Petition for review of the Merit Systems Protection Board in
Thomas Harrington, The Employment Law Group, PC, Washington,
DC, argued for petitioner. Also represented by Robert Scott
Jessica R. Toplin, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington,
DC, argued for respondent. Also represented by Lisa Lefante
Donahue, Robert Edward Kirschman, Jr., Joseph H. Hunt.
Wallach, Taranto, and Stoll, Circuit Judges.
Robert Smith worked at the General Services Administration
for nearly 30 years before GSA removed him. Mr. Smith
appealed that decision to the Merit Systems Protection Board,
asserting that the agency failed to show his actions
warranted removal and that the agency had retaliated against
him for his repeated disclosure of gross mismanagement and
Board agreed that Mr. Smith was a whistleblower and that his
protected disclosures contributed to the agency's
decision to remove him. The Board nevertheless affirmed the
agency's decision. Without addressing evidence relevant
to the agency's motive to retaliate or its treatment of
other similarly situated non-whistleblowers- legal error in
itself-the Board ruled that because the agency had introduced
strong evidence of misconduct, removal was justified. In
doing so, the Board conflated two distinct inquiries: whether
the agency's penalty was reasonable and whether the
agency would have imposed that same penalty absent
Mr. Smith's protected whistleblowing. This was error. The
Board additionally erred in sustaining certain charges.
Accordingly, we reverse those charges, affirm others, and
vacate the Board's decision. We remand for it to address
the merits of Mr. Smith's whistleblower defense, as well
as the agency's chosen penalty, under the proper legal
Smith began working at GSA in 1989. Over the course of his
career, he worked in various realty and financial management
positions, eventually becoming a Senior Financial Advisor.
For much of his career, Mr. Smith received positive
performance evaluations and faced no discipline. In each of
his fiscal year evaluations from 2006 through 2015, Mr. Smith
received either "highly" or "fully
successful" ratings, and in 2011, Mr. Smith received a
National Achievement Award for Asset Management.
time, Mr. Smith became concerned that GSA was
under-collecting rent and ineffectively managing its assets.
He began sending emails to the agency's regional
leadership describing these issues and advocating change.
See, e.g., J.A. 818-19 (asserting region was
"$47 million behind" in billing in April 2012),
822-956 (providing 134 pages detailing management failures in
March 2014), 978-1039 (arguing agency should "[r]eview
the consistency in which all regions have applied . . .
national policies and procedures" in July 2014), 1943-44
(describing "[t]he Road to Ineffective Management"
in November 2014).
Smith continued to send these emails, his immediate
supervisors began restricting his ability to correspond
directly with upper management. In late 2014, his second-line
supervisor informed him that sending such "message[s] to
the Regional Commissioner was inappropriate." J.A. 1940.
And his then first-line supervisor wrote that because
"the tone of many of your communications . . . is
inappropriate" and "concerns have been raised
regarding the accuracy of [your] information":
[A]ny communication that you wish to transmit (verbally or
electronically) to managers outside of the [group] must
be approved by me before doing so. Please note that
failure to comply with these instructions may result in
J.A. 961 (first emphasis added); see also J.A. 1948
(reiterating "[a]ny communication that you wish to
transmit (verbally or electronically) to managers outside of
[standard management channels] must be approved by me
before doing so").
2015, GSA reorganized, and Mr. Smith received a new
first-line supervisor and a revised position description. Mr.
Smith understood his new position description to eliminate
any communication restriction. Though his new supervisor
reiterated that "your new Position Description does not
supersede the communication instructions you received via
e-mail on December 11 and 12, 2014 from [your previous
supervisor]," J.A. 1932-33, Mr. Smith nevertheless sent
another email to upper management in December 2015. The
87-page document, titled "Performance Diagnostic: A
Guide to Move the Region to Performance Sustainability,"
identified areas of mismanagement and offered strategies to
recapture lost rents and reduce inefficiencies. J.A.
