Serrao v. Merit Systems Protection Bd.

• Decision Date: 17 September 1996
• Docket Number: No. 95-3562,95-3562
• Parties: Robert V. SERRAO, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1569

95 F.3d 1569

Robert V. SERRAO, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

No. 95-3562.

United States Court of Appeals, Federal Circuit.

Sept. 17, 1996.

Mitchell Kastner, Schneider, Freiberger & Kastner, Red Bank, NJ, for petitioner.

William A. Cardoza, Office of General Counsel, Merit Systems Protection Board, Washington, DC, for respondent. On the brief were Mary L. Jennings, Acting General Counsel, Patricia A. Price, Acting Assistant General Counsel, and Sherry A. Armstrong, Attorney.

Before NEWMAN, LOURIE, and SCHALL, Circuit Judges.

Opinion for the court filed by Circuit Judge SCHALL. Dissenting opinion filed by Circuit Judge NEWMAN.

SCHALL, Circuit Judge.

Robert V. Serrao petitions for review of the final decision of the Merit Systems Protection Board ("Board") in Serrao v. Department of Commerce, Docket No. NY-1221-95-0317-W-1. The March 21, 1995 initial decision of the Administrative Judge ("AJ") became the final decision of the Board after Serrao failed to file a petition for review. In his decision, the AJ dismissed for lack of jurisdiction the individual right of action ("IRA") appeal that Serrao sought to bring before the Board pursuant to the Whistleblower Protection Act of 1989, Pub.L. No. 101-12, 103 Stat. 16 (1989) (codified at scattered sections of 5 U.S.C.) ("WPA"). We affirm.

BACKGROUND

I.

Serrao is a Special Agent in the New York Field Office of the Office of Export Enforcement of the United States Department of Commerce ("agency"). On January 18, 1994, Josephine Fontana Moran, Serrao's supervisor, removed Serrao from the Kennedy Airport/New York City work rotation and assigned him to work in New York City.

The agency has an administrative grievance system. It is embodied in Department Administrative Order 202-771, dated March 18, 1986 (the "Grievance Order"). On February 3, 1994, Serrao exercised his rights under On February 19, 1994, pursuant to Section 6 of the Grievance Order, Serrao filed a formal grievance with Carl B. Ward, Chief of the Human Resources Division for the agency's Eastern Region. ¹ Serrao stated that the grievance was in response to Ms. Moran's denial of his February 3 informal grievance. He informed Mr. Ward that the relief he was requesting was "reinstatement to the JFK office rotation." In support of his formal grievance, Serrao submitted a document which he termed a "detailed response." In the "detailed response," Serrao made a series of charges against Ms. Moran. First, he wrote that Ms. Moran had conducted a "harassment campaign" against him over a two-year period. He suggested that this was because she believed that he was the anonymous source of information that led to a 1991 investigation by the agency's Office of Inspector General ("OIG") into allegations of misconduct on her part. These allegations included charges that Ms. Moran made personal telephone calls from her office and that she was given passing scores that she did not earn for quarterly firearms tests. Serrao asserted that Ms. Moran had confronted him several times during the OIG investigation, saying that she knew he was the source of the allegations against her. Serrao also charged that, in 1992, Ms. Moran had obstructed justice by ordering him to close out an undercover investigation. Serrao claimed that this action was in retaliation for his having refused (before she was his supervisor) to allow her to participate in the investigation. Serrao further charged that Ms. Moran had violated federal sick leave regulations. The record before us does not reveal how the formal grievance was resolved. It does not appear, however, that Serrao was reassigned to Kennedy Airport.

the system by filing an informal grievance with Ms. Moran pursuant to Section 5 of the Grievance Order. In it, he alleged that the action taking him off the Kennedy Airport/New York City work rotation was a "disciplinary action" that was indicative of "selective treatment" against him by Ms. Moran. Ms. Moran denied the grievance on February 14, stating that she had not changed Serrao's work station for disciplinary reasons, but rather, because of her concern over his "on-going uncooperative, unprofessional, and insubordinate behavior which is adversely affecting employee morale and office operation."

Meanwhile, on March 1, 1994, Serrao filed a second informal grievance with Ms. Moran. In it, he challenged an official reprimand that she issued to him on February 16 for "unprofessional, disrespectful and insubordinate conduct." Ms. Moran denied the grievance on March 16.

