[00:00:00] Speaker 01:
Our next case is number 241136, McGinnis versus Interior.

[00:00:05] Speaker 01:
Okay, Ms.

[00:00:05] Speaker 01:
Lease.

[00:00:07] Speaker 03:
Good morning, Your Honors.

[00:00:08] Speaker 03:
It may please the Court.

[00:00:09] Speaker 03:
I represent the petitioner in this case, Stephen McInnis, in his appeal from the MSPB.

[00:00:14] Speaker 03:
We respectfully request that the Court reverse the Board's decision for three key reasons.

[00:00:20] Speaker 03:
The first is that Mr. McInnis made protective disclosures by way of his administrative grievance, and his supervisor, Ms.

[00:00:26] Speaker 03:
Potts, clearly knew of his protective disclosures.

[00:00:29] Speaker 03:
The second is

[00:00:31] Speaker 03:
His protective disclosures were a contributing factor to the personnel actions taken against him.

[00:00:36] Speaker 03:
And third, the Carr factor suggests that the respondent cannot meet their burden by clear convincing evidence that they would have taken the same personnel actions but for his protection.

[00:00:46] Speaker 01:
Well, that issue is not before us.

[00:00:48] Speaker 01:
It wasn't decided by the board whether they would have taken the same action.

[00:00:54] Speaker 03:
That is correct, but I hope to convince you that if we establish that my client did engage in protective disclosures and his supervisor was aware, he then would have met his case in chief and therefore we would request remand for the board to fully consider whether the respondent has met his burden.

[00:01:13] Speaker 03:
I think I understand your point, and I will explain to you why my client did make protected disclosures by way of his grievance, and his supervisor was aware of those disclosures.

[00:01:26] Speaker 03:
Mr. McInnis expressed in his grievance that he believed that adverse actions taken against him were of, quote, retaliation.

[00:01:34] Speaker 03:
We admit in our briefs that he did not say retaliation for whistleblowing, but we believe that the case law does not require that.

[00:01:42] Speaker 01:
What matters is the substance of his disclosures, and as you'll see in his grievance, he made several disclosures that... Kate has suggested a disclosure in the grievance except under unusual circumstances not presented here doesn't count as a disclosure for whistle-blower purposes.

[00:02:02] Speaker 03:
Well, his disclosures

[00:02:04] Speaker 03:
were seeking to remedy the violations in 2302B8.

[00:02:10] Speaker 03:
So that's why we believe that he would have jurisdiction, that his disclosures

[00:02:15] Speaker 03:
were evidencing a violation of a legal rule, a violation of FMLA, abuse of authority.

[00:02:22] Speaker 03:
And we believe those disclosures.

[00:02:24] Speaker 00:
It also can just be the basis for regular grievance that he said, you violated my FLMA rights and not that you're retaliating against me because I'm disclosing your violation of FMLA rights.

[00:02:39] Speaker 00:
And the board read it the first way, which is, sure, he grieved the fact

[00:02:45] Speaker 00:
Is this the one where he was suspended or the letter of reprimand?

[00:02:52] Speaker 03:
The letter of reprimand, yes.

[00:02:53] Speaker 00:
He got a letter of reprimand and he said this is because, you know, I'm grieving this because you violated my FLA rights and whatever else agreement says.

[00:03:03] Speaker 00:
But it doesn't say that he grieved it because he retaliated against me for exercising those rights.

[00:03:12] Speaker 00:
And that makes a distinction about whether it falls under part one or part two.

[00:03:16] Speaker 00:
And if it falls under, I'm going to get him wrong, is part two the one that's not part of the IRA?

[00:03:21] Speaker 00:
If it falls under part two, which is just a general grievance, then it isn't included here.

[00:03:27] Speaker 00:
And the board read it that way.

[00:03:28] Speaker 03:
That is correct.

[00:03:29] Speaker 03:
And that is in the board's footnote.

[00:03:32] Speaker 03:
However, he did use the word retaliation, and that I think is true.

[00:03:38] Speaker 00:
Sure, but there are retaliation provisions in lots of these laws, and they don't necessarily imply whistleblower retaliation.

