122 M.S.P.R. 600, ¶ 14;
see Carr
, 185 F.3d at 1323.
The Board must consider all the pertinent evidence in the record, and must not
exclude or ignore countervailing evidence by only looking at the evidence that
supports the agency’s position.
Alarid
, 122 M.S.P.R. 600, ¶ 14;
see Whitmore v.
Department of Labor
,
This appeal presents an issue of first impression in that, as a reemployed
annuitant, the appellant served at the will of the agency, and was not entitled to
the procedural protections afforded under chapter 75 of title 5.
See
The critical inquiry for this Carr factor is the mindset of the agency official who separated the employee at the time the employee was separated. In this analysis, even if, upon subsequent investigation, the reasons the official separated a reemployed annuitant turn out to be unsupported, the agency may still prevail on this Carr factor if it can demonstrate by clear and convincing evidence that, at the time he or she took the action, the official’s belief in the reasons warranting the employee’s separation were objeс tively both reasonable and supportable.
ID at 38-39. On review, the appellant contends that the administrative judge
erred in imposing the modified standard, and that the lack of due process
protections for reemployed annuitants does not affect the agency’s burden of
persuasion under the clear and convincing test. PFR File, Tab 1 at 30-31.
For the following reasons, we decline to adopt the administrative judge’s
analysis. First, it is not correct to state that an agency may “prevail” on the first
Carr
factor, or that it must establish the strength of its reasons by any particular
quantum of evidence. The Board does not view the
Carr
factors as discrete
elements, each of which the agency must prove by clear and convincing evidence,
but rather weighs these factors together to determine whether the evidence is
clear and convincing as a whole.
Alarid
, 122 M.S.P.R. 600, ¶ 14;
Lu v.
Department of Homeland Security
, 122 M.S.P.R. 335, ¶ 7 (2015). Furthermore,
we agree with the appellant that the agency’s burden of proof is not diminished
by his at-will status. While it is true the appellant could have been lawfully
separated with relative ease, it is not sufficient for the agency to establish that its
action was justifiable; rather, the agency must show b y clear and convincing
evidence that it would have taken thе
same
action in the absence of his protected
activity.
See
Turning to the second Carr factor, we agree with the administrative judge that the appellant’s protected activities, taken in isolation, would not have created a strong motive to retaliate on the part of either the deciding official, who issued the decision to separate the appellant, or the HRM official who assisted the deсiding official in taking that action. ID at 48-49. However, the Federal Circuit, the only circuit to have addressed this issue, has cautioned us against taking too narrow a view of the second Carr factor. In Whitmore , 680 F.3d at 1370, the court stated “[t]hose responsible for the agency’s performance overall may well be motivated to retaliate even if they are not directly implicated by the disclosures, and even if they do not know the whistleblower personally, as the criticism reflects on them in their capacities as managers and employees.” The court in Whitmore determined that, when a whistleblower makes highly critical accusations of an agency’s conduct that draws the attention of high-level agency managers, the fact that an agency official is “outside the whistleblower’s chain of command, not directly involved in alleged retaliatory actions, and not personally named in the whistleblower’s disclosure is insufficient to remove the possibility of a retaliatory motive or retaliatory influence,” and that the Board should consider any motive to retaliate on the part of the agency official who ordered the action, as well as that of any officials who influenced the action. Id. at 1371. In Miller v. Department of Justice , 842 F.3d 1252, 1261-62 (Fed. Cir. 2016), the court also instructed the Bоard not to limit its consideration of a the action, its decision would have been the same in the absence of the protected activity. Id. Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on this issue. However, as a result of changes initiated by the
Whistleblower Protection Enhancement Act of 2012 (Pub. L. No. 112-199, 126 Stat
1465), extended for 3 years (All Circuits Review Extension Act, Pub. L. No. 113-170,
128 Stat. 1894), and eventually made permanent (All Circuits Review Act, Pub. L.
No. 115-195, 132 Stat. 1510), we must consider this issue with the view that the
appellant may seek review of this decision before any appropriate сourt of appeal.
See
motive to retaliate to the appellant’s supervisors, but to examine whether a retaliatory motive could be imputed more broadly. Similarly, in Robinson v. Department of Veterans Affairs , 923 F.3d 1004, 1019 (Fed. Cir. 2019), the court found that, although the deciding official did not have a personal motive to retaliate against the appellant for contradicting an agency Under Secretary, the Board’s administrative judge erred by failing to consider whether he had a “professional retaliatory motive” against the appellant because his disclosures “implicated the capabilities, performance, and veracity оf [agency] managers and employees, and implied that the [agency] deceived [a] Senate Committee.” ¶15 In sum, the Federal Circuit’s decisions instruct that, in assessing Carr factor
two, the existence and strength of any motive to retaliate on the part of the agency
officials who were involved in the decision, the Board and its administrative
judges should avoid an overly restrictive analysis and should fully consider
whether a motive to retaliate can be imputed to the agency officials involved and
whether those officials possessed a “professional retaliatory motive,” because the
whistleblower’s disclosures implicated agency officials and employees in general.
In conducting this analysis, all of the record evidence relevant to whether there
was a motive to retaliate and the extent of that motive must be consid ered.
