NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GREGORY MCINNIS,
Petitioner
v.
DEPARTMENT OF EDUCATION,
Respondent
______________________
2016-2652
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-0752-14-0518-I-1.
______________________
Decided: February 8, 2017
______________________
GREGORY MCINNIS, Gary, IN, pro se.
JOSEPH ASHMAN, Commercial Litigation Branch, Civil
Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., PATRICIA
M. MCCARTHY.
______________________
Before NEWMAN, MAYER, and O’MALLEY, Circuit
Judges.
2 MCINNIS v. EDUCATION
PER CURIAM.
Gregory McInnis appeals a final order of the Merit
Systems Protection Board (“board”) denying his petition
for review of an initial decision upholding his removal
from the federal service. See McInnis v. Dep’t of Educ.,
No. CH-0752-14-0518-I-1, 2016 MSPB LEXIS 4233 (July
20, 2016) (“Final Order”); McInnis v. Dep’t of Educ., No.
CH-0752-14-0518-I-1, 2016 MSPB LEXIS 768 (Feb. 11,
2016) (“Initial Decision”). For the reasons discussed
below, we affirm.
BACKGROUND
McInnis was employed as an Institutional Review
Specialist by the Department of Education (“agency” or
“Education Department”). He worked in the agency’s
Federal Student Aid Office (“FSA”). In January 2011,
McInnis was suspended for fourteen days for failure to
follow supervisory instructions, failure to follow
established work procedures, and failure to take
appropriate action. In September 2011, McInnis received
counseling for failure to comply with time and attendance
procedures and was placed in a restricted leave status.
On December 12, 2012, he was suspended for thirty days
for being absent without leave and for failure to comply
with established time and attendance procedures.
Effective January 24, 2014, the agency removed
McInnis from his position based on charges of: (1) absence
without approved leave; (2) failure to follow established
leave procedures; and (3) failure to follow instructions.
The agency alleged that on forty-seven occasions, in the
period between December 2012 and August 2013, McInnis
did not report to work for part of the day, left work early,
or did not report to work at all, and that he had not
obtained advanced approval for his absences. In addition,
the agency asserted that McInnis failed to follow
established leave procedures and failed to follow
instructions by not timely completing required security
MCINNIS v. EDUCATION 3
training and not properly initiating procedures for a
security breach incident. See Final Order, 2016 MSPB
LEXIS 4233, at *3–4.
McInnis appealed his removal to the board, asserting
that the agency lacked any appropriate basis for removing
him. He further contended that the agency removed him
in reprisal for protected whistleblowing activity.
Specifically, McInnis asserted that the agency retaliated
against him for disclosures he made to several agency
employees, including FSA Chief Operating Officer
William Taggert, about problems with the agency’s
contract with Perot Systems Corp. (“Perot”). See Initial
Decision, 2016 MSPB LEXIS 768, at *40. According to
McInnis, he told agency officials that he was an end-user
of a Perot platform designed to integrate various software
programs, and that he had observed problems and delays
associated with the implementation of the Perot system.
Id. at *40–41. McInnis also alleged that he was removed
because he had complained about his supervisor’s
treatment of women, and that his removal violated the
Uniformed Services Employment and Reemployment
Rights Act of 1994 (“USERRA”). See 38 U.S.C. §§ 4301–
33.
On February 11, 2016, an administrative judge
issued an initial decision upholding the agency’s decision
to remove McInnis from the federal service. The
administrative judge concluded that the Education
Department had proved its charges against McInnis by a
preponderance of the evidence, sustaining forty-four of the
forty-seven allegations of absence without leave, fifty-
seven of the sixty-one allegations of failure to follow
appropriate leave procedures, and both allegations of
failure to follow supervisory instructions. The
administrative judge further concluded that McInnis did
not make any disclosures protected by the Whistleblower
Protection Act (“WPA”), 5 U.S.C. § 2302(b)(8), and that
even if he had made any protected disclosures, there was
4 MCINNIS v. EDUCATION
no showing that they were a “contributing factor” in the
agency’s decision to remove him from his position. Initial
Decision, 2016 MSPB LEXIS 768, at *47. The
administrative judge determined, moreover, that the
agency had established, by clear and convincing evidence,
that it would have removed McInnis in the absence of the
alleged protected disclosures. Id. at *48–50.
