720 Fed.Appx. 912 (10th Cir. 2017), 17-9504, Mottas v. Department of Army

Docket Nº:17-9504
Citation:720 Fed.Appx. 912
Opinion Judge:Timothy M. Tymkovich, C.J.
Party Name:ANTHONY J. MOTTAS, Petitioner, v. DEPARTMENT OF ARMY, Respondent.
Attorney:For Anthony J. Mottas, Petitioner: Alan V. Johnson, Sloan, Eisenbarth, Glassman, McEntire & Jarboe, Topeka, KS. For Department of Army, Respondent: Eric L. Carter, Department of Army, Office of Staff Judge Advocate, Fort Riley, KS; Allison Kidd-Miller, Robert E. Kirschman, United States Departmen...
Judge Panel:Before TYMKOVICH, Chief Judge, HARTZ and O'BRIEN, Circuit Judges.
Case Date:December 27, 2017
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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720 Fed.Appx. 912 (10th Cir. 2017)

ANTHONY J. MOTTAS, Petitioner,

v.

DEPARTMENT OF ARMY, Respondent.

No. 17-9504

United States Court of Appeals, Tenth Circuit

December 27, 2017

(MSPB No. DE-1221-16-0415-W-1). (Petition for Review).

COUNSEL:

For Anthony J. Mottas, Petitioner: Alan V. Johnson, Sloan, Eisenbarth, Glassman, McEntire & Jarboe, Topeka, KS.

For Department of Army, Respondent: Eric L. Carter, Department of Army, Office of Staff Judge Advocate, Fort Riley, KS; Allison Kidd-Miller, Robert E. Kirschman, United States Department of Justice, Washington, DC; Shari A. Rose, U.S. Department of Justice, Washington, DC.

Before TYMKOVICH, Chief Judge, HARTZ and O'BRIEN, Circuit Judges.

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ORDER AND JUDGMENT[*]

Timothy M. Tymkovich, C.J.

Anthony Mottas appeals the decision of the Merit Systems Protection Board (Board) denying his request for corrective action on his claim that he was subjected to personnel actions in retaliation for his whistleblowing communication. We have jurisdiction under 5 U.S.C. § 7703,1 and we affirm.

I. BACKGROUND

At the relevant times, Mr. Mottas was employed as a file clerk at the Department

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of the Army's Irwin Army Community Hospital (Agency). He also helped at the front desk. On February 23, 2016, Mr. Mottas submitted an action request form to the Inspector General expressing two concerns relating to his workplace: (1) for the preceding six years, he and other employees were not given required daily breaks despite his requests to his supervisors; and (2) he was assigned to do more work without receiving a job reclassification. This disclosure arguably implicated Cynthia Sallee, Mr. Mottas's direct supervisor, and Major Gordon Lyons, a member of Mr. Mottas's chain of command.

On April 1, 2016, Shellie Bolger, an Agency employee, sent an email to her supervisor, Barbara Garber, stating she had heard that Mr. Mottas was going to be assigned to work with her again after several months of working apart. Ms. Bolger reported that when she had worked with him in the past, he had read the medical files in the file room and questioned her regarding the various medical providers' actions. She indicated she did not agree with Mr. Mottas's practice of reading other people's medical files. Ms. Garber informed Major Lyons, who in turn informed Daniel Key, Compliance Specialist for the Health Insurance Portability and Accountability Act (HIPAA) . Mr. Key then investigated whether Mr. Mottas had violated HIPAA .

On April 5, 2016, four days after the Bolger email, Ms. Sallee placed Mr. Mottas on paid administrative leave for April 5 and 6, 2016. From April 7 to June 2, 2016, he was detailed to work in the Outpatient Records Department. Following an investigation, on June 1, 2016, the Agency issued Mr. Mottas a notice of counseling for violating HIPAA by reading the medical files. He was informed that his detail to Outpatient Medical Records would end, and he would be detailed to work in the Department of Behavioral Health beginning on June 2, 2016. There, he would perform the duties of a file clerk, but would have no front-desk duties. He was further informed that on June 16, 2016, he would begin a rotation to the Department's various file rooms.

Mr. Mottas filed an Individual Right of Action with the Board alleging he was retaliated against for his Inspector General disclosure about daily breaks and job duties. Following a hearing, an administrative judge (AJ) determined that Mr. Mottas established a prima facie case of reprisal for making an Inspector General disclosure by establishing that his disclosure— the February 23, 2016 action request form— was protected under the Whistleblower Protection Enhancement Act and contributed to his job reassignments. In addition, the AJ ruled Mr. Mottas showed that the three challenged actions— placement on administrative leave, detail to Outpatient Records, and detail to rotate among the Department of Behavioral Health's file rooms— met the statutory definition of " personnel actions," see 5 U.S.C. § 2302(a)(2)(A)(iv) & (xii); 5 C.F.R. § 1209.4(a)(3) & (4) (defining " personnel action" to include " disciplinary or corrective action" and " [a] detail, transfer, or reassignment" ).

The AJ then held that the Agency established by clear and convincing evidence that it would have taken the same actions even absent Mr. Mottas's Inspector General disclosure. Therefore, the AJ denied Mr. Mottas's request for corrective action. Mr. Mottas did not petition for further agency review, so the AJ's decision became the Board's final decision. Mr. Mottas now appeals to this court.2

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