Smith v. Gsa , 930 F.3d 1359 ( 2019 )

United States Court of Appeals
for the Federal Circuit
______________________
ROBERT WESLEY SMITH,
Petitioner
v.
GENERAL SERVICES ADMINISTRATION,
Respondent
______________________
2018-1604
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0752-17-0470-I-1.
______________________
Decided: July 19, 2019
______________________
JOHN THOMAS HARRINGTON, The Employment Law
Group, PC, Washington, DC, argued for petitioner. Also
represented by ROBERT SCOTT OSWALD.
JESSICA R. TOPLIN, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent. Also represented by
LISA LEFANTE DONAHUE, ROBERT EDWARD KIRSCHMAN, JR.,
JOSEPH H. HUNT.
______________________
Before WALLACH, TARANTO, and STOLL, Circuit Judges.
2 SMITH v. GSA
STOLL, Circuit Judge.
Mr. Robert Smith worked at the General Services Ad-
ministration 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 re-
taliated against him for his repeated disclosure of gross
mismanagement and waste.
The 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 evi-
dence 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, re-
moval was justified. In doing so, the Board conflated two
distinct inquiries: whether the agency’s penalty was rea-
sonable 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, af-
firm 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 standards.
BACKGROUND
Mr. Smith began working at GSA in 1989. Over the
course of his career, he worked in various realty and finan-
cial management positions, eventually becoming a Senior
Financial Advisor. For much of his career, Mr. Smith re-
ceived positive performance evaluations and faced no dis-
cipline. 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 Na-
tional Achievement Award for Asset Management.
SMITH v. GSA 3
Over 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 leader-
ship 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 de-
tailing management failures in March 2014), 978–1039 (ar-
guing 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 Ineffec-
tive Management” in November 2014).
As Mr. Smith continued to send these emails, his im-
mediate supervisors began restricting his ability to corre-
spond directly with upper management. In late 2014, his
second-line supervisor informed him that sending such
“message[s] to the Regional Commissioner was inappropri-
ate.” 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 re-
garding 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 in-
structions may result in disciplinary action.
J.A. 961 (first emphasis added); see also J.A. 1948 (reiter-
ating “[a]ny communication that you wish to transmit (ver-
bally or electronically) to managers outside of [standard
management channels] must be approved by me before do-
ing so”).
In 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 elim-
inate any communication restriction. Though his new su-
pervisor reiterated that “your new Position Description
does not supersede the communication instructions you
4 SMITH v. GSA
received via e-mail on December 11 and 12, 2014 from
[your previous supervisor],” J.A. 1932–33, Mr. Smith nev-
ertheless sent another email to upper management in De-
cember 2015. The 87-page document, titled “Performance
Diagnostic: A Guide to Move the Region to Performance
Sustainability,” identified areas of mismanagement and of-
fered strategies to recapture lost rents and reduce ineffi-
ciencies. J.A. 1848–1930. Additional emails followed in
January and February 2016.
In February 2016, Mr. Roman Augustus became
Mr. Smith’s immediate supervisor. In March, he again in-
structed Mr. Smith to “please communicate and coordinate
with me via email prior to generating, compiling and for-
warding 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 com-
munication instructions. The agency imposed that suspen-
sion in June 2016.
Over the spring and summer of 2016, Mr. Smith’s and
Mr. Augustus’s relationship became increasingly conten-
tious. 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. Dur-
ing meetings, Mr. Smith challenged Mr. Augustus’s au-
thority, 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 “dic-
tates 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].”
SMITH v. GSA 5
J.A. 4. Mr. Augustus felt that on each of these five occa-
sions, Mr. Smith had been disrespectful.
Mr. Augustus responded by informing Mr. Smith that
“such conduct will not be tolerated and may result in disci-
plinary 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 technol-
ogy (“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.
On September 14, 2016, Mr. Augustus proposed remov-
ing 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. 1 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.
II
Mr. 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 Ad-
ministrative 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
1 A fourth charge, absence without leave, was not
sustained by the Board and is not at issue on appeal.
6 SMITH v. GSA
decision, concluding that the government had shown by
clear and convincing evidence that it would have removed
Mr. Smith regardless of his whistleblowing.