See
Whitmore
,
decision, the record does not definitively establish that the agency has taken
separation actions against reemployed annuitants who engaged in misconduct and
did not engage in protected activity under
As the appellant correctly observes, it is the agency that bears the burden of proving that it would have taken the same action in the absence of his protecte d activity. PFR File, Tab 1 at 28; see Alarid , 122 M.S.P.R. 600, ¶ 14. While the agency does not have an affirmative burden to produce evidence concerning each and every Carr factor, the Federal Circuit has held that “the absence of any evidence relating to Carr factor three can effectively remove that factor from the analysis,” but that the failure to produce such evidence if it exists “may be at the agency’s peril,” and “may well cause the agency to fail to prove its case overall.” Whitmore , 680 F.3d at 1374-75. Moreover, because it is the agency’s burden of proof, when the agency fails to introduce relevant comparator evidence, the third Carr factor cannot weigh in favor of the agency. Smith v. General Services Administration, 930 F.3d 1359, 1367 (Fed. Cir. 2019); Siler v. Environmental Protection Agency , 908 F.3d 1291, 1299 (Fed. Cir. 2018). Here, the agency has introduced some comparator evidence, but its evidence is insufficient to show that the proffered comparators are in fact appropriate comparators. Under the circumstances, we find that the agency has failed to introduce complete, fully explained comparator evidence, the Federal Circuit’s admonitions in Smith and Siler apply, and Carr factor 3 does not weigh in the agency’s favor. [9] In light of our findings above, we conclude that it is necessary to conduct a new analysis of the Carr factors. We further find that the administrative judge is in the best position to do so, having heard the live testimony. See Shibuya v. Department of Agriculture , 119 M.S.P.R. 537, ¶ 37 (2013). Accordingly, we remand the appeal for a new finding as to whether the agency proved by clear and convincing evidence that it would have separated the appellant in the absence of his protected activity. The administrative judge may adopt his previous factual findings and credibility determinations as appropriate. [10]
ORDER We remand the appeal to the Atlanta Regional Office for further
adjudication consistent with this Opinion and Order.
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
Notes
[1] The Board has long held that reemployеd annuitants enjoy the protections of
[2] Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue.
[3] Clear and convincing evidеnce is that measure or degree of proof that produces in the
mind of a trier of fact a firm belief as to the allegations sou ght to be established.
[4] For the same reason, the appellant is mistaken in his impression that the agency must prove the elements of its charges by clear and convincing evidence. PFR F ile, Tab 1 at 11. In a chapter 75 adverse action appeal involving an affirmative defense of whistleblowing reprisal, proof of the agency’s charges may lend support to a finding that the agency proved by clear and convincing evidence that it would have taken the same action in the absence of the appellant’s protected disclosures or protected activity. See Shibuya v. Department of Agriculture , 119 M.S.P.R. 537, ¶ 37 (2013) (finding that the administrative judge should reweigh the evidence on remand in light of the full Board’s finding that the agency proved both of its charges). This does not imply, however, that proof of the alleged misconduct is either necessary or sufficient to sаtisfy the agency’s overall burden, although it is relevant evidence that must be considered. Id. (reminding the administrative judge that on remand “all the relevant evidence as a whole” should be considered).
[5] In considering the first Carr factor, the Board assesses the evidence as it stood at the time of the action, and in light of what the agency officials knew at the time they acted. Yunus v. Department of Veterans Affairs , 242 F.3d 1367, 1372 (Fed. Cir. 2001). We agree with the appellant, however, that to focus exclusively on the actual beliefs held by the agency officials would be inconsistent with our obligation to consider all pertinent evidence. PFR File, Tab 1 at 31; see Whitmore , 680 F.3d at 1368. For example, if an agency official fails to investigate a charge sufficiently before bringing an action, such a failure might indicate an improper motive. Social Security Administration v. Carr , 78 M.S.P.R. 313, 335 (1998), aff’d , 185 F.3d 1318 (Fed. Cir. 1999). If, on the other hand, relevant facts are developed on appeal to the Board that the agency had no prior reason to know, we would find that such facts do not undercut the agency’s otherwise sufficiently clear and convincing evide nce that, at the time of
[7] In
Robinson
, for example, the court noted that the administrative judge failed to
discuss whether the deciding official had a “professional motive to retaliate,” but
ultimately decided that
Carr
factor two slightly favored the agency based on its
conclusion that the administrative judge’s crediting of the deciding official’s testimony
that he lacked a motive to retaliate was “not unreasonable.”
[8] The appellant identified another reemployed annuit ant, also a GS-12 RSVR, who did not engage in whistleblowing or union activity, and who was placed on “second signature” as a result of performance problems relating to his failure to follow policy and procedures in rating claims. HT (Jan. 29, 2016) at 248 ‑ 50 (testimony of the appellant). However, while the third Carr factor requires that the Board take into account differеnt kinds and degrees of conduct between otherwise similarly situated employees, Whitmore 680 F.3d at 1373-74, we find that a meaningful comparison cannot be drawn between the other reemployed annuitant’s perform ance issues and the appellant’s conduct.
[9] We recognize that there are different reasons why a record in a whistleblowing case might not contain relevant comparator evidence. Here, as in Smith and Siler , the reason is that the agency failed to make a sufficient proffer of such evidence. In another case, the agency may present persuasive evidence that no аppropriate comparators exist. Until we are presented with that fact pattern, however, we need not decide that case.
[10] On remand, the administrative judge should address documentary evidence indicating that the agency issued a directive that Automated Standardized Performance Elements Nationwide records were not to be used in determining employee performance during the period from May through August 2014. IAF, Tab 34 at 16, ¶ 9. The administrative judge also may consider whether and to what extent the medical evidence concer ning the union president might lead him to revise his assessment of her credibility.