Keys v. Hud

Case: 21-2072 Document: 39 Page: 1 Filed: 03/09/2022

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

JAMES L. KEYS,
Petitioner

v.

DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT,
Respondent
______________________

2021-2072
______________________

Petition for review of the Merit Systems Protection
Board in No. DC-1221-19-0150-M-1.
______________________

Decided: March 9, 2022
______________________

JAMES L. KEYS, Hanover, MD, pro se.

TANYA KOENIG, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by BRIAN M.
BOYNTON, CLAUDIA BURKE, MARTIN F. HOCKEY, JR.
______________________

Before NEWMAN, LOURIE, and TARANTO, Circuit Judges.
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2 KEYS v. HUD

PER CURIAM.
James L. Keys resigned from his job with the United
States Department of Housing and Urban Development
(HUD, or agency) after being reassigned from one position
to another. He later filed an appeal with the Merit Systems
Protection Board alleging, as now relevant, that the reas-
signment was an act of reprisal by HUD for whistleblowing
on his part. In the decision now before us, the Board, after
a hearing, denied the reprisal claim on three grounds: the
asserted disclosure (the basis for the whistleblowing re-
prisal claim) was not a protected one; even if it was, Mr.
Keys had not shown that the disclosure was a contributing
factor in his reassignment; and even if he had made that
showing, the agency had carried its burden to demonstrate
that it would have reassigned Mr. Keys in the absence of
the disclosure. Keys v. Dep’t of Hous. & Urban Dev., No.
DC-1221-19-0150-M-1, 2021 WL 1081710 (M.S.P.B. Mar.
19, 2021) (Board Op.). We affirm, finding no error in the
final ground, which suffices to support the Board’s ruling.
I
Mr. Keys joined HUD in 2001 and worked in various
positions over the years. In 2011, he began serving as a
Discrimination Complaint Manager in HUD’s Office of
Field Policy Management. He soon filed an Equal Employ-
ment Opportunity (EEO) complaint, in which he alleged,
among other things, that his then-supervisor failed to pro-
vide him a description of his position or a performance
plan. In December 2011, after resolution of the complaint,
Mr. Keys was reassigned to work under a different super-
visor, Nelson Bregón. Mr. Keys’s title within the Office of
Field Policy Management remained unchanged.
In early 2012, Mr. Keys filed a second EEO complaint,
in which he alleged that he received a less-than-perfect
performance rating for Fiscal Year 2011 in retaliation for
his first EEO complaint. The Equal Employment Oppor-
tunity Commission ruled against Mr. Keys, who then
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KEYS v. HUD 3

brought suit in the U.S. District Court for the District of
Columbia under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., alleging that the agency subjected
him to illegal discrimination as well as retaliation for his
prior claims of discrimination. Keys v. Donovan, 107 F