Opinion
No. C-00-04691 CRB
February 5, 2002
MEMORANDUM AND ORDER
This lawsuit arises from the Internal Revenue Service's demotion of plaintiff from a GS-15 position to a GS-14 position. The Court previously granted defendant's motions to dismiss in part. The claims remaining in the action consist of Rehabilitation Act disability discrimination and retaliation claims and a claim under the Civil Service Reform Act. Now before the Court is defendant's motion for summary judgment on the disability and retaliation claims, and the parties' cross-motions for summary judgment of the Civil Service Reform Act claim. After carefully considering the papers filed by the parties, and having had the benefit of oral argument, defendant's motion for summary judgment on the disability and retaliation claims is GRANTED, plaintiff's motion for summary judgment of the Civil Service Reform Act claim is DENIED, and defendant's cross-motion for summary judgment of the Civil Service claim is GRANTED.
BACKGROUND
Plaintiff was an Internal Revenue Service ("IRS") Collection Division Chief. In August 1997 plaintiff received a new work computer. Shortly thereafter a female computer technician went into plaintiff's office while plaintiff was not present to install new software. During the installation she discovered plaintiff's browser open to the Internet site "Tits of the Week;" the site displayed pictures of naked women. She reported what she found and thereafter would not enter plaintiff's office unless accompanied by another employee. The IRS referred the matter to the Department of Treasury's Office of Inspector General ("OIG") for investigation. In February 1998, pending the outcome of the investigation, the IRS detailed plaintiff to another regional office without loss of grade or pay.
1. The request for a reasonable accommodation
Plaintiff took sick leave beginning on June 22, 1998; he claimed, among other things, that the stress involving his job rendered him unable to work. The IRS subsequently asked plaintiff to submit medical documentation to substantiate his absence. By letter dated July 31, 1998, plaintiff designated his counsel, Mary Dryovage, as his "representative and attorney." He advised the IRS to contact his attorney about his "request for a reasonable accommodation." That same day plaintiff's counsel notified the IRS that plaintiff was requesting a reasonable accommodation. She asked for a one month extension to provide medical reports. The IRS honored the request.
On August 25, 1998, plaintiff's counsel advised the IRS that plaintiff's medical report would be available on August 28. She also stated that "[i]t is my understanding that he will be able to resume his former position, subject to certain medical restrictions." The IRS subsequently received a letter from plaintiff's physician, Dr. Ralph Fong. Dr. Long explained that from December 1997 through June 1998 plaintiff suffered from excessive stress, extreme fatigue, and the pressure related to his work. He opined that plaintiff's "only foreseeable return to his normal work would include a combination that decreases his stressors and anxiety provoking situations, eliminating to all possible extent any reassignments, unplanned extended absences from the home, and extensive air travel."
By letter dated August 28, 1998, plaintiff's counsel wrote the IRS to "confirm that Mr. Coon's physician has released him to return to his former job, with medical restrictions." The IRS then placed plaintiff on administrative leave for a few days so that the IRS could decide how to provide him with his requested accommodation. On September 2, 1998, the IRS advised plaintiff that in order to accommodate his restrictions, including no unplanned extended absences from the home and no excessive air travel, plaintiff had been detailed to a position in the Quality Program in San Francisco. The IRS also stated that since it was honoring plaintiff's request for an accommodation, there was no need to meet in person to discuss his request.
2. The IRA complaint
On December 6, 1998, plaintiff filed a complaint pursuant to the Whistleblowers Protection Act ("WPA") with the Office of Special Counsel. Plaintiff alleged that his February 1998 "detail" to the other Regional Office was the result of complaints he had made about IRS improprieties and his refusal to obey orders that would cause him to violate the law. He also cited as a "prohibited personnel action" the failure of the IRS to meet with him regarding his request for a reasonable accommodation. The Special Counsel found that further investigation was warranted. However, it did not issue corrective action within 120 days so plaintiff filed an Individual Right of Action ("IRA") appeal under the WPA with the Merit Systems Protection Board ("Merit Board" or "Board").
On August 26, 1999, a Merit Board Administrative Judge issued an initial decision dismissing plaintiff's IRA complaint on the ground that plaintiff had not alleged sufficient facts to support jurisdiction. Plaintiff petitioned the three-member Board to review the initial decision. On April 11, 2000, the Board held that plaintiff had made sufficient non-frivolous allegations to establish jurisdiction, and remanded plaintiff's IRA appeal to the Administrative Judge for discovery and jurisdictional hearings. On August 11, 2000. the Administrative Judge again dismissed the IRA complaint, this time without prejudice, on the ground that the complaint was intertwined with another action currently pending before the three-member Board. The order stated that as soon as the Board ruled in the other case the Administrative Judge would sua sponte reopen plaintiff's IRA appeal.
