U.S. Merit Systems Protection Board 
Case Report for June 8, 2012

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Note:  These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.


Petitioner:  Robert Wade Whitmore
Repondent:  Department of Labor
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2011-3084
Issuance Date:  May 30, 3084

Whistleblower Protection Act
 - Clear and Convincing Evidence

    Whitmore appealed to the court from the Board's decision which affirmed his removal for disruptive and insubordinate behavior and found that he did not prove his affirmative defense that the removal constituted unlawful retaliation for lawful whistleblowing activities.  Whitmore had a 37-year career with the agency's Bureau of Labor and Statistics, serving as the head of the Recordkeeping Requirements group since 1987.  For his entire career prior to 2005, Whitmore regularly received better than satisfactory performance reviews, bonuses, and awards, and was never subject to any discipline.  In 2005, Whitmore began making public disclosures alleging that the Occupational Safety and Health Administration (OSHA) was failing to enforce its recordkeeping requirements and acquiescing in industry reports of impossibly low numbers of injuries and illnesses, which allegedly hampered OSHA's ability to target inspections and undertake enforcement actions to prevent such injuries and illnesses.  After an April 2005 Oakland Tribune article in which Whitmore was quoted as saying he found the reported injury rates in the dangerous work of construction on the Bay Bridge were "hard to believe, and require verification," and also stated that the company's practices pressured wokers to avoid reporting injuries, Whitmore's performance review was changed from "highly effective" to "meets expectations," the first performance review in 35 years in which he was not rated as "outstanding" or "exceeds expectations."  There followed a two-year period in which Whitmore made additional whistleblowing disclosures, throughout which time tension between Whitmore and his supervisors continually increased until reaching a breaking point in July 2007.  On July 10 of that year there was a confrontation between Whitmore and his supervisor, Dubois, in which  each called the other a "chickenshit," both men allegedly spit on each other, and Whitmore told Dubois that if he ever spit on him again, he would "knock him into the basement."  Whitmore then had an encounter with Dave Schmidt, a high level official.  Whitmore claimed Schmidt would not allow him to pass to reach another official's office.  Whitmore than physically pushed past Schmidt while yelling "get out of my way," and possibly also spit on Schmidt.  A week after the July 10 incident, Whitmore was placed on paid administrative leave, where he remained for two years until his ultimate removal. 

     After Whitmore was placed on administrative leave, the agency hired David Morgan, a former OSHA employee, to investigate the July 10 incident and concerns about a hostile working environment.  Whitmore contended that Morgan was biased and was not hired to conduct an impartial investigation, but rather to build a case against Whitmore to legally support his removal.  He cited, among other things an email in which Morgan referred to himself and OSHA collectively as "we," expressed hope that "we" would "kick [the whistleblower's] ass this time," and called Whitmore a "lying dog."  Whitmore further contended that Morgan pressured witnesses and tampered with their statements to make his report more favorable to OSHA.  Morgan's November 2007 report concluded that Whitmore's conduct warranted "permanent action" against Whitmore to protect OSHA's other employees from harm.  Two days prior to the issuance of Morgan's report, an agency official authored a proposal notice for Whitmore's removal.  That proposal was not acted on, however.  A different official (Witt) proposed the appellant's removal in April 2009 on charges of disruptive and intimidating behavior, conduct unbecoming a supervisor,and inappropriate conduct in the workplace.  The July 10, 2007 incident formed the basis for the first charge, while the latter two charges were based on the several emails concerning Whitmore's disputes with Dubois in which he took an accusatory tone with Dubois and copied his staff and other OSHA management officials.  The substance of the 2009 proposal notice was substantively the same as the 2007 proposal notice.  The deciding official (Shalhoub) issued a decision effecting Whitmore's removal on July 31, 2009.

     On appeal to the MSPB, the administrative judge approved only 3 of the 12 witnesses requested by Whitmore, excluding Morgan and the witnesses interviewed by Morgan, as well as Dr. Finkel, who the appellant alleged was a whistleblower previously removed from his position and investigated by Morgan.  In her initial decision, the judge found that Whitmore had made protected disclosures, and that these disclosures were a contributing factor in the removal action.  The judge ultimately rejected the appellant's whistleblowing defense, finding that the agency proved by clear and convincing evidence that the agency would have removed Whitmore regardless of his protected disclosures.

