*1 WARREN, Petitioner, A. Walter ARMY,
DEPARTMENT OF
Respondent.
Appeal No. 86-817. Appeals, Court of
United States
Federal Circuit.
Oct. *2 detail, Warren difficulty
After computer with his new duties. Howard supervisor, Highley, Warren’s issued a no- 5, 1984, tice Warren on to December warn- performance him that his was unsatis- and him factory allowing days in which Wind, Heller, Kator, Amy and Scott improve. Warren continued to have dif- D.C., Washington, argued petitioner. for ficulty assignments with his new even af- Irving was Kator. With her on brief ter extensive instruction. Warren’s remov- al followed on March 1985. Harbottle, Litiga- Scott A. Commercial Justice, Branch, Dept, Washington, appealed Warren his removal D.C., argued respondent. for With him on MSPB, arguing given an Willard, Acting K. the brief were Richard “opportunity acceptable to demonstrate Director, Gen., Cohen, Atty. M. Asst. David performance,” 4302(b)(6), 5 U.S.C. and § Stephen J. Robert A. Reutershan illegal removal his for his Hernicz, Army, B. McHale. Charles U.S. activities, 2302(b)(8). protected 5 U.S.C. § Advocate, Judge Office of the Staff Fort presiding The official sustained the DOA’s McPherson, Georgia, of counsel. removal Warren and found that by DOA established substantial evidence NIES, NICHOLS, Judge, Before Circuit that Warren’s unac- ARCHER, Judge Senior Circuit Circuit ceptable after he was a reasonable Judge. opportunity improve. In regard to War- of reprisal, presiding ren’s claim offi- NICHOLS, Judge. Senior Circuit cial found that Warren established (Warren) appeals Walter Warren in, A. protected engaged activities were decision Systems Merit Protection activities, accused officials knew of these (MSPB board), Board or (adverse M.S.P.R. action) resulted”; “retaliation sustaining Department decision however, (4) Warren failed to establish that McPherson, Army (DOA) Fort the adverse action was taken in retaliation Georgia, removing position him from protected presiding for his activities. The Computer Specialist unacceptable per- for official based this fourth conclusion on the formance, U.S.C. de- board § substantial evidence of unac- Warren’s clined to review the initial decision its ceptable performance and on Warren’s fail- official, presiding making its decision reprisal beyond offer ure to evidence own. We affirm. coincidence time between the adverse activities,
action and the
which
requisite
the official found did not meet the
Background
preponderance of the evidence. The MSPB
2, 1984,Warren,
April
employed
On
then
denied review
presiding
official’s
Division,
Systems
the DOA Information
opinion.
appealed
Warren has
to this
position
grade
to a
detailed
of like
court.
title in
July
the same division. On
permanently reassigned
Warren was
Analysis
position.
this
Prior
his
after
detail,
engaged
a variety
pro-
Warren
The standard of
court in
review
activities,
“whistleblowing”
tected
includ-
considering
type
an MSPB decision of this
ing an
unsuccessful
lawsuit
federal
agency’s
action must
limited.
challenging
court
classification of
sustained unless it is found to be:
position
him by agency
and treatment of
officials,
regarding
arbitrary, capricious,
of dis-
a letter
his senator
abuse
cretion,
promotions,
equal employ-
merit
or
not in
and an
otherwise
accordance
law;
complaint.
procedure required
obtained without
II
law, rule,
regulation having
been
This
applicable
case would be within
followed; or
precedents
hardly
justify
would
ex-
published opinion
tended discussion or a
(3) unsupported by
evidence;
substantial
except
quirk
for a
curious
in the
7703(c);
Hayes
5 U.S.C.
§
opinion,
official’s
and a still more curious
*3
1535,
(Fed.Cir.
Navy,
the
727 F.2d
1537
of
use of
petitioner
it
the
They
here.
1984). The decision to dismiss a federal
indicate the
problem
existence of a
that has
employee
sup-
must have a “rational basis
not,
know,
so far as
previous-
we
surfaced
ported by substantial evidence from the
ly,
may produce
difficulty in future
record as a whole.” Van-Fossen v. De-
if
cases
not faced squarely in this one.
partment
Housing
Develop-
and Urban
of
The board and
petitioner
counsel for
ment,
1579,
(Fed.Cir.1984).
748 F.2d
agree that
adjudicating
one
an adverse ac-
In reviewing
presiding
the
official’s deci-
tion in
illegal
which a claim of
retaliation is
sion,
“give
the MSPB and this court must
made,
which,
apply
must
four tests
as stat-
judgment by
deference
to the
each
ed in Hagmeyer
States,
v. United
757 F.2d
employee’s
of
light
the
1281,
(Fed.Cir.1985),
are as follows:
agency’s
the
person-
assessment of its own
In
petitioner
order for
prevail
to
on his
nel needs and standards.” Lisiecki v. Mer-
contention,
illegal
he has
[of
retaliation]
Board,
Systems
it
Protection
769 F.2d
(1)
the burden
showing
protect-
a
—
1558,
(Fed.Cir.1985),
denied,
made, (2)
ed
cert.
disclosure was
the accused
disclosure, (3)
official
—,
knew of the
retalia-
U.S.
