Appealed from: Merit Systems Protection Board
Before Lourie, Circuit Judge, Smith, Senior Circuit Judge, and Rader, Circuit Judge.
The Merit Systems Protection Board (Board) disciplined Mr. Frank Eidmann for violating 5 U.S.C. § 2302(b)(8) (Supp. II 1990), the Whistleblower Protection Act of 1989 (WPA), Pub. L. No. 101-12, 103 Stat. 16 (1989). Special Counsel v. Eidmann, 49 M.S.P.R. 614 (1991). Because the record shows that Mr. Eidmann retaliated against Mr. Andrew Levin for protected whistleblowing, this court affirms.
Mr. Eidmann was a GS-11 Administrative Officer with the Farmers Home Administration (FmHA), an agency of the Department of Agriculture, at Holly Hills, New Jersey. As part of his overall management responsibilities, Mr. Eidmann counselled employees on their rights, benefits, and duties. Mr. Eidmann reported directly to the agency's state director, Mr. Gouryeb.
Mr. Levin, the victim of Mr. Eidmann's reprisal, began his employment as Assistant County Supervisor at the FmHA's Woodstown, New Jersey office on May 23, 1988. Mr. Levin was a probationary employee at the time of the reprisal.
Mr. Levin's duties required him to spend one to two hours each day in the general clerical area of the Woodstown office. On June 13, 1988, one of the other Woodstown office employees announced her intention to smoke in the general clerical area. Mr. Levin protested. An argument ensued, but resolved nothing. Mr. Levin tried, without success, to resolve the dispute with the acting office head.
On June 20, 1988, Mr. Levin telephoned Mr. Eidmann at FmHA's New Jersey headquarters. Mr. Levin complained about smoking in a common work area. Mr. Eidmann disagreed with Mr. Levin's interpretation of the agency smoking regulations. Mr. Eidmann felt that, under the circumstances, the regulations allowed smoking in the general clerical area. On June 22, Mr. Eidmann sent Mr. Levin a letter to this effect, which also advised that a new employee could not afford to focus on "matters unrelated to the duties of [his] position." Eidmann, 49 M.S.P.R. at 617-18.
On June 24, 1988, Mr. Levin wrote to the agency's health and safety officer, Mr. Pope. Mr. Levin told Mr. Pope of the Woodstown office smoking situation. Mr. Levin felt this situation conflicted with agency health regulations.
On July 21, 1988, Mr. Levin informed his union vice president, Mr. Evans, of the problem at the Woodstown office. That same day, Mr. Evans conveyed Mr. Levin's complaints to Mr. Eidmann. Mr. Eidmann maintained that the Woodstown smoking situation did not violate agency policy. On August 3, 1988, Mr. Levin again asked Mr. Pope to intervene in the Woodstown office affair.
In early August, 1988, Mr. Eidmann and Mr. Gouryeb jointly drafted a termination letter to Mr. Levin. Mr. Eidmann and Mr. Gouryeb planned to deliver the letter to Mr. Levin on August 15. Mr. Levin's immediate supervisors, however, persuaded them to reconsider. These supervisors felt Mr. Levin's performance was satisfactory and his complaints about the smoking policy did not warrant dismissal.
On August 15, 1988, Mr. Eidmann, having decided to merely counsel Mr. Levin, met with him and one of his supervisors. At this meeting, Mr. Eidmann learned that Mr. Levin had taken his complaint outside of the agency's New Jersey office to Mr. Pope. Mr. Levin also vowed to pursue resolution of the smoking matter.
Mr. Eidmann immediately informed Mr. Gouryeb of Mr. Levin's statements and recommended dismissal. Mr. Eidmann delivered a termination letter to Mr. Levin on August 23, 1988. Mr. Levin filed a complaint with the Office of Special Counsel (OSC). The FmHA rescinded Levin's termination on September 28, 1988. In October 1988, Mr. Gouryeb left the FmHA and took a position in the private sector. Because he is no longer a Government employee, Mr. Gouryeb is not subject to this action.
On November 15, 1988, a representative of the OSC interviewed Mr. Eidmann. On January 19, 1990, the OSC filed a complaint for disciplinary action against Mr. Eidmann. The complaint charged Eidmann with violating 5 U.S.C. § 2302(b)(8). The Board's chief administrative law Judge applied section 2302(b)(8) of the Civil Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454, § 101, 92 Stat. 1111, 1114-16 (codified at 5 U.S.C. § 2302(b)(8) (1988), prior to the 1989 amendment). The chief administrative law Judge found that Mr. Eidmann retaliated against Mr. Levin for protected whistleblowing. The chief administrative law Judge demoted Mr. Eidmann two grades for two years. The Board adopted this decision. The Board, however, applied section 2302(b)(8) of the WPA, not the CSRA.
Title 5 sets forth this court's standard for reviewing Board decisions. This court upholds a Board decision unless "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without [following] procedures required by law, rule, or regulation . . . or unsupported by substantial evidence . . . ." 5 U.S.C. § 7703(c) (1988).
This court must first consider whether the Board correctly applied the WPA, rather than the CSRA. Congress originally enacted 5 U.S.C. § 2302(b)(8) in 1978 as part of the CSRA. In enacting the WPA in 1989, Congress amended various sections of the CSRA, including § 2302(b)(8). Although beginning its investigation of Mr. Eidmann in 1988, OSC brought no complaint against him until 1990. This court must therefore determine whether the WPA or the CSRA version of section 2302 governs this case.
The WPA contains a provision stating when it applies:
No provision of this Act . . . shall affect any administrative proceeding pending at the time such provisions take effect. Orders shall be issued in such proceedings, and appeals shall be ...