File 2: Opinion of Member Pope

[ v60 p215 ]


Opinion of Member Carol Waller Pope, dissenting in part:

      I agree: (1) that the Authority has jurisdiction to resolve the exceptions; (2) to deny the bias, nonfact, and First Amendment exceptions; (3) to set aside the finding of a Fifth Amendment violation; (4) that the First Amendment does not, by itself, authorize any of the remedies; and (5) that the Back Pay Act authorizes backpay and attorney fees, but that those remedies must be remanded. [n1]  However, for the reasons that follow, I would deny the WPA and exceeded authority exceptions. In addition, although the majority does not address whether the WPA authorizes the remedies awarded by the Arbitrator (because they have found no WPA violation), I would address that issue and: find that the WPA authorizes the awards of moving expenses, the cost of a replacement life insurance policy, medical costs and travel expenses; remand the award of lost retirement benefits; and set aside the awards of psychological damages and front pay. Finally, I disagree with the decision to exclude certain billed hours from the remand of the award of attorney fees.

      With regard to the WPA, the majority places great emphasis on the fact that Gallup officials did not revoke the transfer offer. In my view, this does not demonstrate that the award is contrary to the WPA. At the jurisdictional stage of an individual right of action (IRA) appeal, it is necessary to demonstrate that an "agency" has taken a personnel action; specific management officials need not be identified. Worthington v. DOD, 81 M.S.P.R. 532, 536 (1999) (Worthington). In addition, at the merits stage of an IRA appeal, the Merit Systems Protection Board (MSPB) examines "whether the appellant established by preponderant evidence that [he or] she engaged in whistleblowing activity by making a protected disclosure under 5 U.S.C. § 2302(b)(8) and that such whistleblowing activity was a contributing factor in the personnel action; if so, the Board must order corrective action unless the agency established by clear and convincing evidence that it would have taken the same personnel action in the absence of the disclosure." Sutton v. DOJ, 94 M.S.P.R. 4, 12-13 (2003) (citations and emphasis omitted), aff'd per curiam, No. 04-3003, 2004 WL 1009416 (Fed. Cir. May 6, 2004). This standard does not require the identification of the particular management officials who took the personnel action, and neither the Agency nor the majority cites --and I have found -- no authority for the notion that such identification is otherwise required. [n2] 

      I would find that the threshold jurisdictional requirement of an "agency" taking a "personnel action" is met here. In this connection, I disagree with the majority's assumption that Gallup is the "agency," and that the phone call is the "personnel action," for purposes of the WPA. An "agency," for WPA purposes, is "an Executive agency[,]" 5 U.S.C. § 2302(a)(2)(C), and it is undisputed that the Department of Health and Human Services (HHS) is an Executive agency. Just as importantly, the Arbitrator found that the "personnel action" for WPA purposes was the revocation of the transfer offer, not the phone call, and neither party disputes that finding. Award at 37 (emphasis added). It also is undisputed that HHS employees at Whiteriver took (and had the authority to take) that personnel action. Finally, neither the Agency nor the majority cites any authority for construing the WPA as prohibiting an arbitrator from finding a WPA violation where the particular component of the agency that took the personnel action (here, Whiteriver) is not a party to the collective bargaining agreement. I note, in this connection, that the MSPB adjudicates alleged violations of the [ v60 p216 ] WPA whether or not the affected employee is covered by a collective bargaining agreement, and § 7121(b)(2)(A) of the Statute indicates that Congress intended arbitrators to substitute for the MSPB when resolving WPA claims. [n3]  Thus, I would find that "agency" employees at Whiteriver took, and had the authority to take, a "personnel action," within the meaning of the WPA.

      Turning to the merits of the alleged WPA violation, the first step is to determine whether there has been a protected disclosure, which is pertinently defined as "any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences . . . a substantial and specific danger to public health or safety . . . ." 5 U.S.C. § 2302(b)(8)(A)(ii). Here, the grievant disclosed information regarding nurses working double shifts and ICU understaffing, which the Arbitrator found raised serious questions concerning patient care. The disclosures made by the grievant cited specific problems with the Agency's patient care practices, rather than involving general statements that the Agency is not doing enough to protect patient safety. As a result, I would conclude that the grievant disclosed a substantial and specific danger to public health or safety. See Herman v. DOJ, 193 F.3d 1375, 1379 (Fed. Cir. 1999) (citing S.Rep. No. 969, 95th Cong., 2d Sess. 8 (1978), reprinted in 1978 U.S.C.C.A.N. 2723, 2730)) (allegation that cooling system of nuclear reactor is inadequate would be protected, but general criticisms that agency is not doing enough to protect environment would not be protected).

