Appealed from: Merit Systems Protection Board
Before Michel, Lourie, and Gajarsa, Circuit Judges.
The opinion of the court was delivered by: Michel, Circuit Judge
Karen L. Kewley, a probationary employee with the Department of Health and Human Services ("agency") who had made a "protected disclosure" under the Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16 (1989) (codified at scattered sections of 5 U.S.C.) ("WPA"), petitions for review of the final decision of the Merit Systems Protection Board ("Board") denying her request for corrective action under the provisions of 5 C.F.R. § 1209.2 (1998), in an individual right of action ("IRA") arising under 5 U.S.C. § 1221(e) (1994). The initial decision of the Administrative Judge ("AJ"), see Kewley v. Department of Health & Human Servs., No. DE-1221-96-0387-W-2 (M.S.P.B. April 1, 1997), became the final decision of the Board on August 15, 1997, when the full Board denied review. Petitioner argues that she established a prima facie case of retaliation, i.e., that her disclosure was a contributing factor to her removal, simply because the removal decision was made within six weeks of her protected disclosure by one who knew about it. Knowledge of the protected disclosure was undisputed and the AJ found the timing "reasonable" within the meaning of the WPA, but nevertheless ruled retaliation had not been established, prima facie. We hold this ruling to be contrary to 5 U.S.C. § 1221(e) (1994) as properly construed and thus legal error. But, we further hold, the error was harmless. Substantial evidence supported the AJ's alternative ruling that the agency established by clear and convincing evidence that it would have removed Ms. Kewley, regardless of her protected disclosure. Therefore, we affirm.
On November 14, 1993, Ms. Kewley was appointed to a GS-11 competitive career-conditional position of clinical psychologist and assigned to the agency's Billings Area Indian Health Service, Fort Peck Service Unit, located in Poplar, Montana. Ms. Kewley's job, under an appointment which was subject to completion of a one-year probationary period, was to provide psychological evaluations, consultations, and therapy for schoolchildren, develop school-based mental health programs, and act as a liaison with outreach services. In late January 1994, Margene Tower, the Billings Area Mental Health Program Officer, initiated an investigation into Ms. Kewley's work performance as a probationary employee. That investigation was unrelated to the protected disclosure which was filed in February 1994.
In an undated memorandum, determined to have been sent on February 4, 1994, Ms. Kewley informed her supervisor, Susan Fifer, Director of Behavioral Health, through Bob Camper, Clinical Director, and Kenny Smoker, Service Unit Director, of her belief that the agency's practice of allowing non-crisis counseling with minor children without first obtaining consent from their legal guardian was a violation of specific ethical and legal requirements. This was the protected disclosure. In a staff meeting several weeks later, the agency addressed Ms. Kewley's memorandum by handing out new informed consent forms and requiring their use, just as she had suggested.
Thereafter, in a letter signed by Mr. Camper, for Ms. Fifer, dated March 16, 1994, Ms. Kewley received notice that her employment was to be "terminated" effective March 19, 1994, for unsatisfactory performance. The termination was predicated on four reasons: (1) her inability to work effectively in the cross-cultural setting; (2) her failure to establish effective working relationships with community agencies or schools; (3) her inability, in the majority of cases, to establish an ongoing therapeutic relationship with clients; and (4) her continued resistance and refusal to participate in active child abuse cases.
Ms. Kewley filed an appeal with the Board on April 4, 1994, which was dismissed for failure to make a non-frivolous showing of Board jurisdiction. The Board found that, as a probationary employee, she did not to have a right to appeal. Ms. Kewley then filed a complaint with the Office of Special Counsel ("OSC") *fn1 in which she claimed that she was terminated because of her whistleblowing activity. Nearly two years later, on March 22, 1996, the OSC completed its investigation, finding that Ms. Kewley's protected disclosure was not a contributing factor in the agency's decision to remove her.
Having exhausted her remedy with OSC, Ms. Kewley then filed an IRA appeal with the Board, in accordance with 5 U.S.C. § 1221, on April 23, 1996. The appeal, however, "was dismissed without prejudice on August 7, 1996, to allow the parties time to resolve difficulties over discovery and scheduling." Kewley, slip op. at 2. During this time, the agency did not comply with two requests for discovery from Ms. Kewley. After a prehearing order from the AJ, as well as a motion for sanctions, the agency had still not submitted the requested evidence. Ms. Kewley then re-filed her IRA on August 12, 1996.
Based on the agency's failure to meet the applicable discovery deadlines, the AJ granted Ms. Kewley's motion for sanctions. In his pre-hearing summary and order, the AJ stated that the agency's failure to comply with the order on discovery precluded it from relying on the "first three of its four reasons" for removing Ms. Kewley. He did allow the agency, however, to rely on the fourth reason, Ms. Kewley's continued resistance to participating in active child abuse cases, because sufficient evidence on that issue had been produced by the agency. Moreover, Ms. Kewley was able to present additional evidence on her own behalf to support her assertions on that issue.
At the September 17, 1996 hearing before the AJ, Ms. Kewley was the only witness. She testified on her own behalf and was cross-examined. The AJ found that Ms. Kewley failed to show that the protected whistleblowing disclosure was a contributing factor in her removal, and that, even if it had been, the agency demonstrated by clear and convincing evidence, as defined in 5 C.F.R. § 1209.4(d), that it would have removed her anyway. The evidence supporting this decision consisted of three pieces: (1) a confidential memorandum from Ms. Tower ("Tower memorandum"), recording her interview with an outside observer, Terry Boyd, a Bureau of Indian Affairs employee with whom Ms. Kewley had worked and who reported Ms. Kewley's "highly negative attitude" towards her participation in child abuse interviews; (2) a "to whom it may concern" letter dated March 17, 1994, from Connie Fox, Secretary of the Mental Health Program ("Fox letter"), which, although written in support of Ms. Kewley, was found to corroborate the agency's claim; and (3) the testimony of Ms. Kewley that she indeed declined to participate in child abuse cases because she did not feel it was compatible to be both the therapist and investigator.
In determining whether reprisal for whistleblowing activities occurred and whether corrective action is warranted, the Board is required by section 14 of the WPA, codified at 5 U.S.C. § 1221(e)(1)(A) & (B) (1994), to determine whether Ms. Kewley has shown by a preponderance of the evidence that the disclosure was "a contributing factor" in the agency's personnel action. If the disclosure was a contributing factor, the burden of proof shifts to the agency. Then the AJ must determine whether the agency has proven by clear and convincing evidence that it would have taken the same personnel action in the absence of the disclosure. See 5 U.S.C. § 1221(e).
This court must affirm a Board decision unless the petitioner establishes under 5 U.S.C. § 7703(c) (1994) that it is (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without adherence to procedures required by law, rule, or regulation; or (3) unsupported by substantial evidence. See Koyen v. Office of Personnel Management, 973 F.2d 919, 922 (Fed. Cir. 1992).
Ms. Kewley argues that after finding the timing to be "reasonable," the AJ may not lawfully consider evidence to rebut that finding because Congress has mandated that the burden of proof thereby shifts to the agency and that the agency must meet a higher standard of proof. She argues, therefore, that because the deciding official indisputably knew of the protected disclosure and the removal action was found to have occurred within a reasonable time of that disclosure, she per se met her statutory burden under section 1221(e)(1) to show, prima facie, that the disclosure was a contributing factor in the agency's personnel action. The AJ, however, held otherwise.
The relevant part of section 1221(e)(1) states that: The employee may demonstrate that the disclosure was a contributing factor in the personnel action through ...