[00:03:46] Speaker 00:
Title VII has retaliation provisions, and you can

[00:03:50] Speaker 00:
You know, if you retaliate against somebody for exercising their EEO rights, that's a violation of Title VII, but it's not necessarily a 2302B8 violation, right?

[00:04:02] Speaker 00:
That is correct.

[00:04:03] Speaker 00:
And so, just because he uses the word retaliation doesn't suggest that

[00:04:07] Speaker 00:
He was claiming that he was retaliated against for the disclosure, but rather that he was retaliated against for exercising those rights.

[00:04:16] Speaker 00:
And that's a B2.

[00:04:18] Speaker 00:
Sorry, whatever, it's a 2, not a 1.

[00:04:21] Speaker 00:
Let's just simplify it because I'm going to get that long chain of things.

[00:04:23] Speaker 00:
That's a 2, right?

[00:04:24] Speaker 00:
If it's just, you're retaliating against me for exercising my rights.

[00:04:28] Speaker 00:
not retaliating against me for disclosing your violation of those rights.

[00:04:32] Speaker 03:
I think if you look at the grievance in whole, and it's a five-page, single-spaced document that my client wrote prior to having an attorney, but you'll see the language.

[00:04:44] Speaker 03:
Yes, he uses the word retaliation, but he goes beyond just saying, I was retaliated.

[00:04:48] Speaker 00:
Want to point me to your best evidence in the appendix?

[00:04:54] Speaker ?:
Sure.

[00:04:54] Speaker 03:
106 is where he references the word retaliation that he says they were attempting to deny my FMLA to which I was legally entitled to which would appear to be a result of something personal or retaliation.

[00:05:07] Speaker 03:
Appendix 104, again, he references the FMLA leave.

[00:05:12] Speaker 03:
Appendix 105, he disclosed violations of the federal travel regulations.

[00:05:17] Speaker 03:
Appendix 104, he discloses abuse of authority.

[00:05:21] Speaker 03:
So when I read all these, they all appear to be protected disclosures.

[00:05:25] Speaker 03:
He filed this complaint with EEO, he filed this complaint with OIG, and the issues have since narrowed from the board.

[00:05:36] Speaker 03:
But the grievance, in our view, does constitute protected activity.

[00:05:40] Speaker 00:
If we disagree, then that's it, right?

[00:05:42] Speaker 03:
So if you disagree, he did engage in other protected activity, which the board did acknowledge.

[00:05:48] Speaker 03:
And that was the administrative investigation that occurred several months later.

[00:05:52] Speaker 00:
The problem there is that the deciding official took whatever action you're complaining of with regard to this disclosure.

[00:06:03] Speaker 00:
claim she didn't know about this and so she had no knowledge and therefore you couldn't invoke the knowledge timing test or show that there was retaliation.

[00:06:11] Speaker 03:
So if you review the hearing testimony, I understand there wasn't a transcript, but there is hearing audio that is part of the record at appendix

[00:06:19] Speaker 03:
She says that she was not informed of the identity of anyone participating in the investigation.

[00:06:25] Speaker 03:
She says that she was not given a copy of the report.

[00:06:29] Speaker 03:
She never says in the testimony that she did not know that Mr. McInnis was participating.

[00:06:35] Speaker 00:
Again, this isn't all.

[00:06:40] Speaker 00:
a factual finding against your client on this point and based on this testimony and you know you want to pick apart the testimony and say well it could support a different view but can we really do that under a substantial evidence review?

[00:06:55] Speaker 03:
So looking beyond her testimony, it is abundantly clear that she knew he engaged in protected activity.

[00:07:01] Speaker 03:
She called him a troublemaker.

[00:07:03] Speaker 03:
She testified... No, no, no.

[00:07:05] Speaker 00:
Not just that he engaged in protective activity, but he engaged in the protected activity of participating in this investigation.

[00:07:12] Speaker 00:
That's the problem with your references to these more general

[00:07:16] Speaker 00:
general notions that he was a troublemaker and the like.

[00:07:19] Speaker 00:
You don't win if you just show that she knew he was a troublemaker.