The AJ 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 fail-
ure to remove his PIV card from his laptop. The AJ found
that Mr. Smith had notice of the IT policy and did not dis-
pute 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 dis-
abilities.
The AJ also sustained the charge of failure to comply
with supervisory instructions. GSA identified three inci-
dents supporting the charge: that Mr. Smith had sent a
short email on a weekend despite direction by Mr. Augus-
tus 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 in-
stances, Mr. Smith admitted both that he had received in-
structions from Mr. Augustus and that he had not followed
them.
Similarly, 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 or undermining the authority of his su-
pervisor, Roman Augustus.” J.A. 4.
The AJ found an “obvious nexus” between the sus-
tained charges and the efficiency of the service. J.A. 13.
And though he had not sustained a fourth charge, the AJ
nevertheless found that given the seriousness of the sus-
tained charges and Mr. Smith’s prior suspension on similar
SMITH v. GSA 7
grounds, the agency’s decision to remove Mr. Smith was
not unreasonable.
The AJ acknowledged that even though he had found
the penalty reasonable, the agency’s decision could not be
upheld if Mr. Smith proved his affirmative defense of whis-
tleblower reprisal. The AJ found that Mr. Smith had met
his burden of showing both that he was a whistleblower
and that his statutorily protected disclosures contributed
to GSA’s decision to remove him. But in two sentences, the
AJ ruled that:
[B]ased on the strength of the agency’s evi-
dence . . . it proved by clear and convincing evi-
dence that it would have taken the same personnel
action (removal) absent any disclosure. Indeed, I
find that the defiantly disrespectful misconduct de-
scribed . . . alone would have justified his removal,
especially in light of his previous suspension for
similar misconduct.
J.A. 21–22.
The AJ’s decision became the final decision of the
Board, see 5 C.F.R. § 1201.113, and Mr. Smith timely
sought review in this court, see 5 U.S.C. § 7703. We have
jurisdiction. 28 U.S.C. § 1295(a)(9).
DISCUSSION
By statute, we must “hold unlawful and set aside” ac-
tions, findings, or conclusions of the Board if they are
(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without pro-
cedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.
5 U.S.C. § 7703(c); see Cobert v. Miller, 800 F.3d 1340,
1347–48 (Fed. Cir. 2015). We review the Board’s legal con-
clusions de novo and its fact findings for substantial evi-
dence. See Campbell v. Merit Sys. Prot. Bd., 27 F.3d 1560,
1564 (Fed. Cir. 1994).
8 SMITH v. GSA
I
We first address the Board’s treatment of Mr. Smith’s
whistleblower defense. Because the Board applied an in-
correct legal standard and ignored relevant evidence, we
vacate its decision.
A
Statute prohibits an agency from penalizing its em-
ployees for whistleblowing. See 5 U.S.C. § 2302(b)(8). An
employee who believes he has been subjected to illegal re-
taliation must prove by a preponderance of the evidence
that he made a protected disclosure that contributed to the
agency’s action against him. See Whitmore v. Dep’t of La-
bor, 680 F.3d 1353, 1367 (Fed. Cir. 2012). “If the employee
establishes this prima facie case of reprisal for whistle-
blowing, the burden of persuasion shifts to the agency to
show by clear and convincing evidence that it would have
taken ‘the same personnel action in the absence of such dis-
closure.’” Id. at 1364 (quoting 5 U.S.C. § 1221(e)). If the
agency does not show by clear and convincing evidence that
it would have taken the same action absent the whistle-
blowing, the agency’s penalty cannot be affirmed. See Siler
v. Envtl. Prot. Agency, 908 F.3d 1291, 1298 (Fed. Cir. 2018).
In determining whether the agency has carried its burden,
we have instructed the Board to consider three nonexclu-
sive factors:
[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 deci-
sion; and [3] any evidence that the agency takes
similar actions against employees who are not
whistleblowers but who are otherwise similarly sit-
uated.
Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1323 (Fed. Cir.
1999).
SMITH v. GSA 9
B
Here, the Board’s discussion of the Carr factors is all of
two sentences:
I further find based on the strength of the agency’s
evidence that it proved by clear and convincing ev-
idence that it would have taken the same personnel
action (removal) absent any disclosure. Indeed, I
find that the defiantly disrespectful misconduct de-
scribed . . . alone would have justified his removal,
especially in light of his previous suspension for
similar misconduct.
