Mogyorossy v. Department of the Air Force , 198 F. App'x 950 ( 2006 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not
citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
06-3095
JULIUS E. MOGYOROSSY,
Petitioner,
v.
DEPARTMENT OF THE AIR FORCE,
Respondent.
____________________________
DECIDED: September 8, 2006
____________________________
Before LOURIE, Circuit Judge, PLAGER, Senior Circuit Judge, and RADER, Circuit
Judge.
PER CURIAM.
DECISION
Julius E. Mogyorossy (“Mogyorossy”) appeals from the final decision of the Merit
Systems Protection Board (the “Board”) holding that his removal by the Department of
the Air Force (the “agency”) was not a retaliatory personnel action prohibited under the
Whistleblower Protection Act (“WPA”), 5 U.S.C. § 2302(b)(8). Mogyorossy v. Dep’t of
the Air Force, SF-1221-03-0102-B-2 (M.S.P.B. Oct. 5, 2005). We affirm.
BACKGROUND
Mogyorossy began probationary employment as a security guard at the Onizuka
Air Force Station in Sunnyvale, California on June 18, 2001. The Department of the Air
Force terminated him, effective February 8, 2002, before the completion of his
probationary period, for having a poor attitude in dealing with co-workers, for sleeping
on duty, and for making inappropriate comments about a female co-worker.
Mogyorossy filed an appeal of that action to the Board, as well as a motion to stay his
termination. Mogyorossy v. Dep’t of the Air Force, SF-315H-02-0319-I-1 (M.S.P.B. July
3, 2002). That appeal was dismissed for lack of jurisdiction due to the limited appeal
rights of probationers and because Mogyorossy had not exhausted his remedies before
the Office of Special Counsel (“OSC”) with regard to his allegations that the agency
retaliated against him for whistleblowing. The Board also dismissed Mogyorossy’s stay
request. Mogyorossy v. Dep’t of the Air Force, SF-315H-02-0319-I-1 (M.S.P.B. April 1,
2002).
Mogyorossy then filed a complaint at the OSC, alleging that he was terminated
because of disclosures that were protected under the WPA. The OSC failed to act
within 120 days, entitling Mogyorossy to appeal to the Board. 5 U.S.C. § 1214(a)(3).
Having exhausted the required proceedings before the OSC as to the allegedly
retaliatory action, Mogyorossy filed a timely individual right of action appeal to the
Board. The Administrative Judge (“AJ”) dismissed Mogyorossy’s appeal for lack of
jurisdiction, and Mogyorossy sought review by the full Board. Mogyorossy v. Dep’t of
the Air Force, SF-1221-03-0102-B-2 (M.S.P.B. Feb. 6, 2003).
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On August 19, 2004, the Board granted his petition, reversing the AJ’s Initial
Decision and remanding the appeal for further adjudication. Id., slip op. at 13.
Specifically, the Board found that the following, if proven, would constitute protected
disclosures: (1) Mogyorossy’s alleged disclosure to his immediate supervisor, Captain
Alvin McCormick, that the agency failed to pay Security Guards overtime up to ½ hour
each day for 2 weeks following September 11, 2001, which the appellant valued at
approximately $50; (2) his alleged disclosure to McCormick that he would have filed a
grievance at the Inspector General’s (“IG”) Office because he and other employees
were not being given rest breaks to which they were legally entitled for a period of
several months; and (3) a complaint that he allegedly lodged on January 23, 2003 with
Major Talarico of the IG Office concerning the same issues. Id., slip op. at 4-5, 9-10.
The Board noted that termination during a probationary period and placement on
administrative leave are personnel actions upon which an individual right of action
appeal may be based, and that Mogyorossy had made non-frivolous allegations that
protected disclosures contributed to those personnel actions later taken against him.
Id., slip op. at 10-11. However, the Board also noted that in an initial right of action
appeal, the Board does not review the actual merits of the personnel action, viz.,
termination, but rather, it reviews the merits of the appellant’s claim that he was
retaliated against for whistleblowing. Id., slip op. at 13.
On remand, the AJ dismissed the appeal, presumably for lack of prosecution,
without prejudice, because neither the Board nor the agency were able to locate
Mogyorossy. Mogyorossy v. Dep’t of the Air Force, SF-1221-03-0102-B-2, slip op. at 2
(M.S.P.B. Mar. 24, 2005). That second initial decision became final on November 19,
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2004, when neither party filed a petition for review. Id. Thereafter, the AJ received
contact from Mogyorossy indicating that he wished to proceed with his appeal; the AJ
determined that the contact was timely and reopened the appeal. Id. On March 24,
2005, the AJ denied Mogyorossy’s request for corrective action, concluding that
Mogyorossy did not show by a preponderance of the evidence that he made any
protected disclosures, and holding that the agency had established by clear and
convincing evidence that it would have placed Mogyorossy on administrative leave and
later terminated him regardless of any proven, protected disclosures. Id., slip op. at 8,
10, 13.
Mogyorossy sought review by the full Board, the Board denied his petition, and
the AJ’s decision accordingly became the final decision of the Board. See 5 C.F.R.
§ 1201.113(b) (2006). Mogyorossy timely appealed to this court, and we have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a decision of the Board is limited. We
must affirm the Board’s decision unless it was “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2) obtained without procedures
required by law, rule, or regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c) (2000); see Briggs v. Merit Sys. Prot. Bd.,
331 F.3d 1307, 1311 (Fed. Cir. 2003).
On appeal, Mogyorossy argues that the government committed “the crime of
intentionally denying [him] ‘justice,’” and seeks one billion dollars in redress. The
government responds that the Board’s decision was neither arbitrary nor capricious, that
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it was in accordance with law, and that it was supported by substantial evidence.
We agree with the government that the Board’s decision was supported by
substantial evidence and in accordance with law. To establish a prima facie case of
retaliation for whistleblowing activity, an employee must show both that he engaged in
whistleblowing activity by making a disclosure protected under 5 U.S.C. § 2302(b)(8)
and that the protected disclosure was a contributing factor in a personnel action. See 5
U.S.C. §§ 1221(e)(1), 2302(b)(8). If a plaintiff establishes a prima facie case of
retaliation for whistleblowing, corrective action must be ordered unless “the agency
demonstrates by clear and convincing evidence that it would have taken the same
personnel action in the absence of such disclosure.” 5 U.S.C. § 1221(e)(2); Carr v.
Social Sec. Admin., 185 F.3d 1318, 1322 (Fed. Cir. 1999).
Here, there is no dispute that Mogyorossy failed to show by preponderant
evidence that his alleged disclosures took place, or that his disclosures were a
contributing factor in either of the personnel actions at issue. The only evidence he
presented were written assertions that were not under oath. The Board found those
assertions to be not credible in light of other evidence, including sworn testimony and
documents. Further, Mogyorossy does not challenge the Board’s determination that the
agency would have placed him on administrative leave and terminated him from his
probationary employment, regardless of any alleged protected disclosure. The reasons
for his termination speak for themselves. We therefore affirm the Board’s decision.
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