On November 16, 2000, the Merit Board denied plaintiff's petition for review of the Administrative Judge's August 11, 2000 decision. The Merit Board Order notified plaintiff of his right to appeal the decision to the Federal Circuit. Id. He did not do so.
3. The demotion complaint
In August 1999, the IRS demoted plaintiff to a GS-14 from a GS-15 ("the demotition"). Defendant gave two "reasons" for plaintiff's demotion: (1) plaintiff used his government computer for other than official business, and (2) plaintiff provided false statements in matters of official interest. Reason 1 was supported by 253 specifications, each alleging that plaintiff used a government desktop computer "to improperly access or attempt to access" a specific Internet address or addresses. Seven of the sites were sex sites, many more were stock quote sites. Reason 2 was supported by three specifications, each describing false statements that plaintiff allegedly made to investigators concerning his use of government computers.
Plaintiff appealed defendant's demotion decision to the Merit Board. He contested both charges and raised affirmative defenses of retaliation for whistleblowing, complaining to the OSC, filing an IRA appeal, and seeking a reasonable accommodation, as well as disability discrimination. After extensive discovery, including depositions, a Merit Board Administrative Judge ("AJ") held a hearing on December 17 and 20, 1999 and January 11 and 12, 2000. The AJ issued a 42-page opinion denying plaintiff's appeal on January 26, 2000. The AJ found that defendant had proved by a preponderance of evidence Reason 1 as to 34 specifications that pertain to Internet sites involving plaintiff's personal stock holdings and the seven sex sites, and two others sites which plaintiff admitted he accessed in order to conduct personal travel research for a colleague. He also found that defendant had proved by a preponderance of evidence two of the three Reason 2 specifications.
Plaintiff petitioned the three-member Board for review of the initial decision. On November 16, 2000 (the same day the Merit Board denied plaintiff's petition to review the initial decision dismissing the IRA appeal without prejudice), the Merit Board denied plaintiff's petition for review.
4. Plaintiff's district court complaints
Plaintiff commenced this action in December 2000, shortly after the Merit Board denied his IRA appeal and his demotion appeal. Defendant subsequently moved to dismiss the First Amended Complaint ("FAC") for lack of subject matter jurisdiction. The FAC included three claims: (1) unlawful reprisal in violation of the Whistleblower Protection Act. (2) unlawful discrimination based on disability, and (3) unlawful discrimination based on age. The FAC did not include a claim arising from the allegedly unlawful demotion. As the Court only had jurisdiction of claims arising from or related to the demotion, the Court dismissed the FAC with leave to amend. Plaintiff's Second Amended Complaint challenged the demotion and again made claims for disability discrimination and age discrimination. The Court dismissed the age discrimination claim for failure to exhaust administrative remedies, but allowed the case to go forward on the following claims: (1) that plaintiff was demoted in violation of the Civil Service Reform Act, and in particular, for his whistleblowing activities, (2) that plaintiff was demoted because of his disability, and (3) that plaintiff was demoted in retaliation for his requests for a reasonable accommodation.
5. The pending motions
Defendant now moves for summary judgment of plaintiff's disability discrimination and retaliation claims. Both parties have also filed cross-motions for summary judgment on plaintiff's civil service claim.
SUMMARY JUDGMENT STANDARD
Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party. and a dispute is "material" only if it could affect the outcome of the suit under governing law. See Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248-49 (1986). A principal purpose of the summary judgment procedure "is to isolate and dispose of factually unsupported claims " Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'"Matsushita Elec. Ind. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).
"In considering a motion for summary judgment, the court may not weigh the evidence or make credibility determinations, and is required to draw all reasonable inferences in a light most favorable to the non-moving party." Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). An inference may be drawn in favor of the non-moving party. however, only if the inference is "rational" or "reasonable" under the governing substantive law. See Matsushita, 477 U.S. at 588.
