In a 2-0 decision, the Merit Systems Protection Board Nov. 21 granted a former chief of staff with the Department of State’s Office of Accountability and Transparency (OAT) in Iraq another opportunity to prove he was retaliated against for blowing the whistle on security breaches and corruption in the Iraqi government, ruling the administrative judge ignored key evidence and took in evidence out of order, prejudicing the appellant’s case (James F. Mattil v. Dep’t of State, 2012 M.S.P.B. 127 (Nov. 21, 2012)).

Early Turmoil

On October 25, 2006, the State Department appointed James F. Mattil to a one-year term as chief of staff of the Office of Accountability and Transparency (OAT) in its Iraq Reconstruction Management Office. The position was based in Washington but required some duties to be performed in Iraq.

Approximately five months into the job, Mattil informed the security officer at the U.S. Embassy in Baghdad that “an individual was violating security policy and endangering the lives of security personnel.” According to Mattil, this disclosure “angered his immediate supervisor” because the supervisor feared it might thwart his career.

In late July 2007, Mattil blew the whistle about corruption in Iraq and “actions by Iraqi Prime Minister Al-Maliki to undermine anti-corruption programs in Iraq” to the House Committee on Oversight and Government Reform. This resulted in a request by Rep. Henry Waxman for Mattil to appear before the Oversight Committee, in September 2007.

Mattil alleged that, as a result of this disclosure, the agency “conducted an investigation into whether he was the source of a leak of information, relieved him of his duties, ordered him to work from home rather than return to Iraq, denied him access to agency computers, phones, resources, and offices, and excluded him from communications related to ongoing events.”

Initial Decision

The administrative judge, Anthony W. Cummings, Washington Field Office, decided to bifurcate the hearing, first addressing whether the agency could prove by clear and convincing evidence that it would have taken all of the appellant’s alleged personnel actions absent the appellant’s alleged whistleblowing.

Following the hearing, the AJ denied Mattil’s request for corrective action and found for the State Department.

In reaching this conclusion, the AJ credited the testimony of agency witnesses that the personnel actions were unrelated to Mattil’s alleged whistleblowing, and he found that the Mattil’s version of the incidents lacked credibility.

Petition for Review

The Board vacated the initial decision and remanded the case to the regional office for further adjudication. It found that the decision to bifurcate the hearing “was unwarranted under the circumstances in this appeal” because “full and fair consideration” of Mattil’s claim requires adjudication of both the merits of his prima facie case of whistleblower reprisal as well as the agency’s affirmative defense.

“Many of the alleged procedural errors at issue on review,” the Board said, “stem from the administrative judge’s determination to bifurcate the hearing on the merits and hold an initial hearing” limited to the agency’s affirmative defense.

(It should be noted that Section 114 of the recently-passed Whistleblower Protection Enhancement Act would no longer permit AJs to bifurcate hearings and hear the agency’s affirmative defense portion before the appellant’s prima facie case.)

Personnel Actions Scrutinized

Regarding Mattil’s allegations of reprisal, the Board agreed with the AJ that only one of the alleged actions relating to the first disclosure–the agency’s denial of an extension of his appointment–was a personnel action.

It also agreed that three of alleged actions relating to the second disclosure–directing the appellant to work from home rather than in the State Department offices, denying him access to agency computers, phones, resources, and offices, and excluding him from communications related to ongoing events in which he was involved–were “significant change[s] in duties, responsibilities, or working conditions” and thus were covered under 5 U.S.C. § 2302(a)(2)(A).

failure to provide a valid position description does not constitute a significant change in working conditions, the Board said.

It also noted that “[a]lthough an investigation is not generally a personnel action, it is proper to consider evidence regarding an investigation if it is so closely related to a covered personnel action that it could have been a pretext for gathering information to retaliate for whistleblowing.” The Board said that Mattil should be afforded the opportunity to develop this claim on remand.

The agency’s failure to process his Equal Employment Opportunity complaint ”in its usual manner may constitute a significant change in working conditions,” the Board said.

Finally, the Board disagreed with the AJ’s determination that Mattil’s claim that the agency “blacklisted” him from employment opportunities could not constitute a covered personnel action. ”Although ‘blacklisting’ per se is not an enumerated personnel action, construed broadly it could constitute a failure to appoint if the appellant identifies particular employment opportunities that the agency denied as part of the alleged ‘blacklisting.’”

Consideration of All Evidence (Whitmore Doctrine)

The Board found that the AJ failed to consider all of the pertinent and countervailing evidence in determining whether the agency established its affirmative defense with clear and convincing evidence.

It cited to the recent Federal Circuit case Whitmore v. Dep’t of Labor680 F.3d 1353 (Fed. Cir. 2012), which cautioned that failure to consider all the pertinent record evidence, or taking an “unduly dismissive and restrictive view of retaliatory motive, would be grounds for remand.

Here, the Board noted,

the administrative judge focused almost exclusively on the hearing testimony in making his clear and convincing evidence determination. In doing so, he mainly discussed the agency’s testimony supporting its reason for taking the actions at issue. In fact, the administrative judge did not discuss any evidence supporting the appellant’s position for some of these alleged personnel actions at issue.

The Board remanded the case back to AJ Cummings with instructions.

MSPB Member Mark A. Robbins did not participate in this decision.

The Board’s Opinion is available here.
The Initial Decision is available here.