Agoranos v. DOJ , 602 F. App'x 795 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PETER J. AGORANOS,
Petitioner
v.
DEPARTMENT OF JUSTICE,
Respondent
______________________
2014-3209
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-0432-11-0182-B-1, CH-1221-11-0466-B-
1.
______________________
Decided: February 9, 2015
______________________
PETER J. AGORANOS, Gilberts, IL, pro se.
KARA WESTERCAMP, Commercial Litigation Branch
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
ELIZABETH ANNE SPECK, JOYCE R. BRANDA, ROBERT E.
KIRSCHMAN, JR., ALLISON KIDD-MILLER.
______________________
Before LOURIE, O’MALLEY, and REYNA, Circuit Judges.
2 AGORANOS v. DOJ
PER CURIAM.
Peter J. Agoranos (“Agoranos”) appeals the decision of
the Merit System Protection Board (“Board”) affirming his
removal from the position of Intelligence Research Spe-
cialist with the Drug Enforcement Administration (“DEA”
or “agency”) and denying his Individual Right of Action
(“IRA”) appeal requesting corrective action under the
Whistleblower Protection Act, 5 U.S.C. § 2302(b) (2012)
(“WPA”). Because we find that substantial evidence
supports the Board’s conclusion that the DEA demon-
strated by clear and convincing evidence that Agoranos
would have been removed even if he had not made a
disclosure protected by the WPA, we affirm.
I.
A.
Agoranos served as an Intelligence Research Special-
ist for the DEA’s Chicago Field Division from November 4,
2001 until his removal on November 9, 2010. Agoranos
began working under the supervision of Group Supervisor
Lynette Georgevich. His initial job performance ratings
were “acceptable,” but by 2003 his evaluation identified a
need for performance improvement and coworkers had
entered complaints regarding the quality of Agoranos’s
work product and interpersonal skills. Georgevich conse-
quently issued a written notice on January 27, 2004,
informing Agoranos that he needed to improve his work
product. In response, Agoranos filed a grievance against
Georgevich.
Although Agoranos’s interactions with coworkers con-
tinued to be strained in 2005, Georgevich again gave
Agoranos an acceptable rating for his job performance. In
2006, Agoranos’s performance declined once more. After
another complaint by Agoranos against Georgevich,
Georgevich felt she could no longer effectively manage
Agoranos, and the DEA reassigned Agoranos to Field
AGORANOS v. DOJ 3
Intelligence Manager Patrick O’Dea in October 2006.
Agoranos’s performance continued to wane, meriting a
“less than acceptable level” by 2007. Special Agent in
Charge Gary Olenkiewicz also “strongly recommended”
that Agoranos seek a psychological exam in June 2007.
Because of the low performance rating, O’Dea issued a
performance expectations memorandum outlining Agora-
nos’s job expectations, but Agoranos failed to meet those
expectations due to, inter alia, poor writing, inadequate
reports, and inaccurate information. O’Dea thus denied
Agoranos a within-grade pay increase in 2008 because of
his inability to perform at acceptable levels, and gave him
an “unacceptable” performance rating on his 2008 evalua-
tion. From July 2007 to June 2009, Agoranos also re-
quested reassignment to vacant Intelligence Research
Specialist positions thirty-one times—the DEA rejected
all of his requests.
After his 2008 evaluation, the DEA placed Agoranos
on a performance improvement plan (“PIP”) under the
supervision of Group Supervisor Kevin Quinlan. Quinlan
met with Agoranos weekly, but Agoranos still failed to
consistently correct writing deficiencies, such as reporting
inaccuracies, grammar, and formatting. Based on the PIP
results, on May 6, 2009, O’Dea recommended that Agora-
nos be removed from his position as an Intelligence Re-
search Specialist. The DEA issued a notice of proposed
removal on January 7, 2010, requesting Agoranos’s re-
moval due to his alleged failure to achieve acceptable
performance in Critical Element 1 – Technical Compe-
tence/Results and Critical Element 2 – Communications.
Special Agent James Reed acted as the deciding official in
Agoranos’s removal.
Agoranos claims to have made a series of disclosures
from 2004 through 2007 that are the crux of this appeal.