J.A. 21–22. While the first sentence states the correct legal
standard, the Board did not provide any analysis of the
Carr factors. Moreover, the second sentence applies an in-
correct standard, averring that Mr. Smith’s misconduct
alone justified the agency’s action. Contrary to the Board’s
statement, the merits of a whistleblower defense do not
turn on the strength of the agency’s evidence alone or on
whether the misconduct justified removal. Those points
speak to whether the agency met its burden to prove that
misconduct occurred, discipline is warranted, and the cho-
sen penalty is reasonable, factors the agency must show by
preponderant evidence in every appeal from a disciplinary
action. See Pope v. U.S. Postal Serv., 114 F.3d 1144, 1147
(Fed. Cir. 1997); see also Hale v. Dep’t of Transp., 772 F.2d
882, 885 (Fed. Cir. 1985).
Where whistleblowing is at issue, however, the proper
inquiry is not whether the agency action is justified; it is
whether the agency would have acted in the same way ab-
sent the whistleblowing. See Miller v. Dep’t of Justice,
842 F.3d 1252, 1257 (Fed. Cir. 2016) (“The issue [in a whis-
tleblower reprisal case] is whether substantial evidence
supports the Board’s determination that the Government
showed independent causation by clear and convincing ev-
idence.”). “[T]he merits cannot be the determinative factor
that there was no reprisal. A meritorious adverse action
10 SMITH v. GSA
must be set aside where there is reprisal.” Siler, 908 F.3d
at 1298–99 (quoting Sullivan v. Dep’t of the Navy, 720 F.2d
1266, 1278 (Fed. Cir. 1983) (Nies, J., concurring)). Thus,
the Board’s independent decision to sustain the disrespect-
ful conduct charge—however strong the underlying evi-
dence—did not eliminate Mr. Smith’s reprisal defense.
And it does not excuse the Board from analyzing the entire
record and determining whether the agency clearly and
convincingly proved that it would have removed Mr. Smith
even absent his whistleblowing, not merely that it could
have justifiably done so. On remand, the Board must en-
sure that the agency is held to its “high burden of proof.”
See Whitmore, 680 F.3d at 1367 (quoting 135 Cong. Rec.
H747–48 (daily ed. Mar. 21, 1989) (explanatory statement
on Senate Amendment to S. 20)).
C
The Board further erred by failing to consider Carr fac-
tors 2 and 3 when analyzing whether the agency clearly
and convincingly proved that it would have removed
Mr. Smith notwithstanding his whistleblowing. Though
we have explained that Carr imposes no affirmative bur-
den on the agency to produce evidence for each of the three
factors, see Whitmore, 680 F.3d at 1374, the Board cannot
ignore record evidence relevant to the existence and
strength of any motive to retaliate or the treatment of sim-
ilar employees. Rather, the Board must “provide an in
depth review and full discussion of the facts to explain its
reasoning.” Id. at 1368. This is especially true in a case
such as this one, where the record contains ample evidence
relevant to these factors.
The Board should have considered the evidence rele-
vant to the strength of the agency’s motive to retaliate.
Mr. Smith made a number of disclosures, most of which the
Board failed to address. 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
SMITH v. GSA 11
failures in March 2014), 978–1039 (arguing agency should
“[r]eview the consistency in which all regions have ap-
plied . . . national policies and procedures” in July 2014),
1943–44 (describing “the road to ineffective management”
in November 2014), 1160–61 (requesting workload review
in January 2016), 1988–95 (asserting need for workload re-
form in February 2016). The agency introduced evidence
that it had legitimate concerns regarding the accuracy and
tone of these emails, which may cut against a finding of
motive. But it is also true that management repeatedly
threatened Mr. Smith with discipline if he continued to dis-
close perceived mismanagement outside of his immediate
reporting chain. 2 See J.A. 961 (“[A]ny
2 Indeed, though Mr. Smith did not seek recovery
based on his supervisor’s communication restriction in this
case, its breadth may independently violate the Whistle-
blower Protection Act, which may in turn suggest a strong
motivation on the part of the agency to silence Mr. Smith.