The administrative judge also rejected McInnis’ claim
that he was removed in reprisal for allegedly making
complaints that his supervisor had treated women
improperly. See id. at *51–53. The administrative judge
explained that McInnis did not show that he made a
protected sex discrimination complaint and that even if he
had, there was no evidence that agency officials were
aware of any such complaint when they proposed his
removal. See id. at *52–53. In addition, the
administrative judge determined that McInnis had not
demonstrated that the agency’s removal action violated
USERRA, explaining that McInnis had “not contended
that any adverse actions were taken due to the obligation
or performance of military duty.” Id. at *60. Finally, the
administrative judge concluded that the agency’s decision
to impose the penalty of removal was appropriate given
the serious nature of McInnis’ misconduct and his
“significant past disciplinary history.” Id. at *63.
McInnis then appealed to the board. On July 20,
2016, the board upheld the agency’s removal action and
adopted the administrative judge’s initial decision as the
board’s final decision. The board refused to consider
McInnis’ argument that the agency improperly issued his
removal letter outside of the time period specified in the
governing collective bargaining agreement, explaining
that he had waived that argument by failing to raise it
before the administrative judge. See Final Order, 2016
MSPB LEXIS 4233, at *11–13. The board determined,
moreover, that the record did not support McInnis’
whistleblower affirmative defense because there was no
MCINNIS v. EDUCATION 5
credible evidence that he made any disclosure protected
under the WPA. Id. at *18 (explaining that McInnis
lacked sufficient “knowledge about the [Perot] contract’s
terms and conditions, payments made by [the agency],
negotiations concerning performance, or any other
relevant circumstances pertaining to the agreement with
[Perot]”). McInnis then appealed to this court.
DISCUSSION
Our review of a decision of the board is circumscribed
by statute. We can set such a decision 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); see Welshans v. USPS, 550
F.3d 1100, 1102 (Fed. Cir. 2008). “Substantial evidence is
more than a mere scintilla of evidence, but less than the
weight of the evidence.” Jones v. HHS, 834 F.3d 1361,
1366 (Fed. Cir. 2016) (citations and internal quotation
marks omitted); see also Dickinson v. Zurko, 527 U.S. 150,
162 (1999).
On appeal, McInnis asserts that the board erred when
it “determin[ed] that the [absent without leave] charges
were supported by fact.” We disagree. In an
exceptionally thorough opinion, the administrative judge
carefully considered the evidence of record and
determined that the agency had established, by a
preponderance of the evidence, that McInnis was absent
without leave on at least forty-four separate occasions
between December 20, 2012, and August 22, 2013. See
Initial Decision, 2016 MSPB LEXIS 768, at *10–23. The
agency submitted “extensive documentation” to buttress
its claim that McInnis was repeatedly absent from his
position without prior agency approval. Id. at *13. On
appeal, McInnis makes conclusory assertions that the
board erred in determining that he was repeatedly absent
6 MCINNIS v. EDUCATION
from his position without leave, but he fails to point to
any credible evidence supporting his contentions. See
Harris v. Dep’t of Veterans Affairs, 142 F.3d 1463, 1467
(Fed. Cir. 1998) (explaining that “[t]he petitioner bears
the burden of establishing error in the Board’s decision”).
McInnis further asserts that his removal action
should be set aside because the Education Department
did not issue the letter removing him from his position
within the time period specified in the governing
collective bargaining agreement. The board held that
McInnis waived this argument by failing to present it to
the administrative judge. See Final Order, 2016 MSPB
LEXIS 4233, at *12; see also Meglio v. Merit Sys. Prot.
Bd., 758 F.2d 1576, 1577 (Fed. Cir. 1984). Even if
McInnis did not waive this argument, he points to no
evidence suggesting that the agency’s alleged procedural
error was harmful. See 5 U.S.C. § 7701(c)(2)(A) (providing
that the board cannot sustain an agency decision if the
employee “shows harmful error in the application of the
agency’s procedures in arriving at such decision”); Ward v.