Agoranos asserts that he informed Georgevich in March
2004 that a coworker had solicited $10 from other em-
ployees to enter into a pool to guess when another
4 AGORANOS v. DOJ
coworker would have a baby. Agoranos also claims to
have informed Georgevich in May 2005 that he overheard
a special agent and two task work officers discussing the
possibility of using time spent performing surveillance
work to also look for vacant lots to build custom homes.
Finally, it is undisputed that, in February 2007, Agoranos
reported to supervisor Timothy McCormick that he ob-
served DEA employees selling betting squares for an
office pool for the upcoming Super Bowl. Resident Agent
in Charge Mark Giuffre and Diversion Group Supervisor
James Portner investigated the accusations, and eventu-
ally reprimanded one employee.
Special Agent Reed testified that he reviewed all ma-
terials associated with Agoranos’s notice of proposed
removal, including those materials relating to Agoranos’s
claim that he had made whistleblower disclosures, and
concluded that removal was warranted. Special Agent
Reed also testified that he spoke with an attorney at the
Chief Counsel’s office during his investigation, and re-
viewed Agoranos’s entire personnel file, even though it
was not part of the proposed removal record. The DEA
officially removed Agoranos on November 9, 2010.
B.
Agoranos filed two separate challenges related to his
removal. He first submitted a whistleblower complaint
with the Office of Special Counsel (“OSC”) on October 15,
2010. Agoranos alleged that his three whistleblower
disclosures led to eight personnel actions: (1) October
2006 reassignment to a different supervisor; (2) June
2007 recommendation that Agoranos receive a psychologi-
cal evaluation; (3) July 2007 through June 2009 failure to
select Agoranos for thirty-one open Intelligence Research
Specialist positions; (4) 2007 and 2008 assignment of
unacceptable performance ratings; (5) 2008 denial of
within-grade pay increase; (6) February 2009 placement
AGORANOS v. DOJ 5
on a PIP; (7) January 2010 issuance of a notice of pro-
posed removal; and (8) November 2010 removal.
OSC reviewed Agoranos’s complaint, but concluded
that there were no reasonable grounds to find that the
DEA took any action due to a prohibited personnel prac-
tice. OSC found that, for the March 2004 disclosure,
there was no significant adverse action close in time to
the disclosure, and for the May 2005 disclosure, Agoranos
had no firsthand evidence that the employees at issue had
taken any impermissible actions. For the February 2007
disclosure, OSC found that coworkers made hostile com-
ments to Agoranos and ostracized him due to the disclo-
sure, leading Agoranos to seek mental health treatment,
but also found that he would be unlikely to be successful
in alleging retaliatory action under 5 U.S.C. § 2302(b)(8)
because he could not prove that the disclosure was a
contributing factor in subsequent adverse personnel
actions. Because OSC declined to further investigate his
complaint, Agoranos filed an IRA appeal requesting
corrective action with the Board on April 8, 2011.
On November 29, 2010, Agoranos separately appealed
to the Board, challenging his removal under Chapter 43 of
Title 5 of the United States Code. An administrative
judge (“AJ”) consolidated Agoranos’s separate appeals by
dismissing the Chapter 43 removal action, and reviewing
the propriety of his removal as part of his IRA request for
corrective action. Agoranos v. Dep’t of Justice, No. CH-
0432-11-0182-I-1, 2011 MSPB LEXIS 3259 (M.S.P.B. May
23, 2011). By dismissing the Chapter 43 removal action,
the AJ also declined to hear Agoranos’s due process and
procedural error affirmative defenses to his removal. The
AJ then denied Agoranos’s appeal on the merits in an
initial decision issued on March 1, 2012. Agoranos v.
Dep’t of Justice, No. CH-1221-11-0466-W-1, 2012 MSPB
LEXIS 1123 (M.S.P.B. March 1, 2012) (“Initial AJ Deci-
sion”).
6 AGORANOS v. DOJ
The AJ first determined that Agoranos failed to prove
by preponderant evidence that he made qualifying disclo-
sures, in March 2004 regarding the baby-betting pool, or
in May 2005, regarding the private construction contract
work. Id. at *3–6. For the February 2007 Super Bowl
betting pool disclosure, the AJ found that Agoranos
proved by preponderant evidence that he made a viable
whistleblowing disclosure. Id. at *7–8. The AJ concluded,
however, that Agoranos failed to prove that the Super
Bowl disclosure was a contributing factor in the 2006
reassignment under the “knowledge/timing test.” Id. at
*8–9 (citing Carey v. Dep’t of Veterans Affairs, 93 M.S.P.R.