1848-1930. Additional emails followed in January and February
February 2016, Mr. Roman Augustus became Mr. Smith's
immediate supervisor. In March, he again instructed Mr. Smith
to "please communicate and coordinate with me via email
prior to generating, compiling and forwarding any reports,
direction, data requests or analytical narratives to the
region." J.A. 513. Shortly thereafter, Mr. Augustus
proposed that Mr. Smith be suspended for his failure to
follow his previous supervisors' similar communication
instructions. The agency imposed that suspension in June
the spring and summer of 2016, Mr. Smith's and Mr.
Augustus's relationship became increasingly contentious.
Mr. Augustus complained that Mr. Smith failed to timely
forward documents, and Mr. Smith responded by email
"[c]all me a liar-or just confront me with any mild
infraction of your rules-I can handle it." J.A. 1840.
During meetings, Mr. Smith challenged Mr. Augustus's
authority, stating, "[y]ou are my administrative
supervisor," "[y]ou cannot self-direct me,"
"[d]on't put regulations on me," J.A. 371-72,
"[y]ou're not supposed to be giving me tasks,"
and "I am next to you, not under you," J.A. 378-79.
In a letter, Mr. Smith complained to human resources that Mr.
Augustus's management approach amounted to "dictates
or child-like amonmondisshments [sic]." J.A. 1614. And
in another document, Mr. Smith urged agency officials that
"moving forward, [Mr. Augustus] is prohibited from
interfering with the duties, obligations, and authorities as
promulgated in the [2015 revised position description]."
J.A. 4. Mr. Augustus felt that on each of these five
occasions, Mr. Smith had been disrespectful.
Augustus responded by informing Mr. Smith that "such
conduct will not be tolerated and may result in disciplinary
action." J.A. 1840. He reprimanded Mr. Smith for failing
to follow instructions regarding how and when tasks should be
completed. And he issued a record of infraction, accusing Mr.
Smith of violating GSA's information technology
("IT") policy by leaving his computer access card
("PIV" card) unattended in his laptop in his
cubicle. Mr. Augustus did not acknowledge that Mr. Smith, a
quadriplegic, had never removed the PIV card from his laptop
because he was physically unable to do so.
September 14, 2016, Mr. Augustus proposed removing Mr. Smith
from his position. Mr. Augustus charged Mr. Smith with
failure to comply with IT policy, failure to follow
supervisory instructions, and disrespectful conduct towards a
supervisor. The deciding official determined that
"the reasons for [the] proposed removal fully support
and justify" removal, and the agency removed Mr. Smith
from his position. J.A. 1664.
Smith appealed to the Board, arguing that the charged conduct
did not merit discipline and that the agency was retaliating
against him for his whistleblowing. See 5 U.S.C.
§§ 7511-15; 5 C.F.R. § 1201.3(a)(1). The
Administrative Judge ("AJ") agreed that Mr. Smith
was a whistleblower because of his December 2015
"Performance Diagnostic" disclosure. The AJ further
found that, based on the timing, a reasonable person could
conclude that Mr. Smith's disclosure contributed to the
agency's decision to remove Mr. Smith. Nevertheless, the
AJ affirmed GSA's decision, concluding that the
government had shown by clear and convincing evidence that it
would have removed Mr. Smith regardless of his
began by considering the charges. The agency supported the
charge of failure to comply with IT policy with a single
specification that described Mr. Smith's failure to
remove his PIV card from his laptop. The AJ found that Mr.
Smith had notice of the IT policy and did not dispute that he
failed to remove his PIV card from his laptop as required by
that policy. Though it was undisputed that Mr. Smith could
not physically remove his PIV card from his laptop, the AJ
further found that Mr. Smith was not protected by the IT
policy's exception for persons with disabilities.
also sustained the charge of failure to comply with
supervisory instructions. GSA identified three incidents
supporting the charge: that Mr. Smith had sent a short email
on a weekend despite direction by Mr. Augustus not to work on
weekends, and that Mr. Smith had twice failed to timely
forward documents to Mr. Augustus in the manner instructed.
The AJ found that in all three instances, Mr. Smith admitted
both that he had received instructions from Mr. Augustus and
that he had not followed them.
the AJ sustained the charge of disrespectful conduct, which
relied on the five previously discussed statements made by
Mr. Smith to Mr. Augustus. Mr. Smith admitted to making each
of the statements, and the AJ found that all five were
"rude, discourteous, defiant, and/or challenging ...