Tenth Circuit: Intimidating Witnesses for Testimony Is Not Lawful Assistance Protected under the Whistleblower Protection Act
This case law update was written by Michael J. Sgarlat, an attorney at the law firm of Shaw Bransford & Roth, where he has practiced federal personnel and employment law since 2015. Mr. Sgarlat works with federal employees to respond to proposed disciplinary and adverse actions, and has experience litigating cases before the U.S. Merit Systems Protection Board.
In October 2017 Larry Baca began to work as a Supervisory Engineer, GS-13, and the Chief of Operations and Maintenance Division in the Directorate of Public Works at the U.S. Army White Sands Missile Range in New Mexico.
In July 2018, Baca received a notice of proposed removal, charging him with “conduct unbecoming a federal employee,” “interfering with an agency investigation, “abusive, offensive, disgraceful or inflammatory language,” and “lack of candor.” Baca replied in writing to the proposal, contending that every charged offense was a “False Utterance.”
On September 18, 2018, Baca was removed from his position. He then appealed his removal to the Merit Systems Protection Board (Board), asserting three affirmative defenses. An administrative judge (AJ) adjudicated the appeal in an initial decision, and sustained two of the three charges (“conduct unbecoming a federal employee” and “abusive, offensive, disgraceful or inflammatory language”) and the removal penalty.
The charge of “conduct unbecoming a federal employee” was based on several specifications of alleged misconduct by Baca, including allegations by five colleagues that he showed them pornography at work, and allegations by two female colleagues that Baca made unwanted romantic advances and inappropriate comments towards them. One of these colleagues, Robin Pritchett, filed an EEO sexual harassment complaint against Baca in March 2018. Thereafter, in May 2018, Baca filed an EEO sexual harassment complaint against Pritchett.
The charge of “abusive, offensive, disgraceful or inflammatory language” involve several occasions where Baca allegedly used derogatory terms to refer to his colleagues. Several of these allegations involved Baca using derogatory Spanish terms to refer to his colleagues.
The AJ also rejected each of Baca’s affirmative defenses and affirmed the removal. Baca originally asserted that his removal was retaliation for his refusal to follow two unlawful orders by his supervisor to sign off on an expensive janitorial contract. He later amended his affirmative defenses, claiming that his removal was reprisal for a whistleblower disclosure against Pritchett, two whistleblower disclosures of “gross mismanagement” related to a janitorial contract, and an EEO discrimination complaint.
The initial decision became the final decision of the Board on April 4, 2019, after neither party petitioned for further review. Baca appealed the Board’s decision with respect to one affirmative defense – his removal was reprisal for whistleblowing against Pritchett.
Baca’s reprisal claim relates to a disclosure he made to his supervisor involving a meeting that occurred in Pritchett’s office on March 7, 2018. Present at that meeting were Baca, Pritchett, and another colleague, Bill Hulls. During this meeting, yet another coworker, Gus Alvidrez, entered the room. Pritchett allegedly got angry and asked Alvidrez to leave and slammed the door shut behind him. Baca claimed he heard the doorknob strike Alvidrez in the back and that Baca told Pritchett she hit Alvidrez with the door. The next day, on March 8, 2018, Baca asked Huls to provide a written statement related to the meeting. Huls denied Baca’s invitation to submit a statement.
The Army denied Baca’s version of events, and asserted that Baca sought to intimidate and pressure Huls into providing a statement to support Baca’s version of events. Later, on March 16th, Huls did provide a statement, but at the request of his supervisor, not Baca. In Huls’s statement, he described that Pritchett was by the door when Alvidrez turned around to leave and did grab the door and shut it. However, he could not confirm she slammed the door because the door had a broken closure, which could have caused it to sound like it was slammed. Ultimately, an AR 15-6 investigation was conducted into the alleged assault. The investigation concluded that Pritchett did not strike Alvidrez with the doorknob.
Baca file a petition for review with the U.S. Court of Appeals for the Tenth Circuit. On review, the court first addressed two jurisdictional questions of first impression. The first was whether the court has jurisdiction to review a whistleblower retaliation claim brought before the Board as an affirmative defense to an employment action. The second was whether the court has jurisdiction over a case raising both discrimination and whistleblower retaliation defenses before the Board where the discrimination claim has been waived on appeal. The court confirmed it had jurisdiction to review both.
The court noted that the Court of appeals for the Federal Circuit generally has jurisdiction over final decisions by the Board under 5 U.S.C. § 7703(b)(1)(A), but the court stated that there are two exceptions to this. First, an appeal that challenges an adverse employment action based on a claim of prohibition discrimination must be appealed to the appropriate federal district court. Second, under 5 U.S.C. § 7703(b)(1)(B), a petition for judicial review of a final decision of the Board that raises no challenge to the Board’s disposition of certain prohibited personnel practices found in 5 U.S.C. § 2302(b) shall be filed with the Federal Circuit “or any court of appeals of competent jurisdiction.”
Citing the second exception under 5 U.S.C. § 7703(b)(1)(B), the court found that it has jurisdiction over appeals from final Board decisions on whistleblower claims where the claims arise either directly or as affirmative defenses.
Also, the court stated that under 5 C.F.R. §§ 1201.120 and 1201.157, an aggrieved employee may obtain judicial review under 5 U.S.C. § 7703 where the employee “elects to waive the discrimination issue” on appeal. Here, Baca filed an explicit waiver of his discrimination claim and only appealed the denial of one of his other affirmative defenses. Thus, the court found it has jurisdiction under 5 U.S.C. § 7703 to review the case.
The court then reviewed Baca’s reprisal claim. Baca contended the AJ ignored evidence that he sought a statement from Huls to assist Alvidrez exercise his right to disclose the alleged assault, and that “[t]estifying for or otherwise lawfully assisting any individual in the exercise” of the right to an appeal, complaint, or grievance granted by law is protected under the Whistleblower Protection Act (WPA), 5 U.S.C. § 2302(b)(9)(B). Baca cited Whitmore v. Dep’t of Labor, 680 F.3d 1353 (Fed. Cir. 2012), arguing that it is error for the Board not to evaluate all evidence in determining whether an element of a claim or defense has been proven adequately. The court responded that while the Board must consider all pertinent evidence, it need not discuss each piece in its decision.
Nonetheless, the court explained that the AJ found that Baca tried to intimidate Huls into providing a statement, which is not a covered protected activity. The AJ credited Huls’s statement to his supervisor, where he explained he felt “uncomfortable” when Baca asked him for a statement. A statement from another coworker also described that Baca was in Huls’s office for almost three hours requesting a statement from him.
The court stated that intimidating a witness into providing a false statement is not protected conduct under the WPA, and what the WPA protects is an employee for “testifying for or otherwise lawfully assisting” another in the exercise of their right as a whistleblower. The court explained that while providing lawful assistance is protected activity, attempting to intimidate Huls to secure a statement violated policy and was not lawful assistance. Thus, the court held that although Baca may have had a duty to investigate and Alvidrez may have had a right to report any injury, Baca’s attempt to intimidate Huls was not protected conduct.
The court ruled that Baca did not make a protected disclosure, and did not address the rest of Baca’s arguments that he was entitled to relief under the Whistleblower Protection Act. The court affirmed the decision of the Board.
Read the full case: Baca v. Department of Army
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