676, 681 (2003)). For the 2007 recommendation that
Agoranos receive a psychological examination, the AJ
concluded that Agoranos had established that the disclo-
sure was a contributing factor, but “[t]he appellant lost no
pay or benefits as a result of the personnel action, and
effective relief cannot be granted to return the appellant
to the status quo ante.” Id. at *9–10.
As for the other, “performance-related” personnel ac-
tions, the AJ found the requirements of the
knowledge/timing test were satisfied because the actions
“occurred within a relatively short time after the appel-
lant’s Super Bowl betting disclosure” and all officials,
with the exception of Quinlan, knew of the disclosure. Id.
at *10–16. Though he concluded that Agoranos had met
his burden to prove his 2007 disclosure was a contributing
factor to those performance-related actions, the AJ found
that the agency had shown “by clear or convincing evi-
dence that it would have taken the personnel actions
notwithstanding the appellant’s disclosure.” Id. at *16–
22. The AJ concluded that there was extensive evidence
demonstrating Agoranos’s unacceptable performance, the
2007 disclosure presented no motive for retaliation, and
the agency took similar actions against similarly-situated
employees. Id. at *17–19. The AJ thus denied Agoranos’s
request for corrective action.
AGORANOS v. DOJ 7
Agoranos filed a petition for review with the Board,
and the Board affirmed-in-part and vacated-in-part the
initial decision. Agoranos v. Dep’t of Justice, 119 M.S.P.R.
498 (2013) (“Initial Board Decision”). As an initial mat-
ter, the Board reviewed the AJ’s decision to: (1) dismiss
the removal action, (2) hear the challenge to the removal
action as part of the IRA request for corrective action, and
(3) decline to hear Agoranos’s affirmative defenses to
removal of denial of due process and harmful procedural
error. Id. at ¶¶13–18. The Board concluded that the DEA
removed Agoranos without notifying him of the effect of
his election to pursue corrective action with the OSC
rather than to pursue a direct appeal to the Board. Id. at
¶17. Because Agoranos’s filing of his OSC complaint “did
not constitute a valid, informed election,” the Board found
that Agoranos could still assert his denial of due process
and harmful procedural error defenses to his removal. Id.
The Board, accordingly, reopened Agoranos’s removal
appeal for further adjudication by the AJ. Id.
The Board then analyzed the merits of the AJ’s find-
ings regarding Agoranos’s protected disclosure. First, the
Board concluded that Agoranos failed to provide a rea-
soned basis to disturb the AJ’s findings regarding the
alleged 2004 and 2005 disclosures. Id. at ¶19. The Board
then affirmed the AJ’s contributing factor conclusion for
the performance-related actions, but vacated the AJ’s
conclusions regarding the lateral transfer requests. Id. at
¶¶20–26. In particular, the Board agreed that, though
some of the performance-related actions were taken more
than two years after the Super Bowl disclosure, the
“performance-based actions . . . form one continuous chain
. . . or in other words a continuum.” Id. at ¶¶22–23. With
regards to the lateral transfers, the Board remanded,
directing the AJ to “look beyond the knowledge-timing
test” to determine if there was any taint on those deci-
sions caused by the Super Bowl disclosure even though
the transferring official testified that he was unaware of
8 AGORANOS v. DOJ
any disclosures by Agoranos. Id. at ¶¶24–25. Finally, the
Board directed the AJ to reconsider his analysis of the
agency’s burden to show that it would have taken the
same actions against Agoranos absent the protected
disclosure. Based on our decision in Whitmore v. Depart-
ment of Labor, 680 F.3d 1353 (Fed. Cir. 2012), the Board
concluded that the AJ had failed to properly consider the
countervailing evidence presented by Agoranos. Id. at
¶¶27–33.