See 5 U.S.C. § 2302(b)(8). The Act prohibits a “personnel
action” against an employee because of any information
disclosure by such employee which the employee reasona-
bly believes evidences (i) a violation of any law, rule, or reg-
ulation, or (ii) gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific
danger to public health or safety. Id. The statute includes
and protects “any” disclosure that an employee “reasonably
believes” evidences misconduct or mismanagement. Id.
§ 2302(b)(8)(A); Greenspan v. Dep’t of Veterans Affairs,
464 F.3d 1297, 1305 (Fed. Cir. 2006). And “the implemen-
tation or enforcement of any nondisclosure policy” is a pro-
hibited “personnel action.” 5 U.S.C. § 2302(a)(2)(A)(xi).
The agency’s order that any communication that Mr. Smith
wished to transmit to managers outside of the group must
be approved by a supervisor was a nondisclosure policy that
12 SMITH v. GSA
communication . . . 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 dis-
ciplinary action.”). And though Mr. Smith’s work evalua-
tions had been generally positive prior to his
whistleblowing, his managers in fact suspended him and
then placed him on a performance plan because of his com-
munications and disclosures. Further, the record suggests
that agency managers were unhappy with Mr. Smith and
were embarrassed by his whistleblowing. In response to
one of Mr. Smith’s disclosures, the deciding official replied
to her colleagues:
Oh my gosh! So, what is the status of the action
with HR? We need to take action immediately!
This is absolutely unacceptable . . . . I’m embar-
rassed that he is representing [the group].
J.A. 1987 (ellipsis in original). In another email, Mr. Au-
gustus “urge[d] [Mr. Smith] . . . to avoid deviating from or
distorting verifiable facts in an effort to advance your sub-
jective motives.” J.A. 1843. The Board erred by failing to
address this evidence.
Similarly, the Board should have considered the
agency’s failure to introduce evidence relevant to Carr fac-
tor 3—treatment of non-whistleblowers who engaged in
similar misconduct. Though Mr. Smith was punished for
working over a weekend, the undisputed record indicates
at least one of Mr. Smith’s colleagues completed weekend
work on the same weekend as Mr. Smith. But the record
does not reflect whether that colleague was penalized in
any way. To the extent the agency failed to introduce evi-
dence on how this employee or other similarly situated em-
ployees were treated, Carr factor 3 cannot support the
restricted Mr. Smith’s ability to make such communica-
tions.
SMITH v. GSA 13
agency. See, e.g., Siler, 908 F.3d at 1299 (holding that
where there is “an absence of relevant comparator evi-
dence, the third Carr factor cannot favor the government”);
Miller, 842 F.3d at 1262 (“[T]he court may not simply guess
what might happen absent whistleblowing. The burden lies
with the Government.”); Whitmore, 680 F.3d at 1374
(“Failure to [introduce comparator evidence] may be at the
agency’s peril.”).
D
Accordingly, we vacate the Board’s whistleblower anal-
ysis and remand for it to apply the appropriate legal stand-
ard and consider the relevant evidence.
II
We next review the Board’s decision to sustain the
charges against Mr. Smith, which we review for substan-
tial evidence. See Long v. Soc. Sec. Admin., 635 F.3d 526,
530 (Fed. Cir. 2011). To determine whether substantial ev-
idence supports the Board, we must determine whether
“considering the record as a whole, the agency’s evidence is
sufficient to be found by a reasonable factfinder to meet the
[agency’s] evidentiary burden.” See Leatherbury v. Dep’t of
the Army, 524 F.3d 1293, 1300 (Fed. Cir. 2008) (quoting
Bradley v. Veterans Admin., 900 F.2d 233, 234 (Fed. Cir.
1990)). It is not enough that record evidence exists that, if
“viewed in isolation, substantiate[s] the Board’s findings.”
Universal Camera Corp. v. NLRB, 340 U.S. 474, 478, 488
(1951). Instead, we set aside the Board’s decision if we
“cannot conscientiously find that the evidence supporting
that decision is substantial, when viewed in the light that
the record in its entirety furnishes, including the body of
evidence opposed to the Board’s view.” Id. at 488. “Any
determination by [the Board] that is based on findings
made in the abstract and independent of the evidence
which fairly detracts from [its] conclusions is unreasonable
and, as such, is not supported by substantial evidence.”
