Clark v. Department of Army

• Decision Date: 01 July 1993
• Docket Number: No. 92-3296,92-3296
• Citation: 997 F.2d 1466
• Parties: 8 IER Cases 963 Janet M. CLARK, Petitioner, v. DEPARTMENT OF the ARMY, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1466

997 F.2d 1466

8 IER Cases 963

Janet M. CLARK, Petitioner, v. DEPARTMENT OF the ARMY, Respondent.

No. 92-3296.

United States Court of Appeals Federal Circuit.

July 1, 1993.

Ernest C. Hadley, of Wareham, MA, argued for petitioner.

Jeri Kaylene Somers, Atty., Commercial Litigation Branch, Dept. of Justice, Washington, DC, argued for respondent. With her on the brief were Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director and Thomas W. Petersen, Asst. Director. Also on the brief was Michael J. Davidson, Captain, Office of the Judge Advocate General, Dept. of the Army, of counsel.

Before NEWMAN, PLAGER, and LOURIE, Circuit Judges.

PLAGER, Circuit Judge.

This case raises several previously unsettled issues regarding the claim of retaliation for whistleblowing. Janet Clark, the petitioner, appeals a decision of the Merit Systems Protection Board (MSPB or Board) that upheld two Department of the Army (Army) actions: demoting her through reduction-in-force procedures, and removing her for failure to follow instructions and delay in carrying out instructions. Clark v. Department of Army, Nos. CH-0752-91-0717-I-1 and CH-0351-91-0797-I-1 (MSPB Jan. 17, 1992). Although Clark alleged that these actions were taken in reprisal for whistleblowing disclosures, the Board determined otherwise, on the basis that Clark's disclosures were not a contributing factor in the personnel actions. We affirm.

BACKGROUND AND PROCEDURAL HISTORY

At the time of her removal, Clark had been employed by the Department of the Army (Army) for approximately twenty-six years. In 1986, while she was a Production Controller, GS-8, at Savanna Army Depot Activity (SADA), she complained to the Army's Office of Inspector General (OIG) about misuse of government telephones, drinking on the job, and mismanagement of time and materials.

Shortly after Clark's reassignment to the position of Computer Assistant, GS-8, there was a change in command at SADA. In July 1989 Lt. Col. John Phillis, Jr. became Commander at SADA, and in August 1989 Captain Michael Demcko became Chief of SADA's Mission Division and Clark's immediate supervisor. They were not affected by or involved in her previous complaints to OIG, but they may have been informed of them. In the fall of 1989, Clark reported the use of 'bootleg' computer software in government computers to Capt. Demcko and Lt. Col. Phillis.

In May 1990 SADA was directed to reduce its staffing level because of insufficient funding. In response, Capt. Demcko identified nine positions, including Clark's, that would be subject to a reduction-in-force (RIF). Clark was informed on August 6, 1990 that her position was being abolished. She was offered and she accepted the position of Supply Clerk (Typing), GS-5, in the Installation Supply Branch of SADA's Mission Division.

Clark's new duties included processing requisition forms for supplies. In September 1990 she reported to her supervisor, Marcia Hansen, and Capt. Demcko that special order safety shoes were being improperly ordered. In October 1990, Clark contacted OIG to complain that items such as safety shoes and prescription safety glasses were improperly ordered through a local source rather than the central federal supply system, that requisition forms were incorrectly coded and improperly authorized, that vendor payments were not processed promptly, that Imprest Fund vouchers were completed improperly, that supply personnel had inadequate training, and that an employee was selling Avon products during work. Hansen and Capt. Demcko knew of Clark's reports to OIG.

On December 6, 1990 the Chief of Installation Support Division appointed Clark as an Alternate Imprest Fund Cashier. This position required Clark to maintain $3,000 in an account to provide Imprest Fund services when the primary cashier, Donna Stotler, was absent, and to maintain adequate additional funds to cover disbursements. In February 1991 Clark reported to her acting supervisor that a co-worker had violated computer security by failing to 'log off' her computer.

Meanwhile, Clark had filed a complaint with the Office of Special Counsel (OSC) alleging that the RIF abolishing her position was a reprisal for her whistleblowing. OSC informed Clark on February 6, 1991 that it had found no evidence to support her allegation, and that the timing of events made it unlikely that the RIF was a reprisal. (Clark's complaints to OIG in October 1990 did not occur until after the RIF decision was made in August 1990.)