On remand, the AJ affirmed the agency’s removal ac-
tion and again denied Agoranos’s request for corrective
action. Agoranos v. Dep’t of Justice, No. CH-1221-11-
0466-W-1, 2013 MSPB LEXIS 5091 (M.S.P.B. Sept. 23,
2013) (“Remand Decision”). In reviewing the DEA’s
removal action, the AJ first determined that the agency
met its initial burden to show by substantial evidence
that the agency used valid performance standards to
analyze Agoranos’s work. Id. at *3–4. The AJ concluded
that the agency’s allegations of unacceptable performance
were sufficiently supported by both testimonial and
documentary evidence, and that “a reasonable person
might conclude the appellant was afforded a reasonable
opportunity to improve his performance to an acceptable
level.” Id. at *12–14. The AJ then analyzed Agoranos’s
affirmative defenses that the DEA violated his due pro-
cess rights and committed procedural errors by using
Special Agent Reed as the deciding official in his removal
proceeding. Id. at *14–19. Agoranos claimed that Special
Agent Reed impermissibly participated in prior investiga-
tions relating to this case, that Special Agent Reed en-
gaged in ex parte conversations with an employee at the
Office of Chief Counsel regarding this case, and that
Special Agent Reed secretly reviewed Agoranos’s person-
nel file. Id. at *14. The AJ concluded that there was no
due process violation caused by these ex parte communi-
cations because Special Agent Reed did not consider any
new or material evidence that would have prejudiced his
AGORANOS v. DOJ 9
decision-making. Id. at *14–18. As for the claim of
harmful procedural error, the AJ found nothing in the ex
parte communications that led Special Agent Reed to
reach a different conclusion than he would have reached
in the absence of the communications. Id. at *18–19.
The AJ then reviewed the request for corrective action
under the WPA. The AJ adopted all of the findings and
determinations from the Initial AJ Decision that had been
affirmed by the Board. Id. at *20. For the contributing
factor analysis of the lateral transfer requests, the AJ
reviewed the “totality of circumstances” and concluded
that, even though O’Dea provided information to the
deciding official, O’Dea’s disclosures did not taint the
transfer request process because, according to the decid-
ing official, only employees with superior performance
ratings typically receive the requested transfers. Id. at
*21–23. Agoranos’s history of substandard performance
ratings thus made his selection highly unlikely. Id. The
AJ then reanalyzed, under Whitmore, if the agency had
shown by clear and convincing evidence that it would
have taken the same actions against Agoranos absent the
protected disclosure. Id. at *24–34. Explicitly applying
the factors identified by our court in Carr v. Social Securi-
ty Administration, 185 F.3d 1318 (Fed. Cir. 1999), the AJ
again concluded that “[t]here is overwhelming evidence,
consisting of documents and testimony, that supports the
agency’s determination [that] the appellant was not
performing at an acceptable level.” Id. at *30. The AJ
also found that the agency’s action was consistent with its
treatment of another, similarly-situated employee who
had not made a protected disclosure, even though that
employee resigned before the agency could remove her.
Id. at *32–33. And finally, the AJ found there was little
motive for the agency to retaliate, as the disclosure at
issue was “relatively minor.” Id. at *33.
Agoranos again sought review by the Board. Agora-
nos v. Dep’t of Justice, 121 M.S.P.R. 382 (2014) (“Final
10 AGORANOS v. DOJ
Board Decision”). Agoranos did not appeal the AJ’s
findings that the agency proved its performance stand-
ards were valid and that the agency gave Agoranos a
reasonable opportunity to improve; and, regardless, the
Board found sufficient evidence supporting the AJ’s
decision on these matters. Id. at 382 n.3. The Board then
gave significant weight to the AJ’s review of the evidence
regarding the impact of the ex parte communications on
Special Agent Reed’s ability to make an impartial deci-
sion, and found no error in the AJ’s finding that there was
no due process violation. Id. at 382. The Board also
concluded that Agoranos failed to meet his burden of
showing that any of the ex parte communications intro-
duced “new and material evidence” or provided “undue
pressure” on Special Agent Reed. Id. Finally, the Board
determined that the AJ appropriately considered all facts
and properly applied the law in denying the request for
corrective action. Id.
Agoranos timely appealed to this Court, and we have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
II.
Our review of the Board’s decisions is limited by stat-
ute. 5 U.S.C. § 7703(c). We only set aside the Board’s
actions, findings, or conclusions that are:
(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 . . . .
Id. Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” McLaughlin v. Office of Pers. Mgmt., 353
F.3d 1363, 1369 (Fed. Cir. 2004) (citation and internal
quotation marks omitted).
