Warren v. Department of Army, No. 86-817

CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit
Writing for the CourtBefore NIES, Circuit Judge, NICHOLS, Senior Circuit Judge and ARCHER; NICHOLS; NIES
Citation804 F.2d 654
PartiesWalter A. WARREN, Petitioner, v. DEPARTMENT OF the ARMY, Respondent. Appeal
Docket NumberNo. 86-817
Decision Date24 October 1986

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.

Page 655

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;

Page 656

(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...

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30 practice notes
  • Cruz v. Department of Navy, No. 89-3359
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • April 30, 1991
    ...added) Sullivan v. Department of the Navy, 720 F.2d 1266, 1278 (Fed.Cir.1983) (Nies, concurring). In Warren v. Department of Army, 804 F.2d 654, 658 (Fed.Cir.1986), Judge Nies' statement was reported as indicating that an agency's good case might not win for the agency if the evidence shows......
  • Harold v. Barnhart, Civil Action No. 05-5841.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • August 17, 2006
    ...been retaliation; and 4) there was a genuine nexus between the retaliation and the adverse employment action. Warren v. Dep't of Army, 804 F.2d 654, 656-58 (Fed.Cir. The AJ found that plaintiff failed to establish the fourth element of the Warren test: a genuine nexus between her participat......
  • Williams v. Roche, Civil Action No:. 00-1288.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • January 8, 2007
    ...law judge concluded after an extensive analysis that Williams had not met his burden of showing under Warren v. Dep't of Army, 804 F.2d 654, 656-58 (Fed.Cir.1986), that there was a genuine nexus between the alleged retaliation and the adverse action. (MSPB A.R., at 324-28). The administrati......
  • Barry v. U.S. Capitol Guide Bd., Civil Action No. 04-168 (RBW).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • July 21, 2009
    ...in essence, imports the antidiscrimination laws of Title VII into federal employees' workplaces."); see also Warren v. Dep't of Army, 804 F.2d 654, 657 (Fed.Cir. 1986) (analyzing retaliation under the CSRA and drawing from principles of the "comparable law" of Title VII 13. The Court has is......
  • Request a trial to view additional results
30 cases
  • Cruz v. Department of Navy, No. 89-3359
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • April 30, 1991
    ...added) Sullivan v. Department of the Navy, 720 F.2d 1266, 1278 (Fed.Cir.1983) (Nies, concurring). In Warren v. Department of Army, 804 F.2d 654, 658 (Fed.Cir.1986), Judge Nies' statement was reported as indicating that an agency's good case might not win for the agency if the evidence shows......
  • Harold v. Barnhart, Civil Action No. 05-5841.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • August 17, 2006
    ...been retaliation; and 4) there was a genuine nexus between the retaliation and the adverse employment action. Warren v. Dep't of Army, 804 F.2d 654, 656-58 (Fed.Cir. The AJ found that plaintiff failed to establish the fourth element of the Warren test: a genuine nexus between her participat......
  • Williams v. Roche, Civil Action No:. 00-1288.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • January 8, 2007
    ...law judge concluded after an extensive analysis that Williams had not met his burden of showing under Warren v. Dep't of Army, 804 F.2d 654, 656-58 (Fed.Cir.1986), that there was a genuine nexus between the alleged retaliation and the adverse action. (MSPB A.R., at 324-28). The administrati......
  • Barry v. U.S. Capitol Guide Bd., Civil Action No. 04-168 (RBW).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • July 21, 2009
    ...in essence, imports the antidiscrimination laws of Title VII into federal employees' workplaces."); see also Warren v. Dep't of Army, 804 F.2d 654, 657 (Fed.Cir. 1986) (analyzing retaliation under the CSRA and drawing from principles of the "comparable law" of Title VII 13. The Court has is......
  • Request a trial to view additional results

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