On Friday, March 1, 1991, Stotler told Clark to sign an interim cash receipt for money from the Imprest Fund. Clark refused. Hansen then instructed Clark to sign for the funds. A heated discussion ensued, and Clark again refused to sign. On Monday, March 4, 1991, Hansen presented Clark with a memorandum that stated, in part:

2. This memorandum constitutes a direct order which orders you to sign for the cash allotment which is necessary for you to properly function and assume your responsibilities as the Alternate Imprest Fund Cashier. On 1 March 1991, you refused to perform this function.

3. Failure to follow this order will be considered insubordination and may be grounds for disciplinary action up to and including removal.

At Clark's request, Hansen called higher level officials to confirm that Clark was required to sign for receipt of the funds. Clark continued to refuse to sign for the money. On March 6, 1991 Hansen finally asked Capt. Demcko to order Clark to sign the receipt for the funds. When he ordered her to do so within fifteen minutes, Clark obeyed.

On April 5, 1991 she filed a complaint with OSC alleging that she had been threatened with disciplinary action, including possible removal, in reprisal for her whistleblowing disclosures to OIG. OSC declined to pursue the matter because the information she supplied indicated no connection between the threat and her disclosures; instead, it appeared that her supervisors had threatened her with disciplinary action in March because of her refusal to perform her duties.

Clark had been notified, through verbal instructions and by a January 16, 1991 memorandum, of the importance of expediting high priority 'Desert Storm' requisitions. Despite this, she continued to process high priority requisitions through the slower federal supply system. On April 8 and 10, 1991 and May 8, 1991 Clark altered the supply source on four high priority 'Desert Storm' requisition forms without authorization; she ordered the repair parts through the federal supply system rather than through the local vendors which were requested.

On June 17, 1991 Capt. Demcko proposed Clark's removal from federal service on the basis that her failure to sign for the Imprest Funds and her improper processing of specific purchase requisitions constituted a defiance of authority, failure to follow instructions, and delay in following instructions. Clark complained to OSC that her proposed removal was a reprisal for whistleblowing, and asked OSC to seek a stay of the action, but OSC declined to pursue the matter. After an oral and written reply, Lt. Col. Phillis removed Clark on July 30, 1991.

Prior to her July removal for cause, Clark had filed with the MSPB an appeal of the RIF removal, pursuant to the Individual Right of Action (IRA) provisions of the Whistleblower Protection Act. 5 U.S.C. § 1221 (Supp. I 1989). On June 27, 1991 that appeal was dismissed by the MSPB without prejudice, pending resolution of the proposed removal for cause. After her removal in July 1991, Clark refiled her previous appeal of the RIF and appealed her removal for cause. The two appeals were consolidated.

On January 17, 1992 the MSPB Administrative Judge's (AJ) initial decision upheld the Army's actions. The AJ found that Clark had disobeyed orders to sign for imprest funds, and had disobeyed instructions to honor high priority requests to purchase supplies from local sources. The AJ found Clark's explanations for her behavior to be inconsistent and incredible, and concluded that the Army had sustained its removal charges against Clark.

The AJ then addressed Clark's allegations that the RIF and removal for cause were taken in reprisal for her whistleblowing disclosures. He expressed doubt that Clark's disclosures rose to the level of protected 'whistleblowing' under 5 U.S.C. § 2302(b)(8) (Supp. I 1989). However, he found it unnecessary to address that issue because he concluded that Clark had not proven that her disclosures were a contributing factor in the personnel actions. The AJ's initial decision became final on February 21, 1992 when neither party filed a petition for review with the Board. Clark then appealed here.

THE WHISTLEBLOWER PROTECTION ACT

Section 2302(b)(8) of Title 5 of the United States Code (Supp. I 1989) prohibits adverse personnel actions against federal government employees in reprisal for certain 'whistleblowing' activities. ¹ Section 2302(b)(8) was originally enacted as part of the Civil Service Reform Act of 1978 (CSRA), Pub.L. No. 95-454, § 101, 92 Stat. 1111, 1116 (1978) (codified at 5 U.S.C. § 2302(b)(8) (1988), prior to the 1989 amendment), which established "an extensive framework of merit principles and personnel procedures.... [and] detailed a host of 'prohibited personnel practices,' " among them reprisal for whistleblowing. Spruill v. Merit Sys. Protection Bd., 978 F.2d 679, 682 (Fed.Cir.1992).

In response to reports that the system was ineffective, Congress strengthened the protection afforded to whistleblowers by enacting the Whistleblower Protection Act of 1989 (WPA), Pub.L. No. 101-12, 103 Stat. 16 (1989) (codified in scattered sections of 5 U.S.C.). "The WPA substantially changed the role of the [Office of Special Counsel], revised the substantive provisions of the whistleblower defense, and created a new route in whistleblowing cases for employees to take in appealing agency discipline--the Individual Right of Action (IRA)." Spr...