The Ninth Circuit "has set a high standard for the granting of summary judgment in employment discrimination cases." Schnidrig v. Columbia Machine, Inc., 80 F.3d 1406, 1410 (9th Cir. 1996). When a plaintiff "seeks to establish a prima facie case [of discrimination] through the submission of actual evidence, very little such evidence is necessary to raise a genuine issue of fact regarding an employer's motive; any indication of discriminatory motive . . . may suffice to raise a question that can only be resolved by a factfinder." Lowe v. City of Monrovia, 775 F.2d 998, 1009 (9th Cir. 1985). It is not a court's task, however, "to scour the record in search of a genuine issue of triable fact."Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (internal quotations omitted). Rather. a court is entitled to rely on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment. See id.
DISCUSSION
I. THE DISABILITY DISCRIMINATION CLAIM
The Rehabilitation Act prohibits employment discrimination solely on the basis of disability. See 29 U.S.C. § 794 (a). To survive summary judgment, plaintiff must present a prima facie case for disability discrimination by establishing that (1) he is a disabled person within the meaning of the Rehabilitation Act; (2) he is qualified, with or without a reasonable accommodation, to perform the essential functions of his job; and (3) he was discriminated against, here, demoted, because of his disability. See Bradley v. Harcourt. Brace and Co., 104 F.3d 267, 271 (9th Cir. 1996).
In 1992, Congress amended the Rehabilitation Act to incorporate the employment standards from Title I of the Americans With Disabilities Act ("ADA"). Seeee 29 U.S.C. § 794 (d). Therefore the same analysis applies to claims under both Acts. See Wong v. Regents of University of California, 192 F.3d 807, 822 n. 34 (9th Cir. 1999).
Plaintiff's claim that he was demoted because of his disability fails because the evidence in the record is insufficient to support a prima facie finding (1) that plaintiff was person with a disability within the meaning of the ADA and (2) he was demoted because of his disability or perceived disability.
A. Plaintiff Was Not A Person With A Disability
"A plaintiff in a [Rehabilitation Act] case bears the burden of proving disability within the meaning of the [Rehabilitation Act]." Thornton v. MeClatchy Newspapers, Inc., 261 F.3d 789, 794 (9th Cir. 2001). The Rehabilitation Act defines "disability" with respect to an individual as:
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102 (2). Thus, in order to be entitled to the protections of the Rehabilitation Act, plaintiff must have had an impairment, a record of such impairment, or have been regarded as having an impairment, that substantially limited his ability to engage in a major life activity. See Deppe v. United Airlines, 217 F.3d 1262, 1265 (9th Cir. 2000). The EEOC's implementing regulations define "substantially limits" as: (i) unable to perform a major life activity which the average person in the general population can perform, or (ii) significantly restricts the "condition, manner or duration" of performing such an activity. 29 C.F.R. § 1630.2 (j)(l)(i)(ii).
No reasonable trier of fact could find that plaintiff suffered from such an impairment: plaintiff's papers do not even identify what major life activity his "impairment" limited him from performing. Major life activities are functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. See 29 C.F.R. § 1630.2 (EEOC regulations). Plaintiff does not claim that he could not perform any of those functions.
Plaintiff does not claim — and could not claim — that his impairment precluded him from working. "With respect to working, `substantially limited' means that one is significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The regulations further specify that `the inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.'" Deppe, 217 F.3d at 1265. At the time of plaintiff's demotion he was working; his impairment did not preclude him from working in his particular job and there certainly is no evidence that it precluded him from working in a class of jobs or a broad range of jobs. In the Ninth Circuit, "a plaintiff must present specific evidence about relevant labor markets to defeat summary judgment on a claim of substantial limitation of `working.'" Thornton, 261 F.3d at 795; see also Duncan v. Washington Metro. Transit Auth., 240 F.3d 1110, 1115 (D.C. Cir. 2001) (en banc) ("[W]e hold that the ADA requires a plaintiff . . . to produce some evidence of the number and types of jobs in the local employment market in order to show that he is disqualified from a substantial class or broad range of such jobs.").
At oral argument plaintiff identified "travel" as the only major life activity which was substantially limited because of his impairment. The record reflects, however, that plaintiff was not precluded from travel, only that he was restricted from "extensive travel." Thus, even assuming travel is a major life activity, and plaintiff makes no argument and cites no caselaw to support such a proposition, no reasonable trier of fact could find that plaintiff was significantly limited in his ability to travel.
