Warren v. Department of Army

• Decision Date: 24 October 1986
• Docket Number: No. 86-817,86-817
• Citation: 804 F.2d 654
• Parties: Walter A. WARREN, Petitioner, v. DEPARTMENT OF the ARMY, Respondent. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 654

804 F.2d 654

Walter A. WARREN, Petitioner, v. DEPARTMENT OF the ARMY, Respondent.

Appeal No. 86-817.

United States Court of Appeals, Federal Circuit.

Oct. 24, 1986.

Amy Wind, Kator, Scott and Heller, Washington, D.C., argued for petitioner. With her on the brief was Irving Kator.

Scott A. Harbottle, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for respondent. With him on the brief were Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Robert A. Reutershan and Stephen J. McHale. Charles B. Hernicz, U.S. Army, Office of the Staff Judge Advocate, Fort McPherson, Georgia, of counsel.

Before NIES, Circuit Judge, NICHOLS, Senior Circuit Judge and ARCHER, Circuit Judge.

NICHOLS, Senior Circuit Judge.

Walter A. Warren (Warren) appeals the decision of the Merit Systems Protection Board (MSPB or board), 29 M.S.P.R. 292, sustaining the decision of the Department of the Army (DOA) at Fort McPherson, Georgia, removing him from a position as a Computer Specialist for unacceptable performance, 5 U.S.C. Sec. 4303. The board declined to review the initial decision of its presiding official, making that decision its own. We affirm.

Background

On April 2, 1984, Warren, then employed by the DOA Information Systems Division, was detailed to a position of like grade and title in the same division. On July 22, 1984, Warren was permanently reassigned to this position. Prior to and after his detail, Warren engaged in a variety of protected "whistleblowing" activities, including an unsuccessful lawsuit in federal court challenging the classification of his position and treatment of him by agency officials, a letter to his senator regarding merit promotions, and an equal employment opportunity complaint.

After the detail, Warren had difficulty with his new computer duties. Howard Highley, Warren's supervisor, issued a notice to Warren on December 5, 1984, warning him that his performance was unsatisfactory and allowing him 90 days in which to improve. Warren continued to have difficulty with his new assignments even after extensive instruction. Warren's removal followed on March 1, 1985.

Warren appealed his removal to the MSPB, arguing that he was not given an "opportunity to demonstrate acceptable performance," 5 U.S.C. Sec. 4302(b)(6), and that his removal was illegal reprisal for his protected activities, 5 U.S.C. Sec. 2302(b)(8). The presiding official sustained the DOA's removal of Warren and found that the DOA established by substantial evidence that Warren's performance was unacceptable after he was given a reasonable opportunity to improve. In regard to Warren's claim of reprisal, the presiding official found that Warren established that (1) protected activities were engaged in, (2) the accused officials knew of these activities, (3) "retaliation (adverse action) resulted"; however, (4) Warren failed to establish that the adverse action was taken in retaliation for his protected activities. The presiding official based this fourth conclusion on the substantial evidence of Warren's unacceptable performance and on Warren's failure to offer evidence of reprisal beyond coincidence in time between the adverse action and the protected activities, which the official found did not meet the requisite preponderance of the evidence. The MSPB denied review of the presiding official's opinion. Warren has appealed to this court.

Analysis

I

The standard of review for this court in considering an MSPB decision of this type is limited. The agency's action must be sustained unless it is found to be:

(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law (2) obtained without procedure required by law, rule, or regulation having been followed; or

(3) unsupported by substantial evidence;

5 U.S.C. Sec. 7703(c); Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed.Cir.1984). The decision to dismiss a federal employee must have a "rational basis supported by substantial evidence from the record as a whole." Van-Fossen v. Department of Housing and Urban Development, 748 F.2d 1579, 1580 (Fed.Cir.1984). In reviewing the presiding official's decision, the MSPB and this court must "give deference to the judgment by each agency of the employee's performance in light of the agency's assessment of its own personnel needs and standards." Lisiecki v. Merit Systems Protection Board, 769 F.2d 1558, 1564 (Fed.Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1514, 89 L.Ed.2d 913 (1986), quoting S.Rep. No. 969, 95th Cong., 2d Sess. 45, reprinted in 1978 U.S. Code Cong. & Ad. News 2723, 2767.