USPS, 634 F.3d 1274, 1281 (Fed. Cir. 2011) (emphasizing
that the board is “required to run a harmless error
analysis to determine whether [a] procedural error
require[s] reversal”): Diaz v. Dep’t of the Air Force, 63
F.3d 1107, 1109 (Fed. Cir. 1995) (“[W]e have previously
held that an employee challenging an agency action has
the burden to prove that a violation of a statutory
procedure was harmful.”).
McInnis also contends that the board incorrectly
sustained the agency’s failure to follow supervisory
instructions charge because he did, in fact, complete the
cybersecurity training his supervisor instructed him to
complete. As the administrative judge correctly
determined, however, McInnis was instructed not only to
complete mandatory training but also to notify his
supervisor that the training had been completed. See
Initial Decision, 2016 MSPB LEXIS 768, at *32–34. On
MCINNIS v. EDUCATION 7
appeal, McInnis identifies no credible evidence supporting
his assertion that he completed the required security
training and notified his supervisor that he had done so.
See Final Order, 2016 MSPB LEXIS 4233, at *16
(“Although [McInnis] argues on review that he did notify
his supervisor that he had completed the training, he
submitted no evidence in support of his claim. The
agency, on the other hand, submitted notice of the
training requirement, various reminders, specific
notification of the due date, and an email showing
[McInnis] as one of several employees who had not yet
completed the training.” (footnote and citations omitted)).
We also reject McInnis’ challenge to the board’s
determination that he failed to establish, by a
preponderance of the evidence, that the agency removed
him in reprisal for protected whistleblowing activity. To
support a whistleblowing defense, McInnis was required
to demonstrate that a protected disclosure was a
“contributing factor” in the agency’s decision to remove
him from his position. 5 U.S.C. § 1221(e); see Johnston v.
Merit Sys. Prot. Bd., 518 F.3d 905, 909 (Fed. Cir. 2008).
Approximately four years elapsed between the time
McInnis made the alleged whistleblowing disclosures to
his supervisor, Earl Flurkey, and the time Flurkey
proposed McInnis’ removal. See Initial Decision, 2016
MSPB LEXIS 768, at *46–47. Both Flurkey and Ronald
Bennett, the agency official who sustained the charges
against McInnis and decided to remove him from his
position, testified that McInnis’ alleged whistleblowing
had no effect on the removal decision. Id. at *45. McInnis
fails to demonstrate any error in the administrative
judge’s decision to credit this testimony. See Anderson v.
City of Bessemer City, 470 U.S. 564, 575 (1985) (“[W]hen a
trial judge’s finding is based on his decision to credit the
testimony of one of two or more witnesses, each of whom
has told a coherent and facially plausible story that is not
contradicted by extrinsic evidence, that finding, if not
8 MCINNIS v. EDUCATION
internally inconsistent, can virtually never be clear error.”
(citations omitted)). Furthermore, as the administrative
judge correctly determined, nothing in the record
“demonstrate[d] a strong retaliatory motive on the part of
the agency officials who were involved in the [removal]
decision,” as McInnis never alleged that either Flurkey or
Bennett “engaged in any specific misdeeds in connection
with the Perot . . . contract.” Initial Decision, 2016 MSPB
LEXIS 768, at *49. Nor does McInnis show any error in
the administrative judge’s determination that the agency
demonstrated, by clear and convincing evidence, that it
would have removed McInnis from his position even in
the absence of the alleged disclosures. See 5 U.S.C.
§ 1221(e)(2); Chambers v. Dep’t of the Interior, 602 F.3d
1370, 1376 (Fed. Cir. 2010) (explaining that there is “no
violation of the WPA if the agency can prove by clear and
convincing evidence that it would have taken the same
personnel action(s) in the absence of the protected
disclosure”).
CONCLUSION
We have considered McInnis’ remaining arguments
but do not find them persuasive. Accordingly, the final
order of the Merit Systems Protection Board is affirmed.
AFFIRMED