Stanek v. Department of Transp.

Decision Date03 December 1986
Docket NumberNo. 86-869,86-869
Citation805 F.2d 1572
PartiesFloyd J. STANEK, Petitioner, v. DEPARTMENT OF TRANSPORTATION, Respondent. Appeal
CourtU.S. Court of Appeals — Federal Circuit

Michael L. Spekter, Washington, D.C., for petitioner.

Ronald H. Clark, Commercial Litigation Branch, Dept. of Justice, of Washington D.C., for respondent. On the brief were Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director, Robert A. Reutershan, Asst. Director and Sharon Y. Eubanks. Wilbert Baccus, Federal Highway Admin., Dept. of Transp., of Washington, D.C., of counsel.

Before FRIEDMAN, Circuit Judge, NICHOLS, Senior Circuit Judge, and BALDWIN, Circuit Judge. *

NICHOLS, Senior Circuit Judge.

Petitioner Floyd J. Stanek appeals the decision of the Merit Systems Protection Board (MSPB or board), Docket No. DC07528510229, affirming his removal effective February 19, 1985, by the Department of Transportation, Federal Highway Administration (FHWA or agency) from his position as research highway engineer. The sustained charges are: unauthorized use of government property; solicitation of a loan from a person who might have benefited by Stanek's research conclusions; and advocating and promoting a highway research system that directly obstructed the FHWA program and that created a conflict of interest for Stanek. We affirm.

Background

Stanek was removed from his position as a research highway engineer with the FHWA effective February 19, 1985, on six grounds of misconduct, three of which were upheld by the MSPB and survive for review and discussion. The first ground upheld by the MSPB (the original charge one) was Stanek's unauthorized use of government word processing equipment and disks. This charge was based on Stanek's use of equipment for personal correspondence (3 pages) and for writing, not on official business, but related to his "whistleblowing" activities (59 pages). The next charge upheld by the MSPB (charge four of the agency's original charges) concerned a letter from Stanek to Frederic A. Lang, a patent holder for prestressed concrete, stating in detail Stanek's need for "advise [sic] for financial assistance" to help him pay legal fees to pursue his whistleblowing activities and to help him get through his divorce. Part of Stanek's official research activities involved consideration and recommendation of different highway paving techniques. Stanek was also a strong advocate of the prestressed concrete method of highway construction. The third basis for Stanek's removal upheld by the MSPB (the agency's fifth charge) was in connection with a November 10, 1984, paper prepared by Stanek entitled "The Paradox of Highway Technology" (Paradox paper). In this paper, which Stanek distributed to officials of all 50 state highway departments, as well as to the officials of the District of Columbia and Puerto Rico, Stanek criticized the Strategic Transportation Research Study (STRS), a cooperative study administered by the Transportation Research Board (TRB) of the National Academy of Sciences (NAS) under an agreement with the FHWA and the American Association of State Highway and Transportation Officials (AASHTO). STRS was funded by a contract of the FHWA and the study's proposals have been officialy endorsed and supported by FHWA. In pages 28-30 of the Paradox paper, Stanek "invited and encouraged" state officials to deliver directly to him their listings of highway research needs. Stanek also stated in the paper that he would compile these lists for public assessment and that he would transfer the lists to an appropriate congressional committee. The agency charged that Stanek, through his Paradox paper, attempted to operate his own system for identifying and soliciting research needs and, thereby, placed himself in competition with FHWA and in conflict of interest between his official duties and his role as a private conduit and advocate for research work. Stanek argued that he had a first amendment right to issue the Paradox paper.

Prior to his removal, Stanek engaged in a variety of "whistleblowing" activities, including a December 1982 report to the Inspector General revealing alleged improprieties in research contracting; a July 4, 1983, article in the New York Times containing an interview with Stanek in which he criticized the FHWA for failing to adopt the prestressed concrete method; an address to the 1982 meeting of the TRB, in which Stanek criticized a paper presented by the Portland Cement Association; testimony to a congressional committee regarding the viability of prestressed concrete; the preparation of a February 1984 paper, "Two Decades of Highway Pavement Design," prepared at the request of the congressional committee; a July 1983 letter to the Secretary of Transportation from Ralph Nader concerning prestressed concrete and concerning Stanek's reprimand; and the preparation and issuing of the Paradox paper.