[00:07:25] Speaker 00:
You have to show for this particular disclosure that she knew of it.

[00:07:28] Speaker 00:
And the disclosure is him telling things during the course of this investigation.

[00:07:33] Speaker 00:
And the board said, she said, I didn't know that he participated.

[00:07:39] Speaker 00:
And we may even disagree with that.

[00:07:42] Speaker 00:
But if there's evidence and they cited the evidence which you pointed to where she said I didn't know of it and I wasn't given a copy, isn't that substantial evidence?

[00:07:52] Speaker 03:
So this was an office-wide investigation.

[00:07:56] Speaker 03:
She knew that this was an employee who was constantly making complaints.

[00:08:00] Speaker 03:
She knew his reputation.

[00:08:01] Speaker 00:
I get it.

[00:08:02] Speaker 00:
You're arguing the inferences on the facts.

[00:08:04] Speaker 00:
And you may have the better argument on inferences.

[00:08:07] Speaker 00:
But what are we to do with the board's fact-finding?

[00:08:09] Speaker 00:
Are you saying that all this other stuff is enough to make it that no reasonable fact-finder could have believed the board's fact-finding?

[00:08:16] Speaker 00:
Because that's the standard, right?

[00:08:18] Speaker 03:
That is the standard.

[00:08:19] Speaker 03:
And I think the judge weighed her credibility.

[00:08:22] Speaker 03:
This is an appeal from a hearing that an administrative judge witnessed her testimony and witnessed my client's testimony.

[00:08:29] Speaker 03:
And the judge made a determination that she was aware and that there was a motive.

[00:08:34] Speaker 00:
So they weighed her credibility.

[00:08:35] Speaker 00:
Did the administrative judge make a specific credibility determination that

[00:08:40] Speaker 00:
that the judge didn't believe her on that point.

[00:08:44] Speaker 03:
She did not make a specific credibility determination on that witness, though she did make credibility determination.

[00:08:48] Speaker 00:
I mean, if the AJ had made a credibility determination, then you'd be in good shape because the board can't overturn that.

[00:08:54] Speaker 00:
But I didn't see any kind of the traditional factors under Hillen where the AJ references that, right?

[00:09:01] Speaker 03:
You are correct.

[00:09:01] Speaker 01:
No, there was no specific... And so we can overturn it unless it's based on demeanor, right?

[00:09:06] Speaker 03:
That is correct.

[00:09:09] Speaker 00:
So they applied the proper, the board, the full board applied the proper factors on her head to correct.

[00:09:16] Speaker 00:
So not arguing a legal error there.

[00:09:19] Speaker 03:
No.

[00:09:19] Speaker 03:
So for argument's sake, assuming that she does not have knowledge that we need to overturn at this stage, we can look at other factors like whether or not she had a motive to retaliate and whether or not the agency's reasons for the actions were worthy of belief.

[00:09:37] Speaker 03:
Again, Ms.

[00:09:39] Speaker 03:
Potts was actually implicated in this investigation.

[00:09:43] Speaker 03:
It was recommended that she attend additional supervisory training.

[00:09:49] Speaker 03:
This is at Appendix 990.

[00:09:53] Speaker 03:
The investigation also found that management had played a vital role in allowing this behavior to manifest.

[00:10:00] Speaker 03:
So I would argue that under Phillips v. Department of Transportation,

[00:10:06] Speaker 03:
that criticism of her as a supervisor, as someone who is managing that office, we can impute a retaliatory motive upon her.

[00:10:19] Speaker 03:
We already know that she was hostile towards his protected activity.

[00:10:24] Speaker 03:
I think that's abundantly clear.

[00:10:27] Speaker 03:
His disclosures implicated her and so therefore even if we can establish knowledge timing, which I do believe that we could based on my earlier arguments, I think that we can still prove his case in chief that

[00:10:43] Speaker 03:
The timing, I mean, he was put on a PIP within three months of the end of the investigation.

[00:10:48] Speaker 03:
He was actually suspended four days after the completion of the investigation.

[00:10:54] Speaker 03:
His performance was always consistent.