AGORANOS v. DOJ
11
The WPA prevents agencies from taking adverse per-
sonnel actions against employees in response to protected
disclosures made by the employees. The Act states, in
relevant part, that:
(b) Any employee who has authority to take, direct
others to take, recommend, or approve any per-
sonnel action, shall not, with respect to such au-
thority—
(8) take or fail to take, or threaten to take
or fail to take, a personnel action with re-
spect to any employee or applicant for em-
ployment because of—
(A) any disclosure of information
by an employee or applicant which
the employee or applicant reason-
ably believes evidences—
(i) any violation (other
than a violation of this sec-
tion) of any law, rule, or
regulation, or
(ii) gross mismanagement,
a gross waste of funds, an
abuse of authority, or a
substantial and specific
danger to public health or
safety;
5 U.S.C. § 2302(b)(8)(A).
The agency must first prove, by a preponderance of
the evidence, its case for the employee’s removal.
Whitmore, 680 F.3d at 1367 (citing 5 C.F.R. § 1201.56).
The burden then shifts to the employee to prove by a
preponderance of the evidence that he or she made a
protected disclosure, as described in 5 U.S.C.
§ 2302(b)(8)(A), that after the disclosure he or she was
12 AGORANOS v. DOJ
subject to an adverse personnel action, and that the
protected disclosure was a “contributing factor” to the
adverse personnel action. Id.; see also 5 U.S.C.
§ 1221(e)(1). If the employee meets his or her burden
regarding the protected disclosure, the agency can then
attempt to rebut the employee’s claim by presenting clear
and convincing evidence “that it would have taken the
same personnel action even in the absence of [the protect-
ed] disclosure.” 5 U.S.C. § 1221(e)(2).
In assessing whether the agency has shown by clear
and convincing evidence “that it would have taken the
same personnel action even in the absence of [the protect-
ed] disclosure,” we have highlighted three non-exclusive
factors as particularly relevant: (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 whistle-
blowers but who are otherwise similarly situated.” Carr,
185 F.3d at 1323. In Whitmore, we elaborated on the so-
called Carr factors, stating that “[e]vidence only clearly
and convincingly supports a conclusion when it does so in
the aggregate considering all the pertinent evidence in
the record, and despite the evidence that fairly detracts
from that conclusion.” 680 F.3d at 1368. Thus, the Board
must “provide an in depth review and full discussion of
the facts to explain its reasoning,” including consideration
of countervailing evidence presented by the employee. Id.
at 1368, 1371.
When assessing a WPA challenge to a removal deci-
sion, the Board must also consider any due process or
procedural challenges an employee asserts as affirmative
defenses. In Stone v. Federal Deposit Insurance Co., 179
F.3d 1368, 1376 (Fed. Cir. 1999), we held that “[t]he
introduction of new and material information by means of
ex parte communications to the deciding official under-
AGORANOS v. DOJ
13
mines the public employee’s constitutional due process
guarantee of notice . . . and the opportunity to respond.”
There is, however, no due process violation unless the
deciding official “considers new and material information”
due to the ex parte communication. Id. at 1377. Thus, the
key inquiry is “whether the ex parte communication is so
substantial and so likely to cause prejudice that no em-
ployee can fairly be required to be subjected to a depriva-
tion of property under such circumstances.” Id.; see also
Ward v. U.S. Postal Serv., 634 F.3d 1274, 1279–80 (Fed.
Cir. 2011) (applying Stone to ex parte communications
related to either a removal charge or a penalty determina-
tion). Factors relevant to determining if “new and useful
information” is introduced through ex parte communica-
tions include: (1) “whether the ex parte communication
introduces ‘cumulative’ information or new information;
(2) whether the employee knew of the communication and
had a chance to respond; and (3) whether the ex parte
communication resulted in undue pressure upon the
deciding official to rule in a particular manner.” Young v.
Dep’t of Hous. & Urban Dev., 706 F.3d 1372, 1376 (Fed.
Cir. 2013) (citing Stone, 179 F.3d at 1377).
We have recognized that “a deciding official’s having
background knowledge of an employee’s prior work histo-
ry or performance record” “only raises due process or
procedural concerns where that knowledge is the basis for
the deciding official’s determinations on . . . the merits of
the underlying charge . . . .” Norris v. Sec. & Exch.
Comm’n, 675 F.3d 1349, 1354 (Fed. Cir. 2012).
III.
A.
