Twardowski v. MSPB , 634 F. App'x 302 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RADOMYSL TWARDOWSKI,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2014-3177
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-1221-13-0272-W-1.
______________________
Decided: December 10, 2015
______________________
RADOMYSL TWARDOWSKI, Fargo, ND, pro se.
STEPHEN FUNG, Office of the General Counsel, Merit
Systems Protection Board, Washington, DC, for respond-
ent. Also represented by BRYAN G. POLISUK.
______________________
Before MOORE, CLEVENGER, and REYNA, Circuit
Judges.
2 TWARDOWSKI v. MSPB
PER CURIAM.
Radomysl Twardowski appeals the decision of the
Merit Systems Protection Board (“Board”) to dismiss his
petition for lack of jurisdiction. For the reasons stated
below, we affirm.
BACKGROUND
On March 12, 2012, Dr. Twardowski was appointed
Chief Medical Officer at the Army’s Military Entry Pro-
cessing Command (“MEPCOM”) station in Fargo, North
Dakota. During Dr. Twardowski’s one-year probationary
period, several recruits submitted complaints about his
allegedly inadequate bedside manner. On October 25,
MEPCOM terminated Dr. Twardowski from his position,
citing the complaints and concluding that Dr. Twardowski
could not be trusted to “process applicants consistently,
professionally and in accordance with established DOD
and USMEPCOM standards.” R.A. 25. The termination
letter was signed by Captain T.A. Lewis. Id.
On November 7, 2012, Dr. Twardowski filed a com-
plaint with the Office of Special Counsel (“OSC”) challeng-
ing the termination. Dr. Twardowski alleged that his
termination was not because of complaints from recruits,
but because he resisted pressure from the station com-
mander to hasten medical evaluations and to lower
standards by ignoring disqualifying medical conditions.
On March 27, 2013, the OSC concluded that Dr.
Twardowski’s complaint did not evidence any prohibited
personnel practice, as defined by the Whistleblower
Protection Act (“WPA”) and codified at 5 U.S.C. § 2302(b).
The OSC explained that Dr. Twardowski did not appear
to be engaged in protected whistleblower activity, as
defined in § 2302(b)(8), because his disagreements with
the station officer concerned only policy decisions. The
OSC also explained that MEPCOM complied with its
requirements for terminating an employee during proba-
TWARDOWSKI v. MSPB 3
tion, when an agency may terminate the employee with-
out cause. OSC closed the investigation on April 9, 2015.
On April 30, 2013, Dr. Twardowski petitioned the
Board with the same allegations he had made to the OSC.
The Board issued an order requesting evidence establish-
ing Board jurisdiction over the matter. In response, Dr.
Twardowski alleged that he made a “protected disclosure”
around September 12, 2012, when he told Dr. William
Thompson (a CMO at a different station) that he was
being pressured “to look away from the due process of
medical evaluation” and to “paper over any potentially
disqualifying conditions.” R.A. 9. Dr. Twardowski argued
that this discussion was a contributing factor to his
termination “because it reinforced differences in the
approaches and attitudes which guided my work, which I
believed was faithfully guided by the charter of MEPS
CMO assigned to the contract, vs. reality of the culture of
looking away from due diligence.” R.A. 9.
The Board dismissed the case for lack of jurisdiction
because Dr. Twardowski’s “conclusory, vague, and unsup-
ported” complaints did not constitute non-frivolous allega-
tions of prohibited personnel practices. R.A. 9. The Board
found that the comments he made to Dr. Thompson were
not a protected disclosure, and a lack of evidence that a
protected disclosure contributed to Dr. Twardowski’s
termination. Dr. Twardowski appeals. We affirm.
DISCUSSION
Our review of a Board decision is circumscribed by
statute. We can set the decision aside only if it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c). We review decisions of the Board re-
garding its own jurisdiction without deference. Kahn v.
Dep't of Justice, 528 F.3d 1336, 1341 (Fed. Cir. 2008).