14 SMITH v. GSA
Whitmore, 680 F.3d at 1376. We address each of the three
sustained charges in turn.
A
First, the Board’s decision to sustain the charge of fail-
ure to comply with IT policy lacks substantial evidence sup-
port. The parties do not dispute that, to prove this charge,
the agency was required to show that the employee failed
to follow a proper, applicable policy. The agency asserted
that Mr. Smith violated IT policies applicable to him when
he failed to remove his PIV card from his laptop. In affirm-
ing the agency’s charge, the Board cited evidence favorable
to the agency’s position. It noted that the policy requires
users to remove PIV cards from their laptops, that
Mr. Smith was trained in the IT policy, and that Mr. Smith
did not remove his PIV card.
We conclude, however, that the record lacks substan-
tial evidence to show that this policy was applicable to
Mr. Smith. The relevant policy states that “[a]ny person
with a disability that does not allow the individual to uti-
lize a PIV card and laptop” is within the “groups of users
[that] are exempt” from the requirement to use a PIV cre-
dential. J.A. 1827 (emphasis added). The AJ held that this
exemption applies only to employees unable to use a PIV
card and a laptop. Based on his interpretation, the AJ con-
cluded that because Mr. Smith was not facially exempt
from the policy and further failed to request a special ex-
emption, he failed to show that his supervisors condoned
him leaving his PIV card in his laptop.
We disagree with the AJ’s unreasonable interpretation
of the policy. Moreover, the fact that Mr. Smith failed to
request a special exemption from the IT policy does not re-
solve the issue of whether his supervisors condoned his ac-
tions, creating a de facto exemption. It is undisputed that
Mr. Smith is a quadriplegic. It is undisputed that
Mr. Smith’s supervisors were aware that he is a quadriple-
gic. Oral Arg. at 19:57–20:40, http://oralarguments.cafc.
SMITH v. GSA 15
uscourts.gov/default.aspx?fl=2018-1604.mp3 (conceding
supervisors “knew that [Mr. Smith] had challenges with
dexterity” and “knew that he would have difficulty” com-
plying with IT policy). It is undisputed that he cannot
physically remove a PIV card. Until the summer of 2016,
Mr. Smith had never been corrected by his supervisors for
failing to remove his PIV card and accordingly, he believed
himself to be exempt from the PIV IT policy because of his
disability. J.A. 365–68 (stating second supervisor was
aware of Mr. Smith’s inability to remove PIV card because
the supervisor had assisted Mr. Smith in moving offices),
436 (first supervisor agreeing she had never seen
Mr. Smith remove a PIV card); Oral Arg. at 20:49–22:45
(conceding agency introduced no evidence contradicting
Mr. Smith’s testimony on these points). The Board failed
to address this evidence. On this record, substantial evi-
dence does not support the Board’s decision to sustain this
charge, and we reverse the Board’s decision sustaining this
charge.
B
Second, the Board’s decision to sustain the weekend
work specification, offered by the agency in support of its
failure to follow supervisory instructions charge, similarly
lacks substantial evidence support. In sustaining the
agency’s specification, the Board stated that Mr. Augustus
had instructed Mr. Smith not to work over the weekend
and that two days later, Mr. Smith nevertheless sent an
email over the weekend. While each point is facially cor-
rect, the Board’s analysis is defective. Proof of a failure to
follow instructions charge requires the agency to show that
an employee failed to follow a proper instruction, see Ham-
ilton v. U.S. Postal Serv., 71 M.S.P.R. 547, 556 (1996), but
the Board failed to discuss the propriety of Mr. Augustus’s
instruction, despite facts that draw it into question. The
agency introduced no formal policy forbidding weekend
work, no evidence that other employees had been in-
structed to not work on the weekend, and no supporting
16 SMITH v. GSA
rationale for imposing this ban on Mr. Smith alone. Oral
Arg. at 36:41–37:52. Moreover, it was undisputed that
Mr. Smith had regularly worked over the weekend to
timely complete work due to his health issues; that the
email at issue was written during business hours and re-
quired only minutes to complete over the weekend; and
that he sent the email over the weekend only because an-
other employee first sent him information over the week-
end. 3 In light of the whole record, the Board’s
determination is unsupported by substantial evidence. Ac-
cordingly, we reverse the Board’s decision as to this speci-
fication.