[00:10:56] Speaker 03:
He was rated the same in prior years.

[00:10:58] Speaker 03:
All of a sudden, he engages in protected activity.

[00:11:01] Speaker 03:
This new supervisor comes along, and we have the personnel actions before us.

[00:11:07] Speaker 03:
So I would respectfully request that if you believe that we've met our case in chief, that you remand the case back to the board for a full analysis of whether or not they've met their burden under the law.

[00:11:22] Speaker 03:
Thank you.

[00:11:27] Speaker 01:
Thank you.

[00:11:28] Speaker 01:
Ms.

[00:11:28] Speaker 01:
Temahami.

[00:11:32] Speaker 02:
Good morning, Your Honors.

[00:11:34] Speaker 02:
Excuse me.

[00:11:34] Speaker 02:
May I please support?

[00:11:36] Speaker 02:
The court should affirm the final decision of the board because substantial evidence supports the board's conclusion that Mr. McHenness failed to prove that he engaged in whistleblower activity that was a contributing factor in the agency's decision to place him on a performance improvement plan and subsequently remove him when he failed to improve.

[00:11:56] Speaker 00:
Mr. McKenna filed his IRA appeal alleging that he engaged in... Just talk about... I mean, I think the government agrees that there's one obligation of a protected activity engaged or cooperating in an agency investigation.

[00:12:10] Speaker 00:
Right?

[00:12:12] Speaker 02:
Yes.

[00:12:12] Speaker 00:
I mean, the board found out you didn't challenge that.

[00:12:15] Speaker 00:
And the agency prevailed below because they...

[00:12:19] Speaker 00:
proved to the board satisfaction that the deciding official didn't know about his involvement in that investigation.

[00:12:25] Speaker 02:
Correct.

[00:12:27] Speaker 00:
And how big is this office?

[00:12:30] Speaker 00:
I mean, given that this was an office-wide investigation, the agency, the deciding official knew who he was, that he was involved in all these kind of complaints.

[00:12:41] Speaker 00:
Is it even plausible to think that she didn't at least have a reasonable suspicion or basically know that he was engaging in the investigation, cooperating with the investigation?

[00:12:54] Speaker 00:
It seems almost incredible to me.

[00:12:57] Speaker 02:
Well, Your Honor,

[00:12:59] Speaker 02:
First, I think, as you yourself noted in the questions to my friend here, the substantial evidence standard.

[00:13:07] Speaker 00:
Oh, I get it.

[00:13:07] Speaker 00:
Believe me, I get it.

[00:13:08] Speaker 00:
But how far does that go?

[00:13:11] Speaker 00:
If we find it's just simply implausible that she didn't know about that, does that translate into a lack of substantial evidence?

[00:13:21] Speaker 02:
No, Your Honor.

[00:13:21] Speaker 02:
I think for the court to find that that was implausible, the court would have to make several inferences

[00:13:27] Speaker 02:
and ignore the direct unimpeachable and sworn testimony by Ms.

[00:13:34] Speaker 02:
Potts herself and in fact all of the witnesses that testified regarding this investigation stated that they did not they were not informed of her testimony seemed pretty carefully calibrated to say

[00:13:47] Speaker 00:
I wasn't informed, I wasn't given a copy, blah, blah, blah.

[00:13:52] Speaker 00:
Did it ever say explicitly I had no knowledge of his involvement?

[00:13:58] Speaker 02:
She also, Your Honor, said she did not base a proposed removal on any alleged whistleblower disclosure.

[00:14:03] Speaker 00:
Well, that's a different question of whether she had knowledge.

[00:14:07] Speaker 02:
She as well as several witnesses testified that, correct, she wasn't informed.

[00:14:14] Speaker 02:
She never received a copy of the report.

[00:14:17] Speaker 00:
I mean, if I was a deciding official and I wanted to try to, and I'm not suggesting that she tried to avoid the law, but I want to be careful about it and try to defend myself against whistleblower retaliation, I might say,

[00:14:32] Speaker 00:
Even if I pretty much knew, I would say, well, I was never specifically informed.

