                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                       2015 MSPB 28

                             Docket No. CH-1221-14-0827-W-1

                                Mr. Chih-Wei (Scott) Lu,
                                         Appellant,
                                              v.
                           Department of Homeland Security,
                                           Agency.
                                        April 1, 2015

           Eydie R. Glassman, Esquire, Park Ridge, Illinois, for the appellant.

           M. Bradley Flynn, Esquire, Southfield, Michigan, for the agency.

                                          BEFORE

                             Susan Tsui Grundmann, Chairman
                                Mark A. Robbins, Member



                                  OPINION AND ORDER

¶1         This appeal is before us on the administrative judge’s March 3, 2015 order
     certifying for interlocutory review his order regarding the appropriate scope of
     review of a prior disciplinary action in the context of the appellant’s individual
     right of action (IRA) appeal. We AFFIRM the administrative judge’s ruling AS
     MODIFIED by this Opinion and Order, VACATE the portion of the order that
     stayed further processing of the appeal, and RETURN this case to the regional
     office for further adjudication consistent with this decision.
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                                        BACKGROUND
¶2         The appellant was employed by the agency as a Supervisory Transportation
     Security Officer. Initial Appeal File (IAF), Tab 8, Subtab 4G. On January 24,
     2014, the agency proposed the appellant’s removal for failure to follow standard
     operating procedures and failure to follow directions.           Id., Subtab 4M.      In
     proposing the appellant’s removal, the agency noted that the appellant had
     received a 14-day suspension in March 2012, for, among other things, failure to
     follow directions. Id. at 4. On March 21, 2014, the agency issued a decision
     removing the appellant. IAF, Tab 8, Subtab 4H. In its decision, the agency again
     noted the appellant’s 2012 suspension. 1 Id. at 10.
¶3         On April 14, 2014, the appellant filed a whistleblower reprisal complaint
     with the Office of Special Counsel (OSC) regarding his removal. IAF, Tab 4,
     Subtab I. On July 11, 2014, OSC informed the appellant that it was closing its
     investigation into his complaint and that he might have the right to seek
     corrective action from the Board. Id., Subtab J.
¶4         The appellant filed the instant IRA appeal on September 11, 2014. IAF,
     Tab 1. In his initial appeal, the appellant alleged that the deciding official had
     retaliated and discriminated against him.           Id.    He also alleged that his
     2012 suspension was racially motivated. Id. In his prehearing submissions, the

     1
       The agency’s removal decision included notice of the appellant’s right to file an
     internal agency appeal challenging the decision, IAF, Tab 8, Subtab 4H at 11, but it d id
     not include any notice of Board appeal rights.              Although employees of the
     Transportation Security Administration (TSA) who meet the definition of an
     “employee” under 5 U.S.C. § 7511(a)(1) generally are entitled to appeal adverse actions
     to the Board, TSA screener personnel are exempted from this entitlement under a
     provision of the Aviation and Transportation Security Act. Wi lson v. Department of
     Homeland Security, 2015 MSPB 20, ¶ 3. We recently held in Wilson that another TSA
     employee with a job title sim ilar to that of the appellant did have Board adverse action
     appeal rights, despite the agency’s attempt to classify her as a screener. I d., ¶¶ 6-13.
     The appellant has not argued that he had the right to file an adverse action appeal
     challenging his removal, rather than an IRA appeal. In any event, whether the appellant
     in this case has adverse action appeal rights is not before us on interlocutory review.
                                                                                      3