In the alternative, plaintiff argues that he had a record of having a disability, or was regarded by defendant as disabled. "There are two apparent ways in which individuals may fall within [the `regarded as disabled' provision of the ADA]: (1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities." Sutton v. United Air Lines, 527 U.S. 471, 489 (1999); see also Deppe, 217 F.3d at 1265 ("In `regarded as' cases, the employer must perceive the individual as having an actual disability under the [Rehabilitation Act.")
Again, plaintiff's evidence is wholly insufficient to support this claim. Plaintiff contends that "defendant admitted plaintiff was "regarded as having such an impairment when they sent him the letter dated July 24, 1999 suggesting that he would be qualified for disability retirement." Opposition at 9. The letter does not suggest that defendant regarded plaintiff as having an impairment that substantially limits one or more major life activities. In the letter the IRS states merely that plaintiff "may be eligible for disability retirement if [he is] unable, due to disease or injury, to render useful and efficient service in your position."
Defendant's knowledge of plaintiff's three-month medical leave of absence a year before the demotion is also insufficient to establish that defendant regarded plaintiff as disabled, that is, regarded him as having an impairment that substantially limited plaintiff's ability to work. First, there is no evidence that defendant regarded plaintiff as being unable to work; plaintiff in fact had been working for defendant since September 1998. Second. the fact that plaintiff's symptoms were so acute in June-August 1998 that he could not work does not mean that his impairment substantially limited his ability to work; the severity of the impairment was too short-lived to constitute a substantial limitation on his ability to work. See Sanders v. Arneson Products. Inc., 91 F.3d 1351, 1354 (9th Cir. 1996); Colwell v. Suffolk County Dep't, 158 F.3d 635, 646 (2nd Cir. 1998); Halperin v. Abacus Technology Corp., 128 F.3d 191, 200 (4th Cir. 1997). Third, plaintiff has not presented any specific evidence about relevant labor markets. See Thornton, 261 F.3d at 795. Accordingly, no reasonable trier of fact could find that defendant regarded plaintiff as substantially limited in the major life activity of working.
Plaintiff also did not have a record of a disability as a matter of law. Plaintiff does not cite any evidence to support this claim.
B. The Evidence Is Insufficient To Find That Plaintiff Was Demoted Because Of His Disability
Plaintiff's disability discrimination claim fails for a second, independent reason: the evidence is insufficient to permit a reasonable trier of fact to find that defendant demoted him because of his "disability." In other words, plaintiff has not identified evidence "adequate to create an inference" that defendant's demotion decision was based on discrimination. See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996). Instead, plaintiff boldly states, without support, that "motive is always a disputed issue of fact and not resolved under Rule 56 since it involves weighing of the evidence." Opposition at 11. Plaintiff is wrong. See. e.g., Koepping v. Tri-County Metropolitan Transp. Dist. of Oregon, 120 F.3d 998, 1006 (9th Cir. 1997) (affirming grant of summary judgment on ground evidence was insufficient to support claim that plaintiff was demoted because of his disability).
C. Reasonable Accommodation
Because the Court concludes that no reasonable trier of fact could find that plaintiff was disabled, the Court need not address plaintiff's reasonable accommodation argument. See Sanders v. Arneson Products. Inc., 91 F.3d 1351, 1353 (9th Cir. 1996). Even if plaintiff was covered by the Rehabilitation Act, however, plaintiff's reasonable accommodation argument would still fail.
Plaintiff first claims that when he requested an accommodation in July/August 1998 defendant failed to engage in the "interactive process" and thereby violated the Rehabilitation Act. This contention does not make sense. Plaintiff concedes that his request for an accommodation was honored when he returned to work in September 1998. His counsel stated in a letter to the IRS dated February 28, 2000, that plaintiff was given a reasonable accommodation in September 1998 and there is no evidence that his request for limited travel and unplanned absences was not accommodated at that time. The whole point of the requirement that an employer engage in the interactive process is to ensure that the employee's disability is accommodated if at all possible. An employer faces liability for a failure to engage in the interactive process in good faith, only if a reasonable accommodation would have been possible but was not given. See Barnett v. U.S. Air Inc., 228 F.3d 1105, 1116 (9th Cir. 2000). It follows then, that an employer cannot be liable for failing to engage in the interactive process if the employee was in fact reasonably accommodated. Plaintiff's second claim is that when he was demoted in August 1999 the IRS took away his reasonable accommodation. There is no evidence in the record, however, that he requested a reasonable accommodation at that time. Indeed, there is no evidence in the record that he could not perform the functions of the position to which he was demoted without a reasonable accommodation. Plaintiff identifies a February 2000 letter in which he complained that his new position might require him to travel as his request for a reasonable accommodation. That letter, however, was delivered two months after he filed this action with the Merit Board; thus, plaintiff did not as a matter of law exhaust his claim that he was denied a reasonable accommodation when he was demoted in August 1999.