[00:14:37] Speaker 00:
I was never given a copy of this.

[00:14:40] Speaker 00:
I did not actually know for a fact and stuff like that, which falls far short of her really knowing about it.

[00:14:48] Speaker 02:
I think Your Honor, again, we'd have to make a lot of inferences based on the record when we do have her unimpeachable testimony.

[00:14:56] Speaker 02:
In addition to that, though, several witnesses, Ms.

[00:14:59] Speaker 01:
Tomlinson... At the hearing, was she asked the kind of questions that Judge Hughes is talking about?

[00:15:05] Speaker 01:
Was she asked, were you aware of it?

[00:15:09] Speaker 01:
And are those sort of careful answers in response to that kind of question, or are those different questions?

[00:15:15] Speaker 02:
I do not recall the exact question to which she responded when she stated that, but I think it was pretty clear based on her testimony that she did not know.

[00:15:26] Speaker 02:
And Ms.

[00:15:26] Speaker 02:
Tomlin also testified that it was based on how the office was arranged, it was impossible to see who was being interviewed by the investigator.

[00:15:36] Speaker 02:
Additionally, because Mr. McInnis has suggested that somehow this investigation was prompted by his disclosures, it was not.

[00:15:47] Speaker 02:
It was Ms.

[00:15:47] Speaker 02:
Mock, which was the manager of the office, that testified that she requested the investigation in the office, particularly because of Mr. McInnis's

[00:15:59] Speaker 02:
behavior in the office.

[00:16:01] Speaker 02:
He repeatedly refused to acknowledge Ms.

[00:16:04] Speaker 02:
Potts as his supervisor, refused to obey her instructions and commands.

[00:16:09] Speaker 02:
Several other people had gone to her and complained about his outbursts in the office, and I think all of that is reflected in the investigator's report as well.

[00:16:19] Speaker 02:
So it wasn't anything that Mr. McHenness himself

[00:16:23] Speaker 02:
disclosed that prompted this investigation.

[00:16:25] Speaker 02:
It was the management feeling at their end and requesting some guidance from higher-ups to figure out how to deal with this environment.

[00:16:38] Speaker 02:
That was, as the investigator found, principally because of Mr. McKenna's own behavior.

[00:16:44] Speaker 01:
Well, the fact that management requested the investigation perhaps as further evidence that she knew about it.

[00:16:53] Speaker 02:
She knew about, about.

[00:16:55] Speaker 01:
Society official knew about it.

[00:16:58] Speaker 01:
She certainly knew about the investigation, right?

[00:17:00] Speaker 02:
She knew about the investigation because she herself was interviewed.

[00:17:04] Speaker 02:
If we look at the questions of the investigator as well and the instructions for the questions, it's very clear the instructions were, please do not disclose this to anyone.

[00:17:17] Speaker 02:
I think the investigator was very careful to make sure that the investigation was confidential, including the results of the investigation.

[00:17:29] Speaker 02:
I can also address the grievance issue if the court has any questions about that.

[00:17:36] Speaker 02:
I think the law is very clear that the board's jurisdiction is limited to prohibited personnel actions that are

[00:17:46] Speaker 02:
that are due to a disclosure covered by either 2302B8, which generally covers retaliation for whistleblowing, or 2302B9AI, which covers retaliation for exercising.

[00:18:01] Speaker 00:
The difference in this case comes down to if the grievance had explicitly said,

[00:18:09] Speaker 00:
You're retaliated against me for disclosing your violations of the FMLA.

[00:18:17] Speaker 00:
That would be a VA.

[00:18:19] Speaker 00:
But you're retaliating against me for exercising my FMLA rights.

[00:18:23] Speaker 00:
That's a two.

[00:18:25] Speaker 02:
I think so, correct, Your Honor.

[00:18:27] Speaker 02:
And I want to talk about the timeline just for a second, because he's making this argument that, first of all, my friend just admitted that he never even mentioned retaliation for whistleblowing.

[00:18:40] Speaker 02:
He speculates, oh, this seems pretty unprofessional.

[00:18:43] Speaker 02:
This seems like it's retaliation.