     appellant proposed several witnesses who would testify, at least in part, regarding
     the merits of his March 2012 suspension. IAF, Tab 17. In his summary of the
     prehearing conference, the administrative judge indicated that the Board’s review
     of the appellant’s March 2012 suspension essentially was limited to whether it
     was clearly erroneous. IAF, Tab 20 at 4 (citing Bolling v. Department of the Air
     Force, 9 M.S.P.R. 335, 339-40 (1981)). The administrative judge therefore ruled
     that   no   new   evidence   or   argument   would   be   allowed   regarding the
     2012 suspension, other than the appellant’s reasons for the challenge.        IAF,
     Tab 20 at 4 (citing Guzman-Muelling v. Social Security Administration,
     91 M.S.P.R. 601, ¶ 15 (2002)).       The administrative judge indicated in his
     summary that the appellant had withdrawn all of the requested witnesses related
     to the 2012 suspension. IAF, Tab 20 at 5.
¶5          The administrative judge subsequently issued an order in which he found,
     upon further review, that the Bolling standard regarding prior discipline was “not
     entirely applicable” in an IRA appeal. IAF, Tab 34 at 3. He noted the Board’s
     statement in Cosgrove v. Department of the Navy, 59 M.S.P.R. 618, 624-25
     (1993), that, in determining whether an agency has met its burden in an IRA
     appeal of establishing by clear and convincing evidence that it would have taken
     the same action in the absence of the appellant’s protected disclosure, an
     administrative judge may closely scrutinize the appellant’s past disciplinary
     record for evidence of possible retaliatory animus by the agency. IAF, Tab 34
     at 3 (citing Cosgrove, 59 M.S.P.R. at 625). The administrative judge therefore
     allowed the parties to call additional witnesses and submit evidence addressing
     the merits of the 2012 suspension. IAF, Tab 34 at 4.
¶6          The agency moved for reconsideration of the administrative judge’s order.
     IAF, Tab 35. The agency argued that, unlike Cosgrove, the prior discipline at
     issue in the instant appeal preceded the appellant’s alleged whistleblowing
     disclosures by 2 years and therefore could not have been part of a retaliatory
     scheme. Id. at 6-8. In response to the agency’s motion, the appellant argued that
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     evidence regarding the 2012 suspension was relevant because it would establish
     the deciding official’s animosity toward the appellant. IAF, Tab 37 at 2. The
     administrative judge then issued an order certifying for interlocutory review his
     ruling that the Board’s review of the appellant’s 2012 suspension was not subject
     to the Bolling standard. IAF, Tab 39. He stayed further proceedings before him
     pending resolution of the interlocutory appeal. Id. at 5.

                                        ANALYSIS
¶7         In an IRA appeal, the Board lacks the authority to adjudicate the merits of
     the underlying personnel action; rather, our jurisdiction is limited to adjudicating
     the whistleblower allegations. See Marren v. Department of Justice, 51 M.S.P.R.
     632, 639 (1991), aff’d, 980 F.2d 745 (Fed. Cir. 1992) (Table), and modified on
     other grounds by Robinson v. U.S. Postal Service, 63 M.S.P.R. 307, 323 n.13
     (1994).   After establishing the Board’s jurisdiction in an IRA appeal, the
     appellant must then establish a prima facie case of whistleblower retaliation by
     proving by preponderant evidence that he made a protected disclosure that was a
     contributing factor in a personnel action taken against him.             5 U.S.C.
     § 1221(e)(1); Mattil v. Department of State, 118 M.S.P.R. 662, ¶ 11 (2012). If
     the appellant makes out a prima facie case, the agency is given an opportunity to
     prove, by clear and convincing evidence, that it would have taken the same
     personnel action in the absence of the protected disclosure.              5 U.S.C.
     § 1221(e)(1)-(2); Chambers v. Department of the Interior, 116 M.S.P.R. 17, ¶ 12
     (2011). In determining whether an agency has met this burden, the Board will
     consider the following factors:    (1) the strength of the agency’s evidence in
     support of its action; (2) the existence and strength of any motive to retaliate on
     the part of the agency officials who were involved in the decision; and (3) any
     evidence that the agency takes similar actions against employees who are not
     whistleblowers but who are otherwise similarly situated. Carr v. Social Security
     Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). The Board does not view
                                                                                             5