On March 10, 1994, Serrao filed a complaint with the United States Office of Special Counsel ("OSC"). ² Serrao stated that Ms. Moran had taken reprisal actions against him and that she had accused him of being the person who instigated the 1991 OIG investigation. Referring to the grievance that he initially had filed with Mr. Ward on February 19, Serrao stated:

I have recently filed a grievance against my supervisor, Special Agent in Charge (SAIC) of the New York Field Office[,] ... Josephine Fontana Moran. Initially, I filed an informal grievance which was denied by the SAIC. I followed the informal grievance with a formal grievance which was filed with my personnel office. The grievance was based on an harassment campaign waged against me by the SAIC for over a two year period.

I want at this time to file a complaint with the Office of Special Counsel ... against the SAIC claiming a prohibited personnel practice as she has threatened to take a personnel action against me as a result of my filing this grievance. Since the filing of this grievance, the SAIC has retaliated against me in the form of several adverse action forms and a written reprimand On March 26, 1994, Serrao filed another formal grievance with Mr. Ward. In it, he complained about Ms. Moran's March 16 denial of his informal grievance that followed his reprimand for insubordinate behavior. Serrao referred to Ms. Moran's "abusive tirades" against him over a period of two years, stating that she was retaliating against him because of "his filing of a grievance against her." The response to the March 26 grievance appears, from the record, to be an October 31, 1994 memorandum from Frank W. Deliberti, an agency management official. Mr. Deliberti stated that "Ms. Moran's written reprimand dated February 16, 1994 was fully justified" and that he had found no evidence to support Serrao's claim that the reprimand was "a retaliatory action on Ms. Moran's part."

threatening to suspend or remove me from Federal Service.

On October 4, 1994, Ms. Moran rated Serrao's performance as "marginal," and on October 6, she placed him on a performance improvement plan. In so doing, she wrote: "[I]f your performance continues to deteriorate to the unsatisfactory level, I will have no choice but to initiate action to remove you from your position as a Criminal Investigator." On October 12, Serrao reported these "additional acts of retaliation" to OSC. Serrao stated: "I would greatly appreciate it if you would add to your 'final' report an addendum to include my recent year end performance rating which I received on October 6, 1994. I also was put on a Performance Improvement Plan.... These additional acts of retaliation must be forwarded with your report."

II.

On February 14, 1995, Serrao filed an appeal with the Board, purportedly under the WPA. Serrao stated that, pursuant to 5 C.F.R. § 1209.2(a), ³ he was appealing the October 4, 1994 performance appraisal and the October 6, 1994 decision to place him on a performance improvement plan. He alleged that his marginal performance rating and the performance improvement plan were "in retaliation for ... protected whistleblowing in violation of 5 U.S.C. section 2302(b)(8)." Serrao made two charges of retaliation. First, he cited the statement in his March 23 formal grievance that Ms. Moran had conducted a two year harassment campaign against him because she believed he was the source of the 1991 allegations to the OIG. As Serrao quoted them to the Board, "[t]he [OIG] allegations accused the SAIC of regularly making personal telephone calls from the NYFO and also of being given passing scores for the quarterly firearms training when in fact they were not actually attained." According to Serrao, the statement in the March 23 grievance "constitutes 2302(b)(8) disclosure because Mr. Serrao accuses Ms. Moran of violating 2302(b)(8) by retaliating against him because she believed he had blown the whistle on her." Second, Serrao cited the statement in the March 26 formal grievance that referred to "abusive tirades" by Ms. Moran as "just another example of an abuse of authority, gross mismanagement, and retaliation on the part of the SAIC against the R/A." Serrao claimed that his March 26 statement "constitutes 2302(b)(8) disclosure because Mr. Serrao accuses Ms. Moran of violating 2302(b)(9) by retaliating against him because he had filed a grievance against her." Finally, Serrao stated that he had furnished OSC with copies of his March 23 and March 26 formal grievances.

After the appeal was filed, the AJ issued an acknowledgement order in which he directed Serrao to file a submission addressing the question of the Board's jurisdiction. The AJ informed Serrao that the matters he was appealing--the performance appraisal and his placement on a performance improvement plan--did not appear to be actions that were appealable to the Board. The AJ stated: "[Y]our petition will be dismissed unless you allege facts that if true would show that a personnel action was taken, proposed This letter is to confirm our conversation concerning the complaint submitted to the ... OSC ... by your client, Robert Serrao. In the complaint, ... Mr. Serrao stated that he had received a lowered performance appraisal rating and a written reprimand. Mr. Serrao also explained that agency officials removed him from a detail, harassed him, and threatened him with (1)...