Holdings:  The court vacated the Board's decision and remanded the case for further fact finding on the basis that the Board excluded or ignored evidence offered by Whitmore necessary to adjudicate his claim of retaliation for protected whistleblower activity and otherwise applied the law incorrectly:

1.  Analysis of a whistleblower defense takes place within a burden shifting scheme, wherein the agency must first prove its case for removal by preponderant evidence, then the former employee must prove by preponderant evidence that he made a protected disclosure under 5 U.S.C. 2302(b)(8) that was a contributing factor to the employee's termination.  If the employee establishes this prima facie case of reprisal for whistleblowing, the burden of persuasion shifts to the agency to show by clear and convincing evidence that it would have taken the same personnel action in the absence of such disclosure.  

2.  The "clear and convincing evidence" standard is understood to be "reserved to protect particularly important interests in a limited number of civil cases."  The legislative history of the Whistleblower Protection Act indicates that this intentionally high burden of proof was selected for two reasons:  First, this burden of proof comes into play only if the employee has established that the whistleblowing was a contributing factor in the action, i.e., that the agency action was "tainted"; second, this heightened burden of proof recognizes that when it comes to proving the basis for an agency's decision, the agency controls most of the cards.  

3.  Whether evidence is sufficiently clear and convincing to carry this burden of proof cannot be evaluated by looking only at the evidence that supports the conclusion reached.  Evidence only clearly and convincingly supports a conclusion when it does so in the aggregate considering all the pertinent evidence in the record, and despite the evidence that fairly detracts from that conclusion.  It is error for the MSPB to not evaluate all the pertinent evidence in determining whether an element of a claim or defense as been proven adequately.  

4.  Under Carr v. Social Security Administration, 185 F.3d 1318 (Fed. Cir. 1999), the Board must weigh 3 factors in making a determination whether an agency has met its burden via clear and convincing evidence:  (1) the strength of the agency's evidence in support of its personnel 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 are not whistleblowers.  

5.  The judge erred in summarily excluding David Morgan and his interviewees from testifying at the hearing.  The "central issue" in the judge's mind was the July 10, 2007 incident and the charges leveled against Whitmore; she found that the alleged bias and impropriety pervading the Morgan investigation was not relevant to the charges.  But such evidence was clearly pertinent to the first two Carr factors.  It was also error to exclude the testimony of Dr. Finkel, an OSHA whistleblower previously removed from his position and investigated by Morgan, as that is relevant to the third Carr factor.

6.  The judge erred in finding "no evidence" to support a finding of a retaliatory motive, since the proposing and deciding officials were outside Whitmore's chain of command, were not directly implicated in any of Whitmore's whistleblowing, and had only limited knowledge of Whitmore's whistleblowing activity.  

a.  To find zero evidence suggesting any retaliatory motive is to take an unduly dismissive and restrictive view of Carr factor two.  Those 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 evidence plainly shows awareness and concern regarding the substance of Whitmore's disclosures by many high-level OSHA managers, including the proposing and deciding officials in this case.

b.  When a whistleblower makes such highly critical accusations of the agency's conduct, an agency official merely being outside that whistleblower's chain of command, not directly involved in alleged retaliatory actions, and not personally named in the whistleblower's disclosures, is insufficient to remove the possibility of a retaliatory motive or retaliatory influence on the whistleblower's treatment.

c.  To the extent Morgan's report reflected and perpetuated retaliatory motives of the OSHA officials with whom Morgan worked and communicated, the report might have influenced the proposing and deciding officials for purposes of Carr factor two.