Mirroring his arguments to the Board, Agoranos
claims that Special Agent Reed’s ex parte communications
violated his procedural due process rights and constitute
harmful error under 5 U.S.C. § 7701(c)(2). Agoranos
argues that Special Agent Reed admitted that he had ex
14 AGORANOS v. DOJ
parte communications with the DEA’s counsel and re-
viewed materials not in the record or the notice of pro-
posed removal, thus denying Agoranos the
constitutionally-required notice necessary to properly
respond to the claims against him. He argues, further,
that the information Special Agent Reed received through
these ex parte communications is not in the record, and
should be considered “new and material evidence” because
the DEA, and not Agoranos, prevented that information
from being disclosed. Agoranos also states that, had he
known that Special Agent Reed had in-depth prior in-
volvement in investigations of Agoranos, he would have
requested that Special Agent Reed be recused as the
deciding official. And finally, with regards to both the
affirmative defenses to his removal and the IRA request
for corrective action, Agoranos argues that the AJ “ig-
nored the facts, changed the facts, and ignored the law.”
In particular, Agoranos claims that his writing style
remained the same from when he was hired in 2001 until
his removal in 2010, but his work product only became
inadequate after he made the protective disclosures.
In response, the government argues that substantial
evidence in the record supports the DEA’s decision to
remove Agoranos and the AJ’s finding that the DEA
would have removed Agoranos regardless of the disclo-
sure. According to the government, Agoranos failed two
critical elements of his job duties as an Intelligence Re-
search Specialist, despite the DEA’s efforts to help him
improve, thus justifying his removal. This evidence, it
contends, sufficiently allows the agency to meet its burden
to show that it would have removed Agoranos due to his
subpar work product, regardless of his Super Bowl disclo-
sure. The government also argues that the AJ appropri-
ately applied the Carr factors—overwhelming evidence
demonstrates a history of concern about Agoranos’s work;
the disclosure was considered to be relatively minor
among supervisors, mitigating any motive to retaliate;
AGORANOS v. DOJ
15
and the agency treated a similarly-situated, non-
whistleblower employee the same as Agoranos. The
government also contends that the AJ and the Board
applied the correct law in determining that Special Agent
Reed’s ex parte communications neither reveal “new and
material information” nor placed “undue pressure” on
Special Agent Reed to reach a specific conclusion. And,
finally, the government argues that the AJ did not com-
mit harmful procedural error under 5 C.F.R. § 1201.56 as
Agoranos failed to present any evidence demonstrating
that the ex parte communications influenced Special
Agent Reed’s decision-making.
B.
On appeal, Agoranos has not challenged the AJ’s con-
clusions regarding the alleged 2004 disclosure, the alleged
2005 disclosure, or the DEA’s showings that its perfor-
mance standards were valid, and that it gave Agoranos a
reasonable opportunity to improve. We, thus, only review
Agoranos’s affirmative defenses to his removal, and the
Board’s analysis of the Super Bowl disclosure under the
burden-shifting framework of the WPA.
We agree with the government’s arguments and do
not find that the AJ’s or the Board’s decisions were “arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law” or “unsupported by substantial
evidence.” First, 1 with regards to the DEA’s denial of
Agoranos’s thirty-one requests for transfer to open Intelli-
1 The government does not challenge the Board’s
determination that Agoranos met his burden to show that
his disclosure was a contributing factor to the perfor-
mance-related actions. For his part, Agoranos does not
challenge the Board’s determination that Agoranos failed
to establish that the recommendation that Agoranos
receive a psychological evaluation caused remedial harm.
16 AGORANOS v. DOJ
gence Research Specialist positions, the Board did not err
in its analysis. Even though the deciding official for the
transfer decisions had no direct knowledge of Agoranos’s
disclosures, the Board appropriately required the AJ to
“look beyond the knowledge-timing test” to determine if
any statements made by O’Dea to the deciding official
could have tainted the decision-making process for the
transfer requests. The AJ determined that such transfers
were usually granted only to employees with superior
performance ratings. Given Agoranos’s documented
history of average or substandard performance ratings,
the AJ concluded that it would have been unlikely for
Agoranos to receive those transfers regardless of his
disclosures. Considering the depth of the AJ’s analysis of
the facts and appropriate application of the law, we find
his decision to be supported by substantial evidence.