Proceedings Below

The presiding official's tentative decision became that of the MSPB by its refusal to review, and it is therefore referred to as the board's decision. The board thus upheld charges one, four, and five of the agency's original six charges, finding that these three charges were supported by a preponderance of the evidence, 5 U.S.C. Sec. 7701(c)(1)(B). The board also found that these three charges provided cause such that Stanek's removal would promote the efficiency of the service. 5 U.S.C. Sec. 7513(a). In regard to charge one, the board found that the agency established by a preponderance of the evidence that Stanek used government equipment to prepare private papers, in violation of federal regulation. In addressing charge four regarding Stanek's letter to Lang, the board found that, based on the wording and contents of the letter, Stanek indirectly requested a loan from Lang, an individual who has an interest in the activities of the FHWA as well as in the manner in which Stanek exercised his official duties, in violation of federal regulation. The board found that the agency's charge regarding the solicitation was supported by a preponderance of the evidence because, although technically indirect, Stanek's need for a loan was expressed clearly. The board considered charge five regarding the Paradox paper and found that a preponderance of the evidence supported the conclusion that the system advocated by Stanek would interfere directly with the regular research activities of the FHWA. The board also found that the subject of Stanek's paper was of public concern. The board balanced Stanek's interest in speaking on this issue with the agency's interest in maintaining the integrity of its research programs and management decisions. Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). The board concluded that the agency's interests were stronger because Stanek's system would impede the efficiency of the government, create a conflict of interest between his responsibilities as an employee and his private activities, result in Stanek's loss of impartiality as a federal employee, and result in making a government decision outside official channels.

The board then addressed Stanek's defenses and various assertions and considered Stanek's claim that he was removed in retaliation for his protected activities. 5 U.S.C. Sec. 2302(b)(8). The board found that Stanek's Paradox paper was a protected disclosure and that, because the paper was the basis of two of the charges on which he was removed, Stanek established the "existence of a causal connection between his disclosure and his removal." The board found, however, that Stanek failed to establish evidence that retaliation for his whistleblowing was a significant factor in his removal, basing this conclusion on findings that Stanek's misconduct provided independent grounds for removal. The board cited the difficulties created by Stanek's proposed system, Stanek's misuse of government property, and the letter soliciting funds from Lang as serious offenses that independently warrant disciplinary action. The board also found that the events surrounding Stanek's various protected activities "do not disclose a pattern of reprisal from which an inference of similar treatment * * * [in regard to the Paradox paper] can reasonably" be drawn. The board noted that the reprimand and suspension of Stanek after his response to the TRB papers and his mailing of the "Two Decades" paper were based on Stanek's failure to follow written directions and instructions of his supervisors, absence without leave, and misuse of government property. The board concluded that the evidence establishes that the agency would have instituted the removal action regardless of whether a retaliatory motive existed.

The board addressed Stanek's claim that the agency's denial of his request to submit evidence of psychological difficulties was harmful procedural error and concluded that Stanek failed to show a connection between his removal and his psychological problems. In addition, the board found that Stanek failed to show what additional documentation of psychological problems he would have submitted and that he did not meet his burden of showing how such evidence might have caused the agency to reach a different conclusion. The board then addressed Stanek's claim that the agency's removal of him was based on age discrimination and found that Stanek had no difficulty with his assignments in the past and, therefore, there was no motivation for removing him to replace him with a younger employee. The board concluded that there was no evidence that Stanek's age had any bearing on the removal decision.

The board then considered Stanek's challenge to the penalty imposed on him by the agency. The board found that Stanek's misconduct was serious and that the agency appropriately considered evidence of Stanek's past disciplinary record, the high likelihood that a less severe sanction would not be effective against Stanek,...

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