                     NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit
                                    2008-3167

                              HOMI N. AMIRMOKRI,

                                                   Petitioner,

                                         v.

                           DEPARTMENT OF ENERGY,

                                                   Respondent.


      Morris E. Fischer, Law Office of Morris E. Fischer, of Bethesda, Maryland,
argued for petitioner.

       Christopher A. Bowen, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, argued for
respondent. With him on the brief were Jeanne E. Davidson, Director, Todd M. Hughes,
Assistant Director. Of counsel was Claudia Burke, Trial Attorney.

Appealed from: Merit Systems Protection Board
                     NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit


                                      2008-3167

                               HOMI N. AMIRMOKRI,

                                               Petitioner,
                                          v.

                            DEPARTMENT OF ENERGY,

                                               Respondent.


               Petition for review of the Merit Systems Protection Board
                                 in DC1221070864-W-1.

                          ___________________________

                          DECIDED: February 17, 2009
                          ___________________________


Before RADER, BRYSON, and MOORE, Circuit Judges.

PER CURIAM.

                                      DECISION

      Homi N. Amirmokri petitions for review of a final decision of the Merit Systems

Protection Board denying his request for corrective action following an agency

reprimand. We affirm the decision of the Board.

                                   BACKGROUND

      Mr. Amirmokri is a nuclear engineer who works at the Department of Energy’s

Office of Nuclear Energy in Germantown, Maryland. On the morning of October 27,
2006, he was involved in an altercation in that office’s cafeteria. After the altercation,

the Deputy Director of Nuclear Operations removed Mr. Amirmokri from the premises

and issued him a letter of reprimand for inappropriate behavior. The letter stated that

Mr. Amirmokri was being reprimanded for approaching another individual in a manner

that caused the individual to perceive a physical threat.

          On March 20, 2007, Mr. Amirmokri filed a complaint with the Department of

Energy’s Equal Employment Opportunity Office (“EEO”) alleging that his removal from

the office and his reprimand were the result of discrimination on the basis of national

origin as well as retaliation for whistleblowing activities. Then, on August 15, 2007, Mr.

Amirmokri filed an Individual Right of Action complaint with the Merit Systems Protection

Board. That complaint alleged that his removal from the office and the issuance of a

letter of reprimand were in retaliation for his prior whistleblowing activities.       An

administrative judge of the Merit Systems Protection Board held a hearing to evaluate

that claim.

          On November 15, 2007, the administrative judge issued an initial decision

denying Mr. Amirmokri’s claim that he had been retaliated against for whistleblowing.

The administrative judge first determined that Mr. Amirmokri had made nonfrivolous

allegations that he had engaged in protected whistleblowing activity in 2003 and 2004

and that his protected disclosures were a contributing factor in the agency’s disciplinary

action.     The administrative judge then determined that despite Mr. Amirmokri’s

reasonable belief that his whistleblowing activity had been a contributing factor in his

having been disciplined, the agency had demonstrated, by clear and convincing

evidence, that it would have taken the same disciplinary actions in the absence of Mr.




2008-3167                                    2
Amirmokri’s protected activities.     The administrative judge reached that conclusion

because the agency’s actions were supported by “five written statements by agency

employees and contractors who observed the October 27, 2006, incident in the

cafeteria.” The administrative judge explained that the witness statements were “strong

evidence of the appellant’s misconduct.” The judge also found that Mr. Amirmokri’s

supervisor had “little or no motive to retaliate” for Mr. Amirmokri’s whistleblowing

activity, as the supervisor “was not shown to have suffered any adverse consequences

because of the activity when it occurred or at any time since then.” The administrative

judge’s decision became the Board’s final decision on December 20, 2007.             On

February 20, 2008, Mr. Amirmokri filed the instant petition for review of that final

decision.

       On April 8, 2008, the EEO issued its Final Agency Decision, finding that Mr.

Amirmokri had failed to establish by a preponderance of evidence that he had been

subject to either discrimination based on national origin. With respect to the allegation

that he was subject to retaliation due to his whistleblowing activity, the agency noted

that “whistle-blowing activity is not protected under Title VII.”

