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 76 M.S.P.R. 317; 1997 MSPB LEXIS 1010

Merit Systems Protection Board

August 18, 1997

DOCKET NUMBER DE-0752-94-0377-B-1

Opinion

 [*320]  BEFORE 

Ben L. Erdreich, Chairman

Beth S. Slavet, Vice Chair

OPINION AND ORDER 

The appellant petitions for review of a remand initial decision, issued June 28, 1996, that found that he did not establish the affirmative defense of whistleblowing because the agency showed by clear and convincing evidence that it would have taken the same personnel action in the absence of his protected disclosure. For the reasons set forth below, the Board GRANTS the appellant's petition for review, REVERSES the remand initial decision, and ORDERS CANCELLATION of the appellant's demotion. 1

 [**2]   

BACKGROUND 

Effective May 29, 1994, the agency demoted the appellant from his GS-12 Disciplinary Hearing Officer (DHO) position in Florence, Colorado,  [*321]  to the position of GS-11 Warranty Coordinator. The agency's demotion action was based on the following charges and specifications:

Charge 1: Preferential treatment toward inmates.

Specification 1: Giving a pen to an inmate.

Specification 2: Allowing inmates to make personal and/or legal telephone calls.

Charge 2: Unprofessional Conduct.

Specification 1: Using inappropriate language in an official document, viz., writing in a hearing report that he felt that in a particular case "the shot is bullshit."

Specification 2: Engaging in flirtatious conduct with female staff.

Specification 3: Making derogatory comments about prison officials in front of inmates.

Charge 3: Failure to report an alleged assault on an inmate. See Initial Appeal File (IAF), Tab 8, Subtabs 4b and 4h. On appeal to the Board, the administrative judge sustained specification one of the first charge (giving a pen to an inmate) and all three specifications [**3]  of the second charge. The administrative judge did not sustain the third charge. Initial Decision (ID), IAF, Tab 34. In addition, the administrative judge found that the appellant had not proven his affirmative defense of reprisal for whistleblowing. Id. 

The appellant filed a petition for review asserting, in part, error in the administrative judge's findings concerning his affirmative defense of reprisal for whistleblowing. The Board vacated that part of the initial decision regarding the alleged reprisal for whistleblowing finding, contrary to the administrative judge, that an October 10, 1993, memorandum written by the appellant to Regional Director Patrick Kane concerning improper interference in the disciplinary process was a protected disclosure under 5 U.S.C. § 2302(b)(8). See Russell v. Department of Justice, 68 M.S.P.R. 337, 345 (1995). Specifically, the Board found that the appellant disclosed in his October 10, 1993, memorandum that Tom L. Wooten, the Warden of the Florence, Colorado, facility, and Darwin L. Campbell Jr., the Regional Discipline Hearing Administrator (DHA), improperly interfered in his adjudication of inmate [**4]  misconduct during an incident in the prison's recreation poolroom. See id. at 343-45. The Board then remanded the appeal to the administrative judge to determine whether the protected disclosure was a contributing factor in the agency's action and if so, whether the agency proved that it would have taken the same personnel action absent the protected disclosure. Id. 

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 76 M.S.P.R. 317 *;  1997 MSPB LEXIS 1010 **

EDWARD M. RUSSELL, Appellant, v. DEPARTMENT OF JUSTICE, Agency.

CORE TERMS

disclosure, whistleblowing, personnel action, inmate, investigations, retaliate, clear and convincing evidence, contributing factor, misconduct, employees, Regional, demotion, motive, administrative judge, specifications, allegations, staff, affirmative defense, similarly situated, initial decision, record evidence, retaliatory, charges, petition for review