106 S.Ct.
interpreting
then new. The con-
a statute
protection of whistleblowers are—
clusion must
that this court in Sulli-
follow
complementary, but sometimes
undertaking
coun-
Hagmeyer
van and
[A]
* *
tervailing, purpose
*.
reassign
exactly
tests
tasks
to the four
the
they
perform,
simply
were to
but
iden-
A violation position of section is shown better as a result the exercise * * * (or applicant when an em- of than employee for conduct he would ployment) occupied nothing.” that he en- have establishes or she he done gaged protected by in sec- We in the activity this U.S. at 285. find that context of tion; issues, or she subsequently inquiry only covers not exists, by treated in an em- a retaliatory adverse fashion whether motive but ployer; independent and that is a causal also there there connec- whether are protected activity grounds initiating against between an action * * * action(s). the adverse employee. The causal Act, ample legislative
We conclude the interrelation of the citation of Frazier, fourth tests is that under test history, third and and affirmed having knowledge pro if of the officials Frazier, court that reviewed the D.C. Cir- disclosures, slight and even tected involve cuit. them, charge advising are or telegraphic removal of the whistle- The effectuating summary of the inadequate per tests, or blower for misconduct four and Hagmeyer, Sullivan formance, may justify an inference of capable of misconstruction as to test (3); retaliatory motive sufficient for test petitioner shown the fact our has mis scrutiny intensity but then a careful believe, construed it. We to reflect necessary to retaliate is their motive court, true intent of this should be weighed gravi under test to be with the stated as follows: ty charged, inadequa or of the misconduct (3) The adverse action under review duties, cy performance of so that the could, circumstances, have trier of fact can make an informed and been retaliation. reasoned determination whether the “nex findings presid- conclusions of the stated, Judge us” exists. As Nies concur ing official substantially show this is Sullivan, ring in mere agency fact the applied, test he and therefore good against has a case does us shows no basis for reversal remand. not win the case for the if the findings reflect as to nexus that the evidence shows that the motive for invok petitioner’s inadequate concerns about per- inadequate perform the misconduct or *5 genuine, but, regards formance were as discharge predomi ance as a reason for transfer to more manage- difficult tasks retaliation, nantly making the asserted rea allegedly perform, knew he could not pretextual establishing sons the “nex retaliation, which he however, must, times, us.” asserts was Test he com- applied plained in a manner to at the time the “countervail” test new work was too easy hand, for him. On the other officials transfer, concerned with the and the ad- is, if, here, Our conclusion unlike action, verse targets were not direct Sullivan, separation a reasonable is main “protected argues disclosures.” Petitioner any targets tained between “protect they had indirect concerns: for their own ed may disclosures” feel who themselves performance they records needed an un- personally injured by whistleblower, staff, complaining such as as- initiating deciding and the offi- suredly suppose was not. We among action, cials of the adverse and if the management members of the team it would charges proceeding considered in the do impossible often be persons to find not “protected include the disclosures” completely minds as blank slates about a themselves, then the determination of potential whistleblower’s case as those of “nexus” preempt- under test will not be jurors be, supposed are concerning cases ed because test results conclusions they requires are to hear. All law favorable to the whistleblower. Petition- separation their reasonable from the argument er’s whist- preemption for such is there- fire, leblower’s direct line of rejected. fore and from the contrary holding A would counterblasts of those the Congress undermine the intent of whistleblower that un- injured, has and this is satisfactory employees found to have exist- should not be al- Any ed. persons lowed to weak motive of “protected use such disclosures” to shield retaliate against expected themselves would not be adverse actions to override obligation good would otherwise their result from their der- act faith and clearly perceived uphold all, elictions. This intent legal the law. After inde- passage pendence soon after of the Civil of the MSPB is futile to take care 1978, by Service Reform Act of process one of the of due concerns if involved agency agencies, MSPB, up set to administer officials must also wholly be as disinterest- be, impartial as MSPB ed finds, effect,
is. The official ACCOUNTING, INC., PAPERLESS imaginary supervisor who knew Plaintiff-Appellant, nothing whistleblowing would have objective peti- led facts to find been BAY AREA RAPID TRANSIT performance inadequate. tioner’s SYSTEM, Defendant-Appellee. 86-597, Appeal
Conclusion Nos. 86-756. presid- We hold that the decisions Appeals, United States Court of petition- official and MSPB that the Federal Circuit. unacceptable, er’s Oct. a reasonable to im- prove, and that his removal was not in protected activities,
retaliation for his are
supported by substantial evidence are capricious, arbitrary contrary
law, nor an abuse of discretion or effected
by inappropriate procedure.
AFFIRMED.
NIES, Judge, concurring. Circuit respectfully agree
I I thorough- concur.
ly that the decision on the four
requirements requires clarifica- respect
tion with meaning of “retali- agree petitioner’s
ation.” also inter-
pretation part eliminates Hag- However,
meyer test. Ias understand the
majority’s interpretation, majority sepa- parts,
rates “nexus” into two an inference and a conclusion under my view, part (3) means,
In as stated in
Frazier, that, subsequent engaging
protected activity, treat-
ed in an employer. adverse fashion words, part (3) simply other relates time of the adverse action. This also
appears to tome be the idea in Hagmeyer using “retaliation,” the word which con- in response notes action prior ac- In setting tion. out required sequence events, part (3) meaning has apart from the fact that an adverse action before the board. The adverse action must have oc- curred Sim- activity. after ilarly, would read in part “retaliation” to mean than an subsequently. adverse action occurred