A more fundamental problem with his claim is that "reasonable accommodation" has no relevance here since it is undisputed that plaintiff was qualified to perform the position from which he was demoted and the position to which he was demoted. See Cripe v. City of San Jose, 261 F.3d 877, 885 (9th Cir. 2001) (stating that if plaintiffs cannot perform the essential functions of the job the issue is whether there is a reasonable accommodation that will allow them to perform those functions); Humphrey v. Memorial Hospitals Ass'n, 239 F.3d 1128 (9th Cir. 2001) (discussing reasonable accommodation in the context of whether the plaintiff was qualified, that is, whether she could perform the essential functions of the job with a reasonable accommodation).
II. THE RETALIATION CLAIM
Plaintiff also contends that he was demoted in retaliation for his request for a reasonable accommodation. To make a prima facie case of retaliation a plaintiff must show "(1) involvement in a protected activity, (2) an adverse employment action and (3) a causal link between the two." Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000). "Thereafter, the burden of production shifts to the employer to present legitimate reasons for the adverse employment action. Once the employer carries this burden, plaintiff must demonstrate a genuine issue of material fact as to whether the reason advanced by the employer was a pretext. Only then does the case proceed beyond the summary judgment stage." Id.
Plaintiff has not satisfied his prima fade burden because he has not established a causal link between his demotion and his request for a reasonable accommodation. Plaintiff made his initial request for a reasonable accommodation in July/August 1998. Defendant granted him his request the next month. He filed his Office of Special Counsel complaint in December 1998. Defendant issued it notice of proposed suspension and demotion of plaintiff — based on the investigation begun in 1997 for the misuse of his computer in 1997 — in April 1999 and plaintiff was actually demoted in August 1999. The only reasonable inference from these facts is that plaintiff's request for a reasonable accommodation was wholly unrelated to the demotion; the investigation that led to the demotion was initiated almost a year before plaintiff even made his request for an accommodation. See Clark County School District v. Breeden, 532 U.S. 268, 121 S.Ct. 1508, 1511 (2001).
Plaintiff responds that the fact that the demotion was not proposed until nearly two years after the investigation commenced suggests that the demotion was in retaliation for the intervening reasonable accommodation request rather than as discipline for the computer infraction. Plaintiff's response, however, is mere speculation; he does not identify any evidence that suggests that defendant had completed the investigation before plaintiff's request for an accommodation, or that defendant had decided on some other more l lenient discipline but changed the proposed discipline after plaintiff requested his accommodation.
Plaintiff also argues that causation is established by the temporal proximity between his requests for accommodation and the demotion. See Miller v. Fairchild Industries. Inc., 797 F.2d 727, 731 (9th Cir. 1986). He then asserts that when defendant demoted plaintiff it took away the reasonable accommodation which defendant had granted to him a year earlier, and that this "elimination" of his accommodation demonstrates temporal proximity. The issue, however, is the temporal proximity to the request for a reasonable accommodation (December 1998 at the latest, when plaintiff filed his complaint with the OSC) and the adverse action (April 1999 at the earliest, the date of the proposal to demote plaintiff). Plaintiff cites no case that suggests that the four months that lapsed between the OSC complaint and the demotion proposal supports an inference that the demotion was in retaliation for his complaint. Indeed, the Supreme Court recently observed that
the cases that accept mere temporal proximity between an employer's acknowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be `very close.' See e.g., Richmond v. ONEOK. Inc., 120 F.3d 205, 209 (l0th Cir. 1997) (3-month period insufficient); Hughes v. Derwinski, 967 F.2d 1168, 1174-1175 (7th Cir. 1992) (4-month period insufficient).Clark County School District, 121 S.Ct. at 1510-11. As plaintiff has not met his prima facie burden of showing a causal link between his demotion and his reasonable accommodation request/complaint, plaintiff's retaliation claim cannot survive summary judgment.
III. THE CIVIL SERVICE REFORM ACT CLAIM
Plaintiff also appeals the Merit Board's denial of his appeal of his demotion. The Court has jurisdiction of this claim only because plaintiff also made related discrimination claims; otherwise, the Federal Circuit would have exclusive jurisdiction of the appeal. See 5 U.S.C. § 7703 (b)(1); Williams v. Department of the Army, 715 F.2d 1485, 1487 (Fed. Cir. 1983).