      The second step in the WPA analysis is determining whether the disclosure was a contributing factor in the personnel action, which may be demonstrated, as relevant here, by proving that the acting official had constructive knowledge of the disclosure. See Marchese v. Dep't of the Navy, 65 M.S.P.R. 104, 108 (1994) (citation omitted). Constructive knowledge may be established by demonstrating that an individual with actual knowledge of the disclosure influenced the officials accused of taking the retaliatory action. See id. (citation omitted). See also Marano v. DOJ, 2 F.3d 1137, 1143 (Fed. Cir. 1993). The Arbitrator's factual findings in this case -- which the majority does not dispute -- demonstrate that individuals with actual knowledge of the disclosure (the Gallup officials) influenced the officials who took the personnel actions (the Whiteriver officials). Thus, constructive knowledge has been demonstrated.

      The third and final step in the WPA analysis is determining whether the agency has shown by clear and convincing evidence that it would have taken the same personnel action in the absence of whistleblowing. This analysis takes into account: the strength of the agency's evidence in support of its personnel action; any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated; and the existence and strength of any motive to retaliate on the part of agency officials who were involved in the decision. See Geyer v. DOJ, 70 M.S.P.R. 682, 688 (1996) (Geyer), aff'd, 116 F.3d 1497 (Fed. Cir. 1997). With regard to the strength of the Agency's evidence in support of Whiteriver's revocation of the transfer offer, before the Arbitrator, the Agency provided no evidence and solicited no testimony indicating that the transfer offer would have been revoked absent the grievant's protected disclosures, [n4]  and the Agency offers no alternative explanation in its exceptions for the revocation. With regard to whether there is any evidence that HHS takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated, the Agency has provided no evidence regarding how HHS treats similarly situated employees. Thus, I would find that at least two of the three Geyer factors support a conclusion that the Agency has not shown by clear and convincing evidence that HHS would have revoked the transfer offer absent the whistleblowing, and I would conclude that the Agency violated the WPA here. [n5]  [ v60 p217 ]

      I would also conclude that the Arbitrator did not exceed his authority by issuing remedies related to an action by Whiteriver officials, specifically, the revocation of the transfer offer. The issue of the appropriateness of Whiteriver's revocation of the transfer offer necessarily arose from the stipulated issue involving Gallup's "telephone communications" with Whiteriver. Merits Award at 3. In this regard, the Union argued before the Arbitrator that the disputed phone call resulted in the revocation, see id. at 2, and the Arbitrator found that the call was designed to cause that revocation, see id. at 2 & 38. Further, the Agency does not cite any specific limitation on the Arbitrator's authority to adjudicate the appropriateness of Whiteriver's personnel action merely because Whiteriver is not a party to the collective bargaining agreement. Moreover, the Arbitrator neither directed Whiteriver to take any actions here, nor directed Gallup to take any actions that it lacks authority to take. Accordingly, I would find that the Agency has not demonstrated that the Arbitrator exceeded his authority.

      I also would find that several of the remedies not authorized by the Back Pay Act are authorized by the WPA. In this connection, the WPA authorizes awards of "back pay and related benefits, medical costs incurred, travel expenses, and any other reasonable and foreseeable consequential [damages]." [n6]  5 U.S.C. § 1221(g)(1)(A)(ii). Consequential damages are "out-of-pocket costs." Bohac v. Dep't of Agric., 239 F.3d 1334, 1342 (Fed. Cir. 2001). I would find that both moving expenses and the cost of replacing a life insurance policy are consequential damages because they are out-of-pocket costs that the Arbitrator found were, or will be, incurred by the grievant as a result of the Agency's actions. See Remedy Award at 10, 11. Although the Agency asserts that the grievant submitted only a speculative estimate of the cost of replacing a life insurance policy, the Agency does not explain why the affidavit submitted by the grievant, see Opp'n, Tab I, Affidavit at 3, provides insufficient evidence supporting the Arbitrator's award. Moreover, to the extent the Agency is contending that the grievant cannot recover this cost until he actually incurs it, I would reject that argument because the WPA authorizes recovery of damages that have not yet accrued if they result from the employer's retaliation and can be proven with reasonable certainty. See, e.g., Pastor v. Dep't of Veterans Affairs, 87 M.S.P.R. 609, 617 (2001) (future medical expenses).