     these factors as discrete elements, each of which the agency must prove by clear
     and convincing evidence. Rather, the Board will weigh the factors together to
     determine whether the evidence is clear and convincing as a whole. See, e.g.,
     Yunus v. Department of Veterans Affairs, 84 M.S.P.R. 78, ¶ 27 (1999), aff’d,
     242 F.3d 1367 (Fed. Cir. 2001).
¶8          The Bolling standard for reviewing prior discipline upon which an agency
     has relied in taking an appealable adverse action does not apply in the context of
     a reprisal claim. Rhee v. Department of the Treasury, 117 M.S.P.R. 640, ¶ 25
     (2012). 2   Thus, the administrative judge is correct that the Bolling standard
     should not be applied to this IRA appeal. However, that does not mean that the
     Board must conduct a full review of the merits of the 2012 suspension in order to
     adjudicate this appeal.     As in any appeal, the administrative judge has wide
     discretion under 5 C.F.R. § 1201.41(b)(8), (10), to exclude witnesses where it has
     not been shown that their testimony would be relevant, material, and
     nonrepetitious. Thus, the administrative judge must determine whether, and to
     what extent, evidence regarding the 2012 suspension is relevant to the issues in
     this appeal.
¶9          The personnel action at issue in this IRA appeal is the appellant’s
     2014 removal.     Therefore, the Board does not need to determine whether the
     2012 suspension was proper in order to adjudicate this appeal. Additionally, it
     does not appear that evidence regarding the 2012 suspension is relevant to the
     appellant’s prima facie case of whistleblower reprisal.              Accordingly, such
     evidence would only be relevant, if at all, to whether the agency has proven by



     2
       Rhee involved a claim of reprisal for prior equal employment opportunity activity,
     rather than reprisal for whistleblowing.        See Rhee, 117 M.S.P.R. 640, ¶ 25.
     Nevertheless, we find that the Board’s rationale in Rhee regarding the applicability of
     the Bolling standard applies with equal force to the whistleblower reprisal claim in th is
     IRA appeal.
                                                                                        6

      clear and convincing evidence that it would have removed the appellant in the
      absence of his protected disclosure.
¶10         In assessing whether to allow evidence regarding the 2012 suspension, the
      administrative judge should be mindful of the decision of the U.S. Court of
      Appeals for the Federal Circuit in Whitmore v. Department of Labor, 680 F.3d
      1353 (Fed. Cir. 2012). The Federal Circuit in Whitmore held that “[e]vidence
      only clearly and convincingly supports a conclusion when it does so in the
      aggregate considering all the pertinent evidence in the record, and despite the
      evidence that fairly detracts from that conclusion.” Id. at 1368. The court further
      determined that “[i]t is error for the [Board] to not evaluate all the pertinent
      evidence in determining whether an element of a claim or defense has been
      proven adequately.” Id. Upon its review in Whitmore, the court found that the
      administrative judge had taken an unduly dismissive and restrictive view on the
      issue of the existence and strength of any motive to retaliate by the agency, id.
      at 1370-72, and that remand for further fact finding was necessary, id. at 1372,
      1377. The court also criticized the administrative judge’s failure to consider “the
      facts and circumstances surrounding how Whitmore’s whistleblowing . . . marked
      the beginning of his increasingly strained relationship with [agency] officials, and
      how his disclosures paralleled his increasingly poor performance reviews and
      adverse personnel actions after decades of exceptional service.” Id. at 1376.
¶11         Whitmore, however, does not require a full examination of the appellant’s
      entire employment history. Because the issue in an IRA appeal is whether the
      challenged personnel action was taken in reprisal for the appellant’s protected
      disclosures, events that preceded the appellant’s disclosures will often have little
      or no relevance.   Cf. Kukoyi v. Department of Veterans Affairs, 111 M.S.P.R.
      404, ¶ 11 (2009) (disclosures made after the personnel actions at issue cannot
      have been contributing factors in those personnel actions), overruled on other
      grounds by Mason v. Department of Homeland Security, 116 M.S.P.R. 135, ¶ 26
      n.7 (2011).
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¶12         Upon return of this case, the administrative judge should give the parties an
      opportunity to address whether, and to what extent, evidence regarding the
      2012 suspension relates to the Board’s analysis of the appellant’s claim of
      whistleblower reprisal. The administrative then should exercise his discretion to
      determine   whether the evidence in question is relevant,           material, and
      nonrepetitious.

                                           ORDER
¶13         Accordingly, we AFFIRM AS MODIFIED the administrative judge’s ruling
      that the Board’s review of the appellant’s 2012 suspension is not subject to the
      Bolling standard, VACATE the stay order, and RETURN this matter to the
      Central Regional Office for further adjudication consistent with this interlocutory
      decision.



      FOR THE BOARD:


      ______________________________
      William D. Spencer
      Clerk of the Board
      Washington, D.C.
