NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
2006-3194
ROGELIO GOMEZ,
Petitioner,
v.
DEPARTMENT OF LABOR,
Respondent.
___________________________
DECIDED: August 14, 2006
___________________________
Before NEWMAN, RADER, and BRYSON, Circuit Judges.
PER CURIAM.
DECISION
Rogelio Gomez petitions for review of a decision of the Merit Systems Protection
Board, Docket No. DA-1221-05-0215-W-1, in which the Board denied his request for
corrective action in his individual right of action (“IRA”) appeal. We affirm.
BACKGROUND
Mr. Gomez was a probationary employee with the Occupational Safety and
Health Administration in the Department of Labor. He was removed from his position in
2002 during his probationary period for insubordination and failure to exercise good
judgment while conducting agency business. Mr. Gomez sought to appeal to the Merit
Systems Protection Board from the removal action, alleging that he was terminated
because he was a Methodist and because he was Hispanic. That appeal was
dismissed based on Mr. Gomez’s status as a probationary employee. Mr. Gomez also
filed a discrimination claim with the Department of Labor, alleging discrimination on the
same two grounds. After the agency found no discrimination, Mr. Gomez appealed that
determination to the Equal Employment Opportunity Commission, which rejected his
appeal.
Following the agency’s decision on his discrimination claim, Mr. Gomez filed a
complaint with the Office of Special Counsel, asserting for the first time that his
termination was in retaliation for whistleblowing activity. After the Office of Special
Counsel notified Mr. Gomez that it was terminating its inquiry into his complaint, he filed
the present IRA appeal with the Merit Systems Protection Board.
The administrative judge who was assigned to the case ruled that Mr. Gomez
had raised non-frivolous allegations of fact sufficient to warrant a hearing. In particular,
the administrative judge ruled that Mr. Gomez had made sufficient allegations that he
had made a protected disclosure and that his termination was in reprisal for that
disclosure. Accordingly, the administrative judge conducted a hearing to determine
whether the agency’s termination action was in fact in retaliation for protected
whistleblowing.
The evidence at the hearing showed that Mr. Gomez’s supervisor had instructed
him not to participate as a translator in a particular interview being conducted by a co-
worker because of concerns about placing Mr. Gomez in a situation in which he could
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potentially be accused of sexual harassment. Mr. Gomez, however, participated in the
interview anyway, in disregard of the instructions he was given. An investigation of the
incident revealed not only that Mr. Gomez had acted contrary to his supervisor’s
instructions, but also that on two other occasions, Mr. Gomez had engaged in
misconduct by making sexually suggestive remarks to a female co-worker and to a
female employee of a company that the agency was investigating. The agency decided
to terminate him based on those incidents. In response, Mr. Gomez contended that
during the investigation of his conduct he had complained about the behavior of the co-
worker who conducted the interview, claiming that she had acted improperly toward the
witness in the course of the interview. It was that complaint that he alleged was the
protected disclosure that resulted in his termination.
After the hearing, the administrative judge concluded that, even assuming Mr.
Gomez made a protected disclosure, the evidence “fails to support a conclusion that
this disclosure was a contributing factor in the agency’s decision to terminate his
employment during the probationary period.” Beyond that, the administrative judge
ruled, “the credible evidence overwhelmingly supports a conclusion that, under the
circumstances shown, the agency would have terminated this probationary employee,
even in the absence of this disclosure.”
DISCUSSION
In order to establish a prima facie case of retaliation for whistleblowing activity,
the appellant must show by a preponderance of the evidence that he made a protected
disclosure that was a contributing factor in the action being appealed. See 5 U.S.C.
§§ 1221(e)(1), 2302(b)(8); Frey v. Dep’t of Labor, 359 F.3d 1355, 1359 (Fed. Cir. 2004);
2006-3194 3
Briley v. Nat’l Archives & Records Admin., 236 F.3d 1373, 1378 (Fed. Cir. 2001). Even
if the appellant makes such a showing, no corrective action is required if “the agency
demonstrates by clear and convincing evidence that it would have taken the same
personnel action in the absence of [the protected] disclosure.” 5 U.S.C. § 1221(e)(2);
Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1322 (Fed. Cir. 1999); Ellison v. Merit Sys.
Prot. Bd., 7 F.3d 1031, 1034 (Fed. Cir. 1993).
In this case, the administrative judge, after conducting a hearing, found that Mr.
Gomez had failed to show that his alleged protected disclosure contributed to his
termination. That finding, which was supported by a detailed factual recitation and
credibility determinations by the administrative judge, is plainly supported by substantial
evidence. In addition, the administrative judge made the further finding that the
evidence clearly and convincingly showed that the agency would have taken the same
action against Mr. Gomez even in the absence of his asserted protected disclosure.
That finding, like the first, is supported by substantial evidence.
Although Mr. Gomez argues at length about the facts of the case, contending
that the administrative judge should not have found the facts against him, the standard
of review on an appeal from factual findings of the Board is a difficult one for an
appellant to overcome, especially when the Board’s findings are based on credibility
determinations. See King v. Dep’t of Health & Human Servs., 133 F.3d 1450, 1453
(Fed. Cir. 1998) (“an evaluation of witness credibility is within the discretion of the Board
and . . . such evaluations are ‘virtually unreviewable’”); Hayes v. Dep’t of the Navy, 727
F.2d 1535, 1537 (Fed. Cir. 1984) (Board’s factual findings must be upheld if “it has a
rational basis supported by substantial evidence from the record taken as a whole. The
2006-3194 4
record need only disclose such relevant evidence as might be accepted by a
reasonable mind as adequate to support the conclusion reached.”). We hold that Mr.
Gomez has failed to satisfy that exacting standard in this case, and we therefore sustain
the ruling of the Board rejecting his IRA appeal.
2006-3194 5