A. Standard of Review
The Court reviews the Merit Board's determination of the Civil Service Reform Act claim under a deferential standard pursuant to 5 U.S.C. § 7703 (c). See Langer v. Dep't of Treasury, 265 F.3d 1259, 1264 (Fed. Cir. 2001); Sloan v. West, 140 F.3d 1255, 1260 (9th Cir. 1998). The Court's review is limited to the administrative record and the decision of the Merit Board may be set aside only if it is "(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule. or regulation having been followed; or (3) unsupported by substantial evidence." 5 U.S.C. § 7703 (c); Langer, 265 F.3d at 1264; Sloan, 140 F.3d at 1260 n. 16. Plaintiff contends that the Merit Board's decision was not supported by substantial evidence and violated required procedures.
B. The Merit Board's Decision Is Supported By Substantial Evidence
The "substantial evidence" "test requires courts to defer as long as the record contains evidence from which one reasonably could draw the challenged inference — even though there is other evidence which, if believed, would permit the contrary inference." Campbell v. MSPB, 27 F.3d 1560, 1564 (Fed. Cir. 1993).
1. Reason 1
The Merit Board's finding that plaintiff accessed stock and sex-related Internet sites for personal rather than official business is supported by substantial evidence, including plaintiff's admission that he accessed at least some of the sex sites for non-government reasons. The finding that plaintiff's conduct was intentional, that is, he knew he was not supposed to use his work computer for such purposes, is also supported by substantial evidence, including the testimony of Ms. Conrad. Ms. Conrad testified that plaintiff had her delete hundreds of files, including some sex-related files, after she told him that people could see what he had been looking at. While plaintiff denied the charge, the AJ gave detailed, specific reasons why he credited Ms. Conrad. See Campbell, 27 F.3d at 1566 ("the trier is in a better position to make an overall assessment than a court of appeals, because demeanor evidence — invisible to us — ordinarily will be an important ingredient in the mix"). There was also evidence of an e-mail warning about non-business use and other directives and, of course, common sense.
2. Reason 2
The Merit Board found, based on the testimony of two investigators as well as their notes, that plaintiff lied by telling the agents under oath that he used his computer for government business only. In the second interview (the second specification) he admitted to accessing four different sex sites, but claimed that he did so as part of his official duties, in order to search possible tax collection actions. While plaintiff denied making these statements, the AJ gave detailed, specific reasons why he found the investigators and not plaintiff credible, including the fact that plaintiff had admitted to the first statement in his deposition. January 26, 2000 Opinion ("Opinion") at 18-23. Substantial evidence supports the Merit Board's finding.
3. The Whistleblower Affirmative Defense
The WPA provides that a government official may not
take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee . . . because of . . . any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences a violation of any law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.5 U.S.C. § 2302 (b)(8) (1994). To succeed in his whistleblower affirmative defense plaintiff had to prove four elements: (1) the acting official had the authority to take action with respect to plaintiff (2) plaintiff made a disclosure protected under the Whistleblower Act; (3) the acting official used his authority to take a personnel action against the plaintiff; (4) the acting official took the personnel action against the plaintiff because of the protected disclosure. See LaChance v. White Merit Systems Protection Board, 174 F.3d 1378, 1381 (Fed. Cir. 1999). Plaintiff has the burden of proving that protected disclosures were made. See id. The AJ never reached the last element — causation — because he found that plaintiff did not make any protected disclosures. Plaintiff contends the finding of no protected disclosures was not supported by substantial evidence.
To prove that a protected disclosure was made plaintiff must have established "`that: (1) he had a reasonable belief that his disclosure was protected under the WPA; and (2) he identified a "specific law, rule, or regulation that was violated.'"" Langer, 265 F.3d at 1266 (citation omitted). The test for whether an alleged whistleblower had a reasonable belief that his disclosure was protected is objective: the question is whether "a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee reasonably conclude that the actions of the government evidence" one of the types of wrongdoing described in section 2302(b)(8). See LaChance, 174 F.ed at 1381.
a. Taxpayer A
The Merit Board found that plaintiff's alleged disclosure to his supervisor on January 16, 1997 to the effect that he was going to refer the case of taxpayer "A" to the Inspection division was not a protected disclosure because it did not involve government misconduct. Plaintiff's complaint was about a former IRS attorney who was allegedly improperly intimidating IRS personnel and who, plaintiff believed, had violated conflict of interest laws. The AJ found that plaintiff had only disclosed his concern about the former employee's violation of the conflict of interest laws and therefore it was not a protected disclosure. This finding was supported by substantial evidence as described in pages 25-26 of the Opinion, including the testimony of two witnesses and a written memorandum describing plaintiff's referral to the Inspection Division. Plaintiff does not cite any case that suggests that disclosure of a conflict of interest by a former employee involves government misconduct. the disclosure of which is protected by the WPA.