       On April 21, 2008, Mr. Amirmokri filed suit against the Department of Energy in

the United States District Court for the District of Maryland. Amirmokri v. Department of

Energy, No. 09-cv-00994. In his complaint, Mr. Amirmokri alleged the same two claims

that he had brought before the EEO. In the first count, Mr. Amirmokri alleged that his

removal from the building and his letter of reprimand were the result of national origin

discrimination.   The second count alleged that the agency removed him from the

building and reprimanded him in retaliation for prior whistleblowing activities.




2008-3167                                     3
                                     DISCUSSION

       The government contends that the Merit Systems Protection Board lacked

subject matter jurisdiction over this appeal and that we should therefore dismiss the

petition.   The government’s argument is that when Mr. Amirmokri began the EEO

process with the agency, he immediately became barred from filing an appeal to the

Board by 29 C.F.R. § 1614.302. That regulation provides, in pertinent part, as follows:

       (a) Definitions –

   (1) Mixed case complaint. A mixed case complaint is a complaint of
       employment discrimination filed with a federal agency based on race,
       color, religion, sex, national origin, age or handicap related to or stemming
       from an action that can be appealed to the Merit Systems Protection
       Board (MSPB). The complaint may contain only an allegation of
       employment discrimination or it may contain additional allegations that the
       MSPB has jurisdiction to address.

   (2) Mixed case appeals. A mixed case appeal is an appeal filed with the
       MSPB that alleges that an appealable agency action was effected, in
       whole or in part, because of discrimination on the bases of race, color,
       religion, sex, national origin, handicap or age.

       In his original complaint to the EEO, Mr. Amirmokri alleged discrimination on the

basis of national origin and a violation of the Whistleblower Protection Act. The alleged

act of discrimination was related to an action that could be appealed to the Merit

Systems Protection Board, which has jurisdiction over whistleblowing claims under 5

U.S.C. § 1214(a)(3), 5 U.S.C. § 1221, and 5 C.F.R. § 1209.2.             Mr. Amirmokri’s

complaint to the EEO was thus a “mixed case complaint.” Mr. Amirmokri’s appeal to the

Board, by contrast, alleged solely a retaliation claim for whistleblowing activities and

made no mention of discrimination. As such, his appeal to the Board was not a “mixed

case appeal” under 29 C.F.R. § 1614.302(a).




2008-3167                                   4
       The effect of filing mixed actions is discussed in 29 C.F.R. § 1614.302(b). That

section provides as follows, in pertinent part:

       (b) Election. An aggrieved person may initially file a mixed case complaint
       with an agency pursuant to this part or an appeal on the same matter with
       the MSPB pursuant to 5 CFR 1201.151, but not both. An agency shall
       inform every employee who is the subject of an action that is appealable
       to the MSPB and who has either orally or in writing raised the issue of
       discrimination during the processing of the action of the right to file either a
       mixed case complaint with the agency or to file a mixed case appeal with
       the MSPB. The person shall be advised that he or she may not initially file
       both a mixed case complaint and an appeal on the same matter and that
       whichever is filed first shall be considered an election to proceed in that
       forum.

The first sentence of section 1614.302(b) makes clear that a claimant may not file both

a mixed case complaint and an appeal pursuant to 5 C.F.R. § 1201.151, which applies

to allegations that a personnel action was “based, in whole or in part, on prohibited

discrimination.” 5 C.F.R. § 1201.151. As Mr. Amirmokri’s claim to the Board did not

allege discrimination, the first sentence of section 1614.302(b) does not prohibit his

simultaneous pursuit of those two claims.         While the second sentence of section

1614.302(b) explicitly prohibits the filing of both a mixed case complaint and a mixed

case appeal, Mr. Amirmokri did not file a mixed case appeal and is thus not barred by

that prohibition. Finally, the third sentence of section 1614.302(b) simply reiterates the

rule from the opening sentence that a claimant may not initially file both a mixed case

complaint and an appeal “on the same matter.”               Therefore, nothing in section

1614.302(b) barred Mr. Amirmokri from filing an appeal with the Board, even though he

had previously filed a claim with the EEO.