7.  The Board took an overly narrow view of what is required to be "similarly situated" for purposes of Carr factor three.  

a.  The Board has indicated that for employees to be "similarly situated," all relevant aspects of the appellant's employment situation must be "nearly identical" to the comparative employees.  The court did not endorse such a highly restrictive view of Carr factor three.  Differences in kinds and degrees of conduct between otherwise similarly situated persons within an agency can and should be accounted for to arrive at a well reasoned conclusion regarding this factor.  By deeming Dubois not "similarly situated," the judge did not examine how the disparity in treatment between Whitmore and Dubois should inform the Carr factor three analysis.  

b.  Although Carr does not impose an affirmative burden on the agency to produce evidence with respect to each and every one of the three Carr factors to weigh them each individually in the agency's favor, the agency is required to come forward with all reasonably pertinent evidence relating to Carr factor three to the extent such evidence exists, and failure to do do may be at the agency's peril.  Stated differently, the absence of any evidence concerning this factor may well cause the agency to fail to prove its case overall.  

c.  On remand, the judge must reconsider the evidence surrounding Dubois's conduct and lack of any repercussions, along with the testimony of Dr. Finkel, consistent with the scope of Carr factor three expressed in this opinion.

8.  The judge erred by focusing so narrowly on the 3 charges and various specifications against Witmore, and failing to address Whitmore's theory of the case.  He contended that, beginning in 2005 when his whistleblowing started, the agency and various managers at OSHA began to systematically create a hostile work environment for him as retaliation, primarily by making his ability to take leave to which he was entitled very difficult, and preventing him from obtaining any relief from other OSHA officials.  Eventually, as intended by the agency, the stress of this environment caused Whitmore such aggravation that he acted out in various ways against his better judgment.  Morgan was then brought in as a hired gun to help build a case that would withstand legal scrutiny for OSHA's removal of Whitmore, and Witt and Shalhoub were then brought in to create an appearance of impartiality in the proposing and deciding officials, since they were both outside Whitmore's chain of command.  While the court did not presume to re-weigh the evidence on appeal, it stated that the most prominent evidence in support of Whitmore's theory must be examined and re-weighed on remand under the proper clear and convincing evidence standard.  

The U.S. Court of Appeals for the Federal Circuit issued nonprecedential decisions in the followings cases:

Bouchard v. Merit Systems Protection Board, No. 2011-3125 (May 29, 2012) (MSPB Docket No. AT-1221-10-0506-W-1) (affirming per Rule 36 the Board's decision, which dismissed an IRA appeal for lack of jurisdiction on the ground that Bouchard failed to make a nonfrivolous allegation of making a protected disclosure)

Alonzo v. Department of Veterans Affairs, No. 2012-3010 (June 6, 2012) (MSPB Docket No. SF-0752-10-0202-I-1) (affirming the Board's decision, which rejected Alonzo's claim that his disability retirement constituted an constructive removal)

Orcino v. Office of Personnel Management, No. 2012-3034 (June 8, 2012) (MSPB Docket No. SF-0831-11-0111-I-1) (affirming the Board's decision, which denied Orcino's request to make a deposit to the Civil Service Retirement System)

Boutin v. U.S. Postal Service, No. 2012-3018 (June 8, 2012) (MSPB Docket No. PH-0353-11-0064-I-1) (affirming the Board's decision, which found that the agency did not violate Boutin's restoration rights)

MSPB Notice of Proposed Rulemaking

     On June 7, 2012, the MSPB issued a notice of proposed rulemaking in the Federal Register, 77 Fed. Reg. 33663 (https://federalregister.gov/a/2012-13655) (link to PDF version), that would amend its rules of practice and procedure in 5 C.F.R. Parts 1200, 1201, 1203, 1208, and 1209 in order to improve and update the MSPB's adjudicatory processes.  The proposed rule is the first comprehensive review of MSPB's adjudicatory procedures undertaken since the establishment of MSPB in 1979.  It is the product of recommendations by an internal working group, after consideration of comments from MSPB stakeholders and review by the Board members.  Comments must be submitted no later than July 23, 2012.  All comments received will be included in the public docket without change and will be made available at www.mspb.gov/regulatoryreview/index.htm.  Comments may be submitted via email (to [email protected] with the subject line indicating that the submission contains comments to the MSPB's proposed rule), fax, mail or other commercial delivery, or hand delivery or courier.  Comments submitted by email can be contained in the body of the email message or as an attachment in any common electronic format, including word processing applications, HTML, and PDF.  If possible, commenters are asked to use a text format and not an image format for attachments.  

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