Plaintiff also claims that he made a protected disclosure of a December 1995 incident concerning unauthorized disclosure of tax information by a Regional Counsel staff member in the taxpayer A case. Plaintiff, however, never identified "this disclosure" in his Merit Board appeal. Prior to the hearing, the AJ found that plaintiff's appeal form was inadequate with respect to his whistleblowing affirmative defense because the form "does not name the person(s) to whom the alleged disclosures were made, and states only that they were made at numerous meetings in 1997, to the Office of Inspector General in 1998, to the Office of Special Counsel in December 1998, and by filing an IRA Appeal with the MSPB in April 1999." MSPB Administrative Record at 439. The AJ therefore ordered plaintiff to file a declaration identifying the date, substance, and recipient of each allegedly protected disclosure. Id at 439-40. The AJ found plaintiff's response inadequate and ordered him to again submit a declaration providing the above information. Id. at 294. Plaintiff responded on October 25, 1999. He did not identify any 1995 incidents.Id. 1568-69. On November 29, 1999, the AJ issued an order identifying the issues in plaintiff's appeal, including his whistleblower affirmative defense; no disclosure about a 1995 incident is mentioned. Id. at 1764-70. Accordingly, an allegedly protected disclosure about a December 1 995 incident was not at issue in plaintiff's Merit Board appeal and therefore is not at issue in this Court's review of the Merit Board's resolution of that appeal.
b. Disclosures to newspapers
Plaintiff also claims that the AJ erred in finding that plaintiff's disclosures to newspapers were not protected disclosures. Plaintiff gave an interview to the San Jose Mercury News on April 27, 1999 during which he said that he had filed a whistleleblower complaint with the Office of Special Counsel concerning "the pressure to file favorable treatment to certain taxpayers." The interview resulted in a newspaper article that identified the taxpayers by name. He also gave an interview on June 9, 1999 to the New York Times about the same subject; the reporter called him after seeing the Mercury News article.
The Merit Board found that these disclosures were not protected because they were prohibited by law. A disclosure is protected by the WPA only insofar as it is "not specifically prohibited by law . . . ." 5 U.S.C. § 2302 (b)(8). The AJ found that the disclosures were prohibited by 26 U.S.C. § 6103 (b)(2), which essentially prohibits disclosure of any taxpayer return information, including whether the taxpayer's return was subject to investigation or processing. Although plaintiff did not name the taxpayers in his newspaper interviews, the AJ found, based on plaintiff's testimony, that he gave sufficient information to make it easy to identify the taxpayers and that he disclosed new information that had not previously been disclosed in the press. This finding is supported by substantial evidence.
In his reply, plaintiff argues that the AJ's finding was error because the AJ, and not the government, raised the issue of whether the disclosure to the newspaper was prohibited by law. He cites Putnam v. DHHS, 31 MSPR 427 (1986) and McKowen v. DLA, 10 MSPR 98, 100-101 (1982), for the proposition that "the AJ is not permitted to raise issues at the hearing sua sponte which were not raised by either party." These cases do not support the broad principle urged by plaintiff. Moreover, the AJ specifically advised the parties that he was considering the issue and he gave plaintiff the opportunity to submit a brief and evidence as to why the disclosure to the newspapers was lawful.
Plaintiff also argues for the first time in his reply that he made the same disclosures to the Office of Special Counsel and the Inspector General prior to the newspapers articles and that those disclosures were protected disclosures that did not evaporate simply because he later disclosed the same information to the newspapers.
The AJ specifically found that plaintiff's statements to Inspector General investigators Ken Sipes and Michael Isenberg did not disclose specific wrongdoing by any specific person and were too conclusory to constitute a disclosure protected under the WPA. See Opinion at 31-32 (citing Special Counsel v. Spears, M.S.P.R. 639, 656-57 (1997); Padilla v. Department of the Air Force, 55 M.S.P.R. 540, 543-44 (1992)). This finding was based on substantial evidence, namely, plaintiff's own testimony.