      Further, the WPA expressly provides for the remedies of "medical costs incurred" and "travel expenses[,]" and I would deny the Agency's exceptions to those remedies. 5 U.S.C. § 1221(g)(1)(A)(ii). In so doing, I would reject the Agency's assertion that the grievant has not provided sufficient documentation of those expenses, because the grievant's affidavit details his expected medical costs (which actually total an amount greater than that awarded by the Arbitrator), see Opp'n, Attachment, Tab I, Affidavit at 2-3, and both a damages summary submitted by the Union to the Arbitrator and the grievant's affidavit detail his travel expenses, see Opp'n, Tab I, Damages Summary at 2 & Opp'n, Tab I, Affidavit at 2. As with the cost of a replacement life insurance policy, the Agency does not explain why this evidence is insufficient. Moreover, I would find that the Agency has not demonstrated that the remedies for travel expenses are duplicative. In this connection, the Arbitrator awarded $4,683 for "travel expenses for medical care," and then awarded $15,000 for several remedies, including medical costs and "related travel." Remedy Award at 10. However, the Union had requested two separate amounts of travel expenses: $4,683 incurred prior to the hearing (the amount of "travel expenses" awarded); and $370 incurred subsequent to the hearing. There is no basis for finding that the $15,000 award that included "related travel" among other benefits includes the $4,683 already awarded, as opposed to the $370 separately requested.

      With regard to the award of lost retirement benefits -- which I assume, without deciding, includes contributions to the grievant's thrift savings plan (TSP) and retirement fund that the Agency would have made if the grievant continued to be paid by the Agency [n7]  -- I would find that these benefits are not consequential damages under the WPA because the Union does not claim, and there is no basis for concluding, that they are "out-of-pocket costs" that the grievant has incurred or will incur. However, I would find that at least some of these damages may constitute benefits "related" to backpay within the meaning of the WPA. In this connection, Black's Law Dictionary defines a "backpay award" as "[a] judicial [ v60 p218 ] or quasi-judicial body's decision that an employee or ex-employee is entitled to accrued but uncollected wages or benefits." [n8]  Black's Law Dictionary 133 (7th ed. 1999). It also defines "benefit," in pertinent part, as "[a] benefit (other than direct salary or compensation) received by an employee from an employer, such as insurance, a company car, or a tuition allowance." Id. at 151. Webster's New World Dictionary defines "related," in pertinent part, as "connected or associated, as by origin or kind[.]" Webster's New World Dictionary 1132 (3rd college ed. 1986). [n9]  Any contributions that the Agency would have made to the grievant's TSP and retirement accounts prior to the remedy award (if the grievant had continued to be paid by the Agency) constitute benefits other than direct salary or compensation that are connected or associated with an award of accrued but uncollected wages or benefits -- and thus are benefits related to backpay. By contrast, any contributions that the Agency would have made subsequent to the remedy award if the grievant continued to work for the Agency are not connected or associated with "accrued" but uncollected wages or benefits -- and thus are not benefits related to backpay. Because the former is permitted under the WPA and the latter is not -- and it is unclear from the record which of these amounts are included in the remedy award -- I would remand this portion of the award for resubmission to the Arbitrator, absent settlement, for clarification. [n10] 

      Moreover, I would set aside the award of damages for psychological injury because damages for mental and emotional suffering are not authorized by the WPA. See Kinney v. Dep't of Agric., 82 M.S.P.R. 338, 342 (1999). I also would set aside the award of front pay. In this connection, although the Union contends that front pay is a consequential damage, there is no basis for concluding that front pay compensates the grievant for out-of-pocket costs. Further, I would reject the Union's argument that front pay is warranted as "backpay and related benefits" merely because other statutes containing similar terms, such as Title VII, permit awards of front pay. In this connection, Title VII does not allow awards of front pay where the employee is unable to return to work. See, e.g., Holly v. Runyon, 1997 WL 527551 (E.E.O.C.) at *4; Finlay v. Runyon, 1997 WL 221819 at *5 (E.E.O.C.). Here, it is undisputed that the grievant is unable to return to work. Thus, even assuming that the WPA should be interpreted in a manner similar to Title VII, front pay is not warranted here. The Union's reliance on Pollard v. E.I. Du Pont de Nemours & Co., 532 U.S. 843 (2001), is misplaced because, in that case, the Court did not address whether it is appropriate for an employee to receive front pay when he or she is unable to return to work.

