Where a man was suspended shortly after he made alleged disclosures of misconduct, but the disciplinary process was initiated before the disclosures were made, the disciplinarian was not connected in any way to the disclosures, did not consider the disclosures when determining the appropriate sanction, and imposed a significantly less severe suspension than was recommended by the disciplinary panel, the employee failed to show his suspension was retaliation for his disclosures.
Yuriy Mikhaylov, an employee of the Immigration and Customs Enforcement, or ICE, petitions for review of the final judgment of the Merit Systems Protection Board, which rejected Mikhaylov’s claim that the ICE suspended him for two days in retaliation for his disclosures of misconduct.
Mikhaylov first challenges the administrative judge’s determination that the protected disclosures were not a contributing factor to the ICE’s actions. Mikhaylov contends the disclosures here were contributing factors as a matter of law because the deciding official learned about the disclosures during his review of the case file shortly before imposing the suspension. This court disagrees.
When disciplinary action is initiated fast on the heels of an employee making a protected disclosure, a reasonable person could easily conclude that the discipline was in retaliation for the disclosure. On those paradigmatic facts, the protected disclosure must be viewed as a contributing factor.
The facts of this case, however, are very different from the paradigmatic whistleblower case. Here, the disciplinary process was initiated before Mikhaylov made the protected disclosures. To be sure, the deciding official did impose the two-day suspension shortly after he learned through the case file that Mikhaylov had made protected disclosures.
The deciding official, however, came from an office outside of Mikhaylov’s chain of command and was not connected in any way to the disclosures. Moreover, the deciding official testified that he did not consider the disclosures when determining the appropriate sanction, and he imposed a significantly less severe suspension than was recommended by the disciplinary panel.
The administrative judge, finding the deciding official’s testimony to be credible and observing that the shorter suspension imposed supported the official’s claim that the disclosure had no effect on his decision, concluded that the disclosures did not contribute to the personnel action. That is a reasonable view of the facts in the record, and the standard of review does not permit this court to reject it.
Mikhaylov also challenges the administrative judge’s alternate determination that, even if the protected disclosures did contribute to the personnel action, the agency proved by clear and convincing evidence that it would have taken the same action even without the disclosures.
When considering whether the agency carried its burden, the administrative judge applied the factors synthesized by the Federal Circuit in Carr v. Social Security Administration, 185 F.3d 1318 (Fed. Cir. 1999). The Carr factors have been adopted by several circuits. Although this court has not issued a published opinion addressing the issue, it has utilized the Carr factors in an unpublished opinion. This court believes the Carr factors provide useful guidance for evaluating the agency’s claim that it would have taken the personnel action regardless of the disclosures, and therefore applies them in this case.
The Carr factors are the strength of the agency’s evidence in support of its personnel action; the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision and any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated.
Because the administrative judge committed no legal error when applying the Carr factors and his factual findings are supported by substantial evidence, this court rejects Mikhaylov’s challenge to the administrative judge’s conclusion that the agency carried its burden of proving that it would have taken the same disciplinary action in the absence of the disclosures.
Petition for review denied.
Mikhaylov v. Department of Homeland Security, Case No. 21-1169, March 15, 2023. 4th Cir. (Traxler), from S Merit Systems Protection Board. Morris Eli Fischer for Appellant. Kelly A. Krystyniak for Appellee. VLW 023-2-076. 17 pp.