Plaintiff's OSC complaint is protected under 5 U.S.C. § 2302 (b)(9) rather than section 2302(b)(8); thus, there was no need for the AJ to address whether plaintiff's OSC complaint constituted a protected "disclosure" under section 2302(b)(8). Instead, the AJ assumed the OSC complaint qualified as protected activity, pursuant to section 2302(b)(9) and specifically considered whether plaintiff's demotion was in retaliation for, among other things, plaintiff's OSC complaint. The AJ found that plaintiff had not established a genuine nexus between the filing of the complaint and his demotion. Opinion at 36-37.
C. The Merit Board Did Not Commit Legal Error
Plaintiff also claims the AJ erred by finding that plaintiff's due process rights were not violated. In Stone v. FDIC, 179 F.3d 1368 (Fed. Cir. 1999), the Federal Circuit held that if the Merit Board finds "new and material information has been received by the deciding official by means of ex parte communications, then a due process violation has occurred and the former employee is entitled to a new constitutionally correct removal procedure." Id. at 1377. The court explained:
In deciding whether new and material information has been introduced by means of ex parte contacts, the Board should consider the facts and circumstances of each particular case. Among the factors that will be useful for the Board to weigh are: whether the ex parte communication merely introduces "cumulative" information or new information; whether the employee knew of the error and had a chance to respond to it; and whether the ex parte communications were of the type likely to result in undue pressure upon the deciding official to rule in a particular manner. Ultimately, the inquiry of the Board is whether the ex parte communication is so substantial and so likely to cause prejudice that no employee can fairly be required to be subjected to a deprivation of property under such circumstances.Id. Plaintiff claims the rule of Stone was violated in two instances: (1) defendant did not timely provide him with a summary of the Office of Inspector General Report of Investigation ("OIG ROI"), and (2) defendant did not provide him with a list of comparative discipline cases provided to the deciding official.
After the first day of testimony before the AJ, the AJ sua sponte raised the issue of whether a Stone violation occurred because the deciding official received information ex parte in the form of a summary of the agency's evidence; the summary had not been timely provided to plaintiff. Opinion at 4 n. 11. After ordering defendant to respond to a show cause order, the AJ found that no due process violation occurred because "the document in question merely summarized information of which [plaintiff] had due notice, and did not provide any new and material information." Id.; see also Stone, 179 F.3d at 1377 (stating that due process is not violated when the infornmtion provided is merely cumulative). The AJ also found that the deciding official did not review the summary before making his final disciplinary decision. Plaintiff has failed to identify any law or evidence that suggests the AJ's finding was somehow in err. His speculation that the summary might have included exculpatory evidence is insufficient to overcome the AJ's finding that it did not.
Plaintiff also complains that he was not provided with a comparable disciplinary/adverse action history that was provided to the decisionmaker. He raised this issue for the first time on the second day of the hearing before the AJ. The AJ held that plaintiff's objection was untimely and therefore abandoned. Opinion at 4 n. 11. The AJ also held that if he were to rule on the merits, he would find that plaintiff's due process rights were not violated for the reasons set forth in defendant's response to the Order To Show Cause.
The Court reviews the AJ's finding that the comparable disciplinary history issue was not timely raised for an abuse of discretion. See Spezzaferro v. F.A.A., 807 F.2d 169, 173 (Fed. Cir. 1986). Plaintiff has not demonstrated that the AJ abused his discretion, in particular, he has not shown that he could not have raised the issue earlier in light of the fact that he was provided with the document nearly a month before the hearing commenced. Moreover, he also has not shown that the comparative history is new and material information likely to cause prejudice such that its disclosure to the deciding official violated plaintiff's due process rights. See Stone, 179 F.3d at 1376.
Plaintiff's other legal arguments are also without merit. In particular, the AJ did not abuse his discretion in denying plaintiff's discovery motions, see Spezzafrferro, 807 F.2d at 173, and plaintiff's contention that defendant violated an unidentified "180-day" rule is not supported by citation to such a rule, law, or facts.
CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment of plaintiff's disability discrimination and retaliation claims is GRANTED; plaintiff's motion for summary judgment of his Civil Service Reform Act claim is DENIED; and defendant's cross-motion for summary judgment of the Civil Service Reform Act is GRANTED.
IT IS SO ORDERED.