Absence of Evidence Cannot Favor Agency Defense Against Whistleblower Reprisal Claim

Last week, FEDagent reported on the Federal Circuit’s decision in Siler v. EPA, on the issue of whether EPA adequately asserted the attorney-client privilege to withhold documents from Siler during the discovery phase of his MSPB appeal his removal from federal service. This week, we report on the portion of the court’s decision that vacated the MSPB’s denial of Siler’s whistleblower reprisal affirmative defense and remanded the matter to MSPB for further proceedings.

Siler was a Special Agent in EPA’s Criminal Investigation Division. While employed with EPA, Siler operated a personal business selling military collectibles and firearms. In 2014, a business contractor complained about Siler’s business conduct and EPA’s Office of Inspector General investigated the matter. In January 2015, EPA OIG cleared Siler of criminal charges and transmitted its report to Siler’s chain of command for “administrative review and any action deemed appropriate.” EPA then returned Siler to work on light duty.

In June 2015, a management investigator interviewed Siler as one of several witnesses to a misconduct allegation against Siler’s second-line supervisor, Special Agent in Charge Randall Ashe. Siler “reluctantly” told the investigator that Ashe had been sleeping at his desk and smelled of alcohol while on duty. Other witnesses testified similarly.

On July 2, 2015, the management investigator sent his report, including Siler’s statements, to CID leadership. Two weeks later, CID leadership met and initiated a supplemental administrative investigation into Siler’s personal business. That investigation concluded Siler had engaged in conduct unbecoming a criminal investigator related to the business, improperly used his government computer for the business, and failed to report the outside business. On those findings, EPA proposed and sustained Siler’s removal less than a year before Siler became eligible for retirement. Siler appealed his removal to the MSPB.

Siler argued to a MSPB administrative judge that his June 2015 statements to the management investigator regarding Ashe sleeping at his desk and smelling of alcohol while on duty constituted protected whistleblowing that caused EPA to retaliate against him. The administrative judge agreed Siler’s statements were protected whistleblowing activity that “contributed to his removal,” but affirmed Siler’s removal on her conclusion that EPA had proved it would have removed Siler even without his protected disclosures. Because the MSPB lacks a quorum to adjudicate appeals from decisions of its administrative judges, Siler appealed the administrative judge’s decision to the U.S. Court of Appeals for the Federal Circuit.

The Federal Circuit held the administrative judge erred in reasoning that EPA would have removed Siler despite his protected disclosures. The court said the administrative judge correctly identified Carr v. Social Security Administration as requiring consideration of three factors to determine whether an agency would have removed an employee absent his whistleblowing. But, the court held, the administrative judge failed to correctly apply the Carr factors to Siler’s case. 

Under Carr, to determine whether an agency would have removed an employee absent his whistleblowing, the MSPB must consider: (1) the strength of the agency’s evidence in support of its personnel 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 similar situated. Where the agency fails to prove its case by the Carr factors, the MSPB “has no discretion to affirm a penalty tainted by illegal reprisal, even if the agency’s penalty might otherwise have been reasonable,” the court stressed in Siler’s case.

The court began its analysis with Carr factor 3. The administrative judge found “most telling” that EPA did not retaliate against other “whistleblowers” who testified in the June 2015 management inquiry against Ashe and held the factor favored EPA’s case. The court held both findings to be error.

First, the court emphasized that Carr factor 3 examines any evidence the agency takes similar actions against employees who are “not whistleblowers but who are otherwise similarly situated.” The administrative judge thus erred by considering other Ashe whistleblowers instead of “the agency’s treatment of non-whistleblower employees accused of similar misconduct, the precise inquiry considered under Carr factor 3.”

Second, the court connected the dots of statute and its precedent to explain why the administrative judge erred in concluding Carr factor 3 favored EPA. Under Title 5, once a whistleblower shows his protected activity contributed to an adverse action against him, the agency bears the burden of showing it would not have removed the employee absent any whistleblowing. And the Federal Circuit has held the “risk associated with having no evidence on the record” for a particular Carr factor “falls on the government.” The court thus concluded that in cases such as Siler’s, where the MSPB “finds an absence of relevant comparator evidence, the third Carr factor cannot favor the government.”

The court then addressed Siler’s Carr factor 2 argument, that the administrative judge insufficiently considered EPA’s treatment of Ashe in determining that “none of the relevant officials…had a strong motive to retaliate.” The court agreed and instructed the MSPB to consider the issue on remand. 

The Federal Circuit thus vacated the Administrative Judge’s decision and remanded it to the MSPB for further proceedings consistent with the Court’s decision, including the Court’s reversal of the Administrative Judge’s attorney-client privilege ruling that FEDagent covered last week.

Read the full opinion: Siler v. EPA

This case law update was written by James P. Garay Heelan, Associate Attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update


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