Agoranos v. Department of Justice, 020915 FEDFED, 2014-3209

Docket Nº:2014-3209
Opinion Judge:PER CURIAM
Party Name:PETER J. AGORANOS, Petitioner v. DEPARTMENT OF JUSTICE, Respondent
Attorney:Peter J. Agoranos, Gilberts, IL, pro se. Kara Westercamp, Commercial Litigation Branch Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by Elizabeth Anne Speck, Joyce R. Branda, Robert E. Kirschman, Jr., Allison Kidd-Miller.
Judge Panel:Before Lourie, O'Malley, and Reyna, Circuit Judges.
Case Date:February 09, 2015
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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PETER J. AGORANOS, Petitioner

v.

DEPARTMENT OF JUSTICE, Respondent

No. 2014-3209

United States Court of Appeals, Federal Circuit

February 9, 2015

This disposition is nonprecedential.

Petition for review of the Merit Systems Protection Board in No. CH-0432-11-0182-B-1, CH-1221-11-0466-B-1.

Peter J. Agoranos, Gilberts, IL, pro se.

Kara Westercamp, Commercial Litigation Branch Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by Elizabeth Anne Speck, Joyce R. Branda, Robert E. Kirschman, Jr., Allison Kidd-Miller.

Before Lourie, O'Malley, and Reyna, Circuit Judges.

PER CURIAM

Peter J. Agoranos ("Agoranos") appeals the decision of the Merit System Protection Board ("Board") affirming his removal from the position of Intelligence Research Specialist with the Drug Enforcement Administration ("DEA" or "agency") and denying his Individual Right of Action ("IRA") appeal requesting corrective action under the Whistleblower Protection Act, 5 U.S.C. § 2302(b) (2012) ("WPA"). Because we find that substantial evidence supports the Board's conclusion that the DEA demonstrated by clear and convincing evidence that Agoranos would have been removed even if he had not made a disclosure protected by the WPA, we affirm.

I.

A.

Agoranos served as an Intelligence Research Specialist for the DEA's Chicago Field Division from November 4, 2001 until his removal on November 9, 2010. Agoranos began working under the supervision of Group Supervisor Lynette Georgevich. His initial job performance ratings were "acceptable, " but by 2003 his evaluation identified a need for performance improvement and coworkers had entered complaints regarding the quality of Agoranos's work product and interpersonal skills. Georgevich consequently issued a written notice on January 27, 2004, informing Agoranos that he needed to improve his work product. In response, Agoranos filed a grievance against Georgevich.

Although Agoranos's interactions with coworkers continued to be strained in 2005, Georgevich again gave Agoranos an acceptable rating for his job performance. In 2006, Agoranos's performance declined once more. After another complaint by Agoranos against Georgevich, Georgevich felt she could no longer effectively manage Agoranos, and the DEA reassigned Agoranos to Field Intelligence Manager Patrick O'Dea in October 2006. Agoranos's performance continued to wane, meriting a "less than acceptable level" by 2007. Special Agent in Charge Gary Olenkiewicz also "strongly recommended" that Agoranos seek a psychological exam in June 2007. Because of the low performance rating, O'Dea issued a performance expectations memorandum outlining Agoranos's job expectations, but Agoranos failed to meet those expectations due to, inter alia, poor writing, inadequate reports, and inaccurate information. O'Dea thus denied Agoranos a within-grade pay increase in 2008 because of his inability to perform at acceptable levels, and gave him an "unacceptable" performance rating on his 2008 evaluation. From July 2007 to June 2009, Agoranos also requested reassignment to vacant Intelligence Research Specialist positions thirty-one times-the DEA rejected all of his requests.

After his 2008 evaluation, the DEA placed Agoranos on a performance improvement plan ("PIP") under the supervision of Group Supervisor Kevin Quinlan. Quinlan met with Agoranos weekly, but Agoranos still failed to consistently correct writing deficiencies, such as reporting inaccuracies, grammar, and formatting. Based on the PIP results, on May 6, 2009, O'Dea recommended that Agora-nos be removed from his position as an Intelligence Research Specialist. The DEA issued a notice of proposed removal on January 7, 2010, requesting Agoranos's removal due to his alleged failure to achieve acceptable performance in Critical Element 1 – Technical Competence/Results and Critical Element 2 – Communications. Special Agent James Reed acted as the deciding official in Agoranos's removal.

Agoranos claims to have made a series of disclosures from 2004 through 2007 that are the crux of this appeal. Agoranos asserts that he informed Georgevich in March 2004 that a coworker had solicited $10 from other employees to enter into a pool to guess when another coworker would have a baby. Agoranos also claims to have informed Georgevich in May 2005 that he overheard a special agent and two task work officers discussing the possibility of using time spent performing surveillance work to also look for vacant lots to build custom homes. Finally, it is undisputed that, in February 2007, Agoranos reported to supervisor Timothy McCormick that he observed DEA employees selling betting squares for an office pool for the upcoming Super Bowl. Resident Agent in Charge Mark Giuffre and Diversion Group Supervisor James Portner investigated the accusations, and eventually reprimanded one employee.

Special Agent Reed testified that he reviewed all materials associated with Agoranos's notice of proposed removal, including those materials relating to Agoranos's claim that he had made whistleblower disclosures, and concluded that removal was warranted. Special Agent Reed also testified that he spoke with an attorney at the Chief Counsel's office during his investigation, and reviewed Agoranos's entire personnel file, even though it was not part of the proposed removal record. The DEA officially removed Agoranos on November 9, 2010.

B.

Agoranos filed two separate challenges related to his removal. He first submitted a whistleblower complaint with the Office of Special Counsel ("OSC") on October 15, 2010. Agoranos alleged that his three whistleblower disclosures led to eight personnel actions: (1) October 2006 reassignment to a different supervisor; (2) June 2007 recommendation that Agoranos receive a psychological evaluation; (3) July 2007 through June 2009 failure to select Agoranos for thirty-one open Intelligence Research Specialist positions; (4) 2007 and 2008 assignment of unacceptable performance ratings; (5) 2008 denial of within-grade pay increase; (6) February 2009 placement on a PIP; (7) January 2010 issuance of a notice of proposed removal; and (8) November 2010 removal.

OSC reviewed Agoranos's complaint, but concluded that there were no reasonable grounds to find that the DEA took any action due to a prohibited personnel practice. OSC found that, for the March 2004 disclosure, there was no significant adverse action close in time to the disclosure, and for the May 2005 disclosure, Agoranos had no firsthand evidence that the employees at issue had taken any impermissible actions. For the February 2007 disclosure, OSC found that coworkers made hostile comments to Agoranos and ostracized him due to the disclosure, leading Agoranos to seek mental health treatment, but also found that he would be unlikely to be successful in alleging retaliatory action under 5 U.S.C. § 2302(b)(8) because he could not prove that the disclosure was a contributing factor in subsequent adverse personnel actions. Because OSC declined to further investigate his complaint, Agoranos filed an IRA appeal requesting corrective action with the Board on April 8, 2011.

On November 29, 2010, Agoranos separately appealed to the Board, challenging his removal...

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