[00:18:46] Speaker 02:
According to the timeline, his first alleged

[00:18:52] Speaker 02:
protected activity is somewhere in 2012, he claimed that he filed EEO complaints.

[00:19:00] Speaker 02:
And as the board found, that's not sufficient for IRA purposes.

[00:19:04] Speaker 02:
So the second alleged protected activity is this filing of a grievance.

[00:19:11] Speaker 02:
So in essence, he's saying, this is the first time that I'm engaging in protected activity, but at the same time,

[00:19:19] Speaker 02:
At the same time, he can't be claiming that he was retaliated for whistleblowing activity if the whistleblowing activity hadn't yet occurred, is my point.

[00:19:35] Speaker 02:
Unless the court, and finally, Your Honors, the invitation that the court engage in the analysis of whether the board, or excuse me, whether the agency met its burden, the court... It's not factual.

[00:19:48] Speaker 00:
I mean, if we agreed that it needed to go, that she'd proven the initial stages, we would just have to send it back, right?

[00:19:54] Speaker 02:
Yes, Your Honor.

[00:19:57] Speaker 02:
Unless the court has any other questions, we respectfully request that the court affirm the decision of the board.

[00:20:02] Speaker 01:
Thank you.

[00:20:09] Speaker 03:
I just have two points.

[00:20:11] Speaker 03:
I wanted to point the court's attention to Williams v. NLRB 59 MSRP 640, where it specifically says the word whistleblower does not need to be a part of a disclosure for it to be protected.

[00:20:24] Speaker 03:
And second, I want to point the court to the statement that Ms.

[00:20:31] Speaker 03:
Potts made during the investigation, as I referenced in my brief

[00:20:35] Speaker 03:
She referenced Mr. McInnis over 30 times by name, despite the fact that no questions ever specifically asked about Mr. McInnis.

[00:20:45] Speaker 03:
That excludes her use of him, he, and his.

[00:20:47] Speaker 00:
I understand all your pointing to these facts.

[00:20:52] Speaker 00:
The problem is

[00:20:53] Speaker 00:
still the substantial evidence standard and he also has testimony saying she didn't know of his involvement and unless we find that that was inherently incredible then it supports the board's factual finding doesn't it?

[00:21:10] Speaker 03:
It does, but I would implore you to listen to her testimony.

[00:21:14] Speaker 03:
She specifically says, I was not informed.

[00:21:19] Speaker 03:
There's maybe a five-minute piece of her testimony, as well as on cross-examination that I think... What was the question that she was asked?

[00:21:29] Speaker 03:
She was asked... Don't interrupt.

[00:21:32] Speaker 01:
What question was she asked when she gave that response?

[00:21:34] Speaker 03:
She was asked...

[00:21:36] Speaker 03:
Let me see if I actually have the exact language to give you.

[00:21:39] Speaker 03:
She was asked who participated in the investigation, and she said, I was not informed.

[00:21:49] Speaker 03:
So she had an invitation to provide, I guess, a list of people if she knew.

[00:21:53] Speaker 03:
To me, it does not make sense that she did not know of this.

[00:22:03] Speaker 00:
She knew that everyone participated.

[00:22:14] Speaker 03:
That was not the follow-up question.

[00:22:15] Speaker 03:
The follow-up question, I think, was were you given a copy of the report?

[00:22:21] Speaker 03:
I think there's enough.

[00:22:22] Speaker 01:
To invoke the knowledge timing test, it wouldn't be sufficient that she knew that he participated in the investigation.

[00:22:31] Speaker 01:
She'd have to know that he made allegations.

[00:22:35] Speaker 01:
There's still more allegations in the course of the investigation, right?

[00:22:38] Speaker 03:
And I believe that she did know if you read her question.

[00:22:42] Speaker 03:
That's the answer to my question.

[00:22:43] Speaker 03:
Yes, you are correct, Your Honor.

[00:22:44] Speaker 03:
Thank you.

[00:22:49] Speaker 01:
Okay, thank you.

[00:22:50] Speaker 01:
Thank both counsel, the case is submitted.