We affirm the Board’s decision to sustain the remain-
ing specifications of the failure to follow instructions
charge. But because we have reversed the Board’s findings
on one of the specifications underlying that charge, on re-
mand, the Board must determine whether the charge as a
whole may be sustained.
C
We also affirm the Board’s decision sustaining the dis-
respectful conduct charge. Mr. Smith urges us to hold that
the Board also erred in its consideration of the specifica-
tions related to that charge, but for each, Mr. Smith merely
argues that circumstances excused his disrespectful con-
duct. See Pet’r’s Br. 30–37. Though, as discussed below,
the Board must consider any mitigating circumstances in
its penalty analysis, substantial evidence supports the
Board’s decision to sustain the specifications themselves.
See Webster v. Dep’t of the Army, 911 F.2d 679, 684
(Fed. Cir. 1990) (affirming Board decision to sustain
charges where findings were “undisputed by [petitioner],
who admits to the conduct alleged but offers excuses”).
3 The record does not indicate whether Mr. Smith’s
coworker was similarly disciplined for his weekend work.
SMITH v. GSA 17
III
Finally, we consider the Board’s decision that the
agency acted reasonably in removing Mr. Smith. In deter-
mining the reasonableness of the penalty imposed by an
agency, the Board considers the factors outlined in Douglas
v. Veterans Administration, 5 M.S.P.B. 313 (1981). The
penalty chosen by the agency must represent a responsible
balancing of the relevant Douglas factors. Mr. Smith ar-
gues that the agency’s analysis of the eleventh Douglas fac-
tor, “mitigating circumstances surrounding the offense,”
which include “unusual job tensions, personality prob-
lems, . . . or bad faith, malice or provocation on the part of
others involved in the matter,” id. at 332, was deficient and
that the Board erred in affirming the agency’s penalty.
We do not reach this specific argument. The Board did
not sustain all of the charges and we have concluded that
others are not supported by substantial evidence. We have
also vacated the Board’s analysis of Mr. Smith’s whistle-
blower defense. If, on remand, the Board concludes that
the agency would not have removed Mr. Smith absent his
whistleblowing, “the agency’s removal decision may not
stand.” Siler, 908 F.3d at 1298, 1300 (“The Board has no
discretion to affirm a penalty tainted by illegal reprisal,
even if the agency’s penalty might otherwise have been rea-
sonable.”); 5 U.S.C. § 7701(c)(2)(B). And if, on remand, the
Board concludes otherwise, the Board must consider
whether to mitigate the penalty in light of our reversal of
certain charges. See, e.g., Hathaway v. Dep’t of Justice,
384 F.3d 1342, 1353 (Fed. Cir. 2004).
Accordingly, we vacate the Board’s decision as to the
reasonableness of the penalty. See Wrocklage v. Dep’t of
Homeland Sec., 769 F.3d 1363, 1371 (Fed. Cir. 2014). On
remand, the Board must consider whether the penalty of
removal may be sustained or whether remand to the
agency is necessary to reassess the appropriate penalty. In
addition, the Board must perform a thorough analysis of
18 SMITH v. GSA
the mitigating circumstances identified by Mr. Smith—
particularly that the statements underlying the disrespect-
ful conduct charge were based on his belief that Mr. Augus-
tus was acting contrary to Mr. Smith’s position description.
See, e.g., Pet’r’s Br. 30–37. The Board should also consider
the propriety of the breadth of Mr. Smith’s supervisors’
communication bans in evaluating the reasonableness of
any penalty. See, e.g., J.A. 961 (“[A]ny communication that
you wish to transmit (verbally or electronically) to manag-
ers outside of the [group] must be approved by me . . . .”
(emphases added)), 513 (“[C]ommunicate and coordinate
with me via email prior to generating, compiling and for-
warding any reports, direction, data requests or analytical
narratives to the region.” (emphasis added)).
CONCLUSION
We have considered the parties’ remaining arguments
and find them unpersuasive. For the reasons above, we
vacate the Board’s decision and remand for reconsideration
of Mr. Smith’s reprisal defense and the agency’s chosen
penalty.
AFFIRMED-IN-PART, REVERSED-IN-PART,
VACATED AND REMANDED
COSTS
Costs to petitioner.