4 TWARDOWSKI v. MSPB
Under the WPA, an employee who believes he was re-
taliated against for making a protected disclosure may
seek corrective action from the OSC, and if such action is
denied, appeal to the Board. See 5 U.S.C. §§ 1214(a)(3),
1221(a). The Board has jurisdiction over such an appeal if
the appellant has exhausted his remedies before the OSC
and makes a non-frivolous allegation that (1) he engaged
in whistleblowing activity by making a “protected disclo-
sure,” and (2) the disclosure was a contributing factor in
the agency's decision to take or fail to take a personnel
action. Yunus v. Dep’t of Veterans Affairs, 242 F.3d 1367,
1371 (Fed. Cir. 2001). Section 2302(b)(8) defines a “pro-
tected disclosure” as any disclosure by an employee that
the employee reasonably believes evidences: (1) a viola-
tion of any law, rule, or regulation; (2) gross mismanage-
ment; (3) a gross waste of funds; (4) an abuse of authority;
or (5) a substantial and specific danger to public health or
safety.
“The standard for determining whether non-frivolous
disclosures exist is analogous to that for summary judg-
ment.” Kahn v. Dep't of Justice, 528 F.3d 1336, 1341
(Fed. Cir. 2008) (internal quotation marks omitted). The
petitioner must show the existence of a material fact
issue, which cannot be supported by only unsubstantiated
speculation. Id. The Board may only review those disclo-
sures and personnel actions that an appellant specifically
raised before the OSC, and it may not consider any sub-
sequent re-characterization of those charges on appeal to
the Board. Ellison v. Merit Sys. Prot. Bd., 7 F.3d 1031,
1037 (Fed. Cir. 1993).
On the record before us, the Board did not err in con-
cluding that Dr. Twardowski failed to establish a non-
frivolous claim of prohibited personnel practices. Specifi-
cally, Dr. Twardowski has explained no connection be-
tween his conversation with Dr. Thompson, an apparent
TWARDOWSKI v. MSPB 5
mentor at a different station hundreds of miles away, and
his termination by the deciding official, Captain Lewis. 1
The Board noted that Dr. Twardowski has not put
forth any reason to believe that Lewis or anybody else had
any knowledge of the conversation between Drs.
Twardowski and Thompson. “[T]he action taken by the
agency officials must be weighed in light of what they
knew at the time they acted.” Yunus, 242 F.3d at 1372.
For this reason, the Board typically requires a showing
that the deciding official had actual or constructive
knowledge of the protected disclosure. See Pope v. Dep’t of
Navy, 44 M.S.P.R. 289, 295 (M.S.P.B. 1990). Dr.
Twardowski has alleged no such knowledge.
To be sure, an employee may not always have direct
evidence of the deciding official’s knowledge or of the
official’s intent to retaliate. But in such circumstances,
the employee must provide at least some circumstantial
evidence from which a reasonable person might conclude
that the employment action was retaliatory. For example,
the employee may cite weak agency reasoning or a disclo-
sure that implicates the deciding official. See Powers v.
Dep’t of Navy, 69 M.S.P.R. 150, 156 (M.S.P.B. 1995). Dr.
Twardowski has cited no such circumstantial evidence in
this case. There is also no allegation or evidence indicat-
ing that Dr. Twardowski’s conversation with Dr. Thomp-
son implicated Captain Lewis or would have otherwise
motivated the captain to retaliate against Dr.
Twardowski. In short, there is no evidence suggesting
retaliation. Instead, the record suggests that Dr.
Twardowski was removed because of what he described as
“differences in the approaches and attitudes” with super-
1 In a letter to the OSC, Dr. Twardowski indicated
that he “patterned [his] work after the example of sea-
soned, experienced CMO’s,” including “Dr. William
Thompson from Des Moines, IA.” R.A. 38.
6 TWARDOWSKI v. MSPB
visors, which “became too large to bridge.” R.A. 42. In
addition, the removal occurred during Dr. Twardowski’s
probationary period.
Given that Dr. Twardowski failed to make a nonfrivo-
lous allegation that his alleged disclosure was a contrib-
uting factor in the agency’s decision to separate him
during his probationary period, we see no error in the
Board’s determination that it lacked jurisdiction over this
petition.
CONCLUSION
For the foregoing reasons, the decision of the Board is
affirmed.
AFFIRMED