       Another subsection of section 1614.302, 29 C.F.R. § 1614.302(d), establishes

the procedures applicable when a claimant initially files a mixed case complaint with the




2008-3167                                     5
EEO, as Mr. Amirmokri has done in this case. We recently outlined the operation of that

provision within the regulatory framework. See Toyama v. Merit Sys. Prot. Bd., 481

F.3d 1361 (Fed. Cir. 2007). As we explained in Toyama:

       The EEOC’s regulations specify that parties with mixed cases may elect to
       proceed under either the MSPB’s procedures or the EEOC’s procedures,
       but not both. 29 C.F.R. § 1614.302(b); 5 C.F.R. § 1201.154. Under the
       EEOC’s regulations, separate procedures apply to a party presenting a
       mixed case complaint, as compared to a pure discrimination complaint.
       29 C.F.R. § 1614.302(a). Specifically, the EEOC’s procedures dictate that
       after the agency issues its final decision on a mixed case complaint,
       aggrieved parties may appeal to the MSPB or may file a civil action in
       district court. 29 C.F.R. § 1614.302(d). . . .
               By contrast, pure discrimination complaints follow the general
       EEOC procedures contained in subpart A. Those general procedures
       permit appeal of the agency’s final decision only to the EEOC’s OFO or
       filing a civil action in district court. 29 C.F.R. § 1614.110(a).
               Parties proceeding with a mixed case appeal to the MSPB have
       thirty days from the Board’s final decision to petition the EEOC for
       consideration or to file a civil action in the district court. 5 C.F.R. §
       1201.157. Alternately, such parties may appeal directly to this court if
       willing to waive discrimination issues. Id.

Toyama, 481 F.3d at 1365.        These separate procedures apply to the mixed case

complaint that Mr. Amirmokri filed with the EEO. After the agency issues its decision on

a mixed case complaint, or 120 days after the date of the EEO filing if a final decision is

not issued within that time, the complainant may appeal to the Merit Systems Protection

Board or file a civil action in district court. 29 C.F.R. § 1614.302(d). The complainant

may not both appeal to the Board and file a civil action. Id.

       Mr. Amirmokri did not wait until either the EEO had issued a final decision or 120

days had elapsed. Instead, while the EEO proceeding was still pending, he filed an

appeal with the Board that did not include his discrimination claims. If that filing had

raised issues of prohibited discrimination, it would have been a mixed case appeal, and

the Board would have dismissed the appeal without prejudice under 5 C.F.R.



2008-3167                                    6
§ 1201.154(c). However, because Mr. Amirmokri did not allege discrimination in his

complaint before the Board, that section was inapplicable. Accordingly, there is nothing

in the regulations to which we have been directed that limits the Board’s jurisdiction over

Mr. Amirmokri’s action or our jurisdiction over his petition for review. We therefore turn

to the merits of Mr. Amirmokri’s claim. 1

       Substantial evidence supports the Board’s conclusion that the agency would

have taken disciplinary action against Mr. Amirmokri even if he had never engaged in

any whistleblowing activity. The Board rested its conclusion that Mr. Amirmokri had

acted in an inappropriately threatening manner on the oral testimony of two witnesses to

the incident in the cafeteria, the written testimony of two additional witnesses to the

incident, and the oral testimony of Mr. Amirmokri’s supervisor, all of which supported

that conclusion. To the degree that the Board’s conclusions were based on credibility

determinations, they are “virtually unreviewable” by this court. Gibson v. Dep’t of the

Army, 160 F.3d 722, 725 (Fed. Cir. 1998). In addition, the Board’s determination that

the Deputy Director of Nuclear Operations had little or no motive to retaliate was amply

supported by evidence that the supervisor had suffered no adverse consequences from

Mr. Amirmokri’s protected disclosures.        We therefore uphold the Board’s decision

denying Mr. Amirmokri’s request for corrective action in this case.




       1
              Mr. Amirmokri’s pending action in the district court, which he filed after he
filed his petition in this court, is not pertinent to our conclusion that we have jurisdiction
to consider his whistleblowing retaliation claim.


2008-3167                                     7
