Evidence to Show Retaliatory Motive

Wednesday, September 11, 2013

In Herman v. Department of Justice, 2013 MSPB 60 (Aug. 12, 2013), the Merit Systems Protection Board overturned an AJ's denial of the appellant's request for corrective action after the agency subjected him to adverse employment actions allegedly in retaliation for his whistleblower disclosures.

Appellant Herman was a human resource management examiner with the Bureau of Prisons as of the date of the decision. Herman filed an Individual Right of Action appeal alleging that the agency retaliated against him for his protected disclosures by taking the following personnel actions against him: issuing him two letters of counseling; giving him an unfavorable mid-year performance review; and reassigning him to a different position. Herman alleged that he made disclosures protected under the Whistleblower Protection Act, including that a manager violated the Privacy Act and that his first-level supervisor abused her authority by issuing two letters of counseling, issuing a critical mid-year performance review, and threatening to detail him to another position while indicating that if he applied for another position she would make it all go away.

The AJ exercised his discretion to take evidence on the merits issues in the order he deemed most efficient, and bifurcated the hearing to allow testimony only on the issue of whether the agency established by clear and convincing evidence that it would have taken the actions against the appellant in the absence of his whistleblowing. The AJ found that the agency proved by clear and convincing evidence that it would have taken the identified personnel actions notwithstanding Herman's disclosures.

On appeal, the Board found that the record was not sufficiently developed to determine whether the agency carried its burden by clear and convincing evidence. Specifically, the Board found that the AJ erred in limiting Herman's first-level supervisor's testimony regarding a meeting with Herman in which she allegedly mentioned that his second-level supervisor was out to destroy him. At hearing, in response to appellant's counsel's question, "Did you mention to him something to the effect that [his second-level supervisor] was out to destroy [Herman]," Herman's first-level supervisor replied, "No." At that point, agency counsel objected, and the AJ sustained the objection on the basis of relevance, despite the appellant's counsel's argument that the line of questioning would show that Herman's second-level supervisor pressured his first-level supervisor to take adverse employment actions against Herman. In addition, the AJ denied as untimely the appellant's motion to include additional witnesses and hearing exhibits, although he submitted the motion based on supplemental discovery responses he received following the pre-hearing conference.

The Board held that the AJ erred in excluding the testimony of Herman's first-level supervisor that might have suggested that his second-level supervisor had a retaliatory motive and that she influenced his first-level supervisor's personnel actions, either indirectly or directly. The Board also held that the AJ erred in denying appellant's motion to include additional witnesses and hearing exhibits, which might have shown further retaliatory motive. The Board cited McCarthy v. Int'l Boundary & Water Comm'n, 116 MSPR 594 (2011), in stating, "Direct evidence of an agency official's retaliatory motive is typically unavailable because such motive is almost always denied. Therefore, federal employees are entitled to rely on circumstantial evidence to prove a motive to retaliate." Here, the Board held, the AJ did not afford Herman the opportunity to do this.

The Board added that the AJ's evidentiary rulings were occasioned, at least in part, by his decision to bifurcate the hearing and proceed directly to the clear and convincing evidence issue without deciding whether the appellant made a protected disclosure that was a contributing factor to a personnel action. The Board advised that bifurcation should be reserved for unusual cases.

Herman has been afforded another opportunity to litigate his whistleblower case using evidence that he was previously unable to use.