For the five performance-related personnel actions,
we agree with the Board that substantial evidence sup-
ports the AJ’s determination that the DEA would have
taken these same personnel actions regardless of the
Super Bowl disclosure. The AJ, on remand, performed an
extensive analysis of Agoranos’s work history, applying
the Carr factors and considering all facts, including the
countervailing evidence presented by Agoranos, as re-
quired by Whitmore. The AJ described the extensive
documentary and testimonial evidence of Agoranos’s
subpar work performance and interpersonal communica-
tion skills, leading the AJ to conclude there was “over-
whelming evidence” supporting the personnel actions.
The AJ then appropriately identified that the disclosure
was for a minor infraction that supervisors did not con-
sider substantial. Although Agoranos’s coworkers pur-
portedly harassed and ostracized Agoranos because of the
disclosure, and even though one person was reprimanded
for the Super Bowl pool, the DEA presented unrebutted
testimony that the supervisors did not consider the disclo-
sure as something sufficiently serious to give rise to a
AGORANOS v. DOJ
17
motive to retaliate. And, finally, the AJ correctly consid-
ered agency actions against similarly-situated employees.
Agoranos argued that a similarly-situated employee was
merely transferred, and not terminated, due to perfor-
mance declines. The AJ, however, correctly found that
that employee was not similarly situated—the employee
had a long history of satisfactory performance with only a
recent decline, and the transfer was made for the conven-
ience of the employee’s commute. The AJ did, however,
point to a different employee with a similar history of
unsatisfactory performance over an extended time who
would have been removed by the agency if she had not
resigned first. As the Board concluded, Agoranos has not
shown any error in the AJ’s analysis. Mere disagree-
ments with the AJ’s factfinding are insufficient. Agoranos
urges us to reweigh the evidence presented to the Board
and reach a different conclusion, but “re-weigh[ing] con-
flicting evidence . . . is not our function.” Bieber v. Dep’t of
Army, 287 F.3d 1358, 1364 (Fed. Cir. 2002).
Finally, we find that the AJ and the Board correctly
rejected Agoranos’s affirmative defenses based on Special
Agent Reed’s ex parte communications. Special Agent
Reed’s prior participation in investigations of Agoranos
and his review of Agoranos’s personnel file are troubling.
But as we have previously stated, the mere knowledge of
an employee’s “work history or performance record” does
not constitute harmful procedural error or a due process
violation unless that knowledge influences the deciding
official’s determination. See Norris, 675 F.3d at 1354.
Special Agent Reed testified that he “had no recollection”
of any contact with Agoranos or his role in investigations
of Agoranos. Special Agent Reed also stated that he
reviewed Agoranos’s personnel file “just to get a sem-
blance of where Agoranos has been, what Agoranos’s
previous background [was].” He further testified that he
spoke with an attorney at the Chief Counsel’s office for
only five minutes specifically to obtain “clarification”
18 AGORANOS v. DOJ
about an issue in the case. Special Agent Reed explained
that he made the removal determination based entirely
on the performance issues identified in the notice of
proposed review. The AJ found Special Agent Reed’s
testimony to be credible, and the AJ’s credibility determi-
nations are “virtually unreviewable.” Hambsch v. Dep’t of
Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986). Agoranos,
who has the burden to prove his affirmative defenses,
Frey v. Department of Labor, 359 F.3d 1355, 1361 (Fed.
Cir. 2004), has thus failed to demonstrate that Special
Agent Reed considered “new and material information”
due to his ex parte communications “so substantial and so
likely to cause prejudice that no employee can fairly be
required to be subjected to [such] a deprivation.” Stone,
179 F.3d at 1377. And, similarly, we conclude that Ago-
ranos has failed to prove harmful procedural error as he
has not shown that Special Agent Reed’s ex parte commu-
nications influenced his decision-making in any manner
or led Special Agent Reed to reach a different conclusion
than he would have reached in the absence of the ex parte
communications. See 5 C.F.R. § 1201.56(c)(3).
IV.
Substantial evidence supports the AJ’s and Board’s
determinations that the DEA proved, by clear and con-
vincing evidence, that it would have taken the specified
personnel actions against Agoranos even if Agoranos had
not made the protected disclosure about the Super Bowl
betting pool. Substantial evidence also supports the AJ’s
and Board’s conclusions that Agoranos failed to prove
either a due process violation or harmful procedural error.
We therefore affirm the Board’s decisions to uphold the
personnel actions taken against Agoranos and deny his
request for corrective action under the WPA.
AFFIRMED