      Finally, I would not exclude any billed hours from the remand of the attorney fee award. In this regard, where a party raises "alternative legal grounds for a desired outcome," the "rejection of . . . certain grounds is not a sufficient reason for reducing a fee." Hensley v. Eckerhart, 461 U.S. 424, 435 (1983). In this regard, "[a]n appellant need not necessarily prevail on a claim in order to recover attorney fees for work associated with that claim" where the successful and unsuccessful claims arise from a "common core of facts" and the claimed portion of work relating to the unsuccessful claims "significantly contributed to the success" of the successful claims and "eliminated [the] need for work that otherwise would have been required." Sowa v. Dep't of Veterans Affairs, 96 M.S.P.R. 408, 416 (2004) (citation omitted). The successful and unsuccessful claims in this case arise from a common core of facts. Although I agree with the majority that some of the billed hours are clearly associated with unsuccessful claims, that does not end the inquiry. Rather, if the work associated with those unsuccessful claims significantly contributed to the success of the successful claims or eliminated the need for work that otherwise would have been required, then that work may be included in the award of attorney fees. See id. Because the record does not provide a basis for making that determination, I would remand the award of attorney fees in its entirety for further findings.

      For the foregoing reasons, I dissent in part.


File 1: Authority's Decision in 60 FLRA No. 45
File 2: Opinion of Member Pope


Footnote # 1 for 60 FLRA No. 45 - Opinion of Member Pope

   For the reasons discussed below, I would remand the backpay award even though the Whistleblower Protection Act (WPA) provides an independent (from the Back Pay Act) entitlement to backpay.


Footnote # 2 for 60 FLRA No. 45 - Opinion of Member Pope

   The majority's reliance on Frederick v. DOJ, 73 F.3d 349 (Fed. Cir. 1996) (Frederick), is misplaced because Frederick is relevant only in cases involving disciplinary action brought against a management official, not cases involving IRA appeals. This is demonstrated by the different respective jurisdictional requirements in disciplinary and IRA cases, the different respective inquiries on the merits in those cases, and common sense. With regard to the jurisdictional requirements, in order to establish jurisdiction over a disciplinary action against a management official brought under 5 U.S.C. § 1214(f) or § 1215, it is necessary to establish that the official against whom discipline is sought took or failed to take a personnel action; by contrast, in an IRA appeal brought under 5 U.S.C. § 1221, it is only necessary to establish that the agency took a personnel action. See Worthington, 81 M.S.P.R. at 535-36. With regard to the inquiries on the merits, IRA appeals do not require the identification of particular management officials; disciplinary actions against management officials, on the other hand, require a showing that: (1) the management official against whom discipline is sought had the authority to take, recommend, or approve any personnel action; (2) the employee aggrieved by that management official made a disclosure protected under § 2302(b)(8); (3) the management official used his or her authority to take, or refuse to take, a personnel action against the aggrieved employee; and (4) the management official took, or failed to take, the personnel action against the aggrieved employee because of the protected disclosure. See id. at 535 (citation omitted). Finally, with regard to common sense, it is obviously necessary in a disciplinary action against a management official to focus on the identity of that particular management official. By contrast, an IRA appeal brought by a whistleblowing employee focuses on whether that employee suffered a prohibited personnel action, not on the identity of the specific management official(s) who took the action.


Footnote # 3 for 60 FLRA No. 45 - Opinion of Member Pope

   Section 7121(b)(2)(A) provides, in pertinent part:

The provisions of a negotiated grievance procedure providing for binding arbitration . . . shall, if or to the extent that an alleged prohibited personnel practice is involved, allow the arbitrator to order--
     (i) a stay of any personnel action in a manner similar to the manner described in section 1221(c) with respect to the [MSPB]; and
     (ii) the taking, by an agency, of any disciplinary action identified under section 1215(a)(3) that is otherwise within the authority of such agency to take.

Footnote # 4 for 60 FLRA No. 45 - Opinion of Member Pope

   I note that, although Whiteriver is not covered by the parties' grievance procedure, the Agency does not claim that this factor inhibited its ability to introduce evidence to support a finding of an alternative explanation for the revocation of the transfer offer. In fact, both the nurse executive and the personnel director from Whiteriver testified, and the Agency had the opportunity to fully cross-examine them. See Tr. at 202 et. seq.; id. at 212 et. seq.


Footnote # 5 for 60 FLRA No. 45 - Opinion of Member Pope

   I assume, without deciding, that the third Geyer factor is not met here because it is unclear whether the Gallup officials were "involved in the decision" to revoke the transfer within the meaning of Geyer. Nevertheless, I would conclude that the final WPA requirement has been satisfied because the other two Geyer factors have been met.


Footnote # 6 for 60 FLRA No. 45 - Opinion of Member Pope

   Although this provision refers to "consequential changes," it was intended to refer to "consequential damages." Bohac v. Dep't of Agric., 239 F.3d 1334, 1338-39 (Fed. Cir. 2001).


Footnote # 7 for 60 FLRA No. 45 - Opinion of Member Pope

   The Agency correctly argues that the Arbitrator failed to specify what was included in the $325,000 award of lost retirement benefits. The Union contends that this award includes contributions to the gri