There is substantial evidence on record of Warren's unacceptable performance in critical areas of his position. There is also substantial evidence that Warren's supervisors provided him with a reasonable opportunity to improve. Based on this evidence, the decision was not arbitrary, capricious, or an abuse of discretion. Warren's unacceptable performance provides a rational basis for his removal, 5 U.S.C. Sec. 4303(a). While he says he was not given a reasonable opportunity to adjust to the requirements of the new position, he should have learned the requisite skills in the old one for both, as it was found. Warren's contention that he was not provided a "meaningful" opportunity to improve is not supported by the record. In assessing such arguments on appeal, and in determining whether the MSPB's decision is supported by substantial evidence, the court cannot engage in a de novo review; rather, the court must determine whether the agency's determination is supported by substantial evidence already of record.

II

This case would be within applicable precedents and hardly would justify extended discussion or a published opinion except for a curious quirk in the presiding official's opinion, and a still more curious use of it by the petitioner here. They indicate the existence of a problem that has not, so far as we know, surfaced previously, and may produce difficulty in future cases if not faced squarely in this one.

The board and counsel for petitioner agree that one adjudicating an adverse action in which a claim of illegal retaliation is made, must apply four tests which, as stated in Hagmeyer v. United States, 757 F.2d 1281, 1284 (Fed.Cir.1985), are as follows:

In order for petitioner to prevail on his contention, [of illegal retaliation] he has the burden of showing that (1) a protected disclosure was made, (2) the accused official knew of the disclosure, (3) retaliation resulted, and (4) there was a genuine nexus between the retaliation and petitioner's removal.

The presiding official obviously had difficulty interpreting test (3) and inserted language giving it his own construction--

(3) retaliation (adverse personnel action) resulted.

The board already knows an adverse personnel action occurred, otherwise it would not have had jurisdiction of the appeal. Except to avoid anticipating test (4), it adds nothing to say the petitioner has shown it again. Petitioner nevertheless argues (Brief, page 15):

In the circumstances of this case, the Board's determination that respondent had retaliated against petitioner virtually requires a finding of nexus between the retaliation and the removal.

In other words, a conclusion in favor of petitioner under test (3) virtually preempts test (4). Why Hagmeyer prescribed two tests to determine the same thing is not explained. The presiding official obviously did not think he had preempted test (4), and added his insert in parentheses to reflect his understanding of what test (3) really meant. We think the presiding official has assigned too narrow and insufficiently relevant a scope to test (3), and the petitioner one that is too broad and preemptive of test (4). We are therefore constrained to make our own determination of what test (3) really means. In so doing, we consider the background of the Hagmeyer tests in prior court and administrative decisions.

As authority for the four tests to be applied to a retaliation contention, this court in Hagmeyer cites only Sullivan v. Department of the Navy, 720 F.2d 1266, 1275 (Fed.Cir.1983). In that case the tests are word for word the same as in Hagmeyer, and the authority for them is given as In re Frazier, 1 MSPB 159, 1 M.S.P.R. 163 (1979), aff'd, 672 F.2d 150 (D.C.Cir.1982). The wording there found, though different, in essence is the same, but more elaborate and analytical, which was to be expected as the board was writing on a clean slate in interpreting a statute then new. The conclusion must follow that this court in Sullivan and Hagmeyer was not undertaking to reassign to the four tests exactly the tasks they were to perform, but simply to identify them so the employee's success in invoking them could be ticked off and weighed according to Frazier. The rationality of stating test (3) in a manner that could be construed as preempting test (4) and making it superfluous, was simply not before the court in an adversary context, and we feel free, therefore, to restate test (3), if necessary, to avoid confusion, so long as we do not misapply what was done in Sullivan and Hagmeyer as precedents.

The board in Frazier determined, at 1 M.S.P.R. 193, that the elements the employee must prove were the same as in a proceeding under section 704(a) of Title VII, i.e.:

A violation of section 704(a) is shown when an employee (or applicant for employment) establishes that he or she engaged in activity protected by this section; that he or she subsequently was treated in an adverse fashion by the employer; and that there is a causal connection between the protected activity and the adverse action(s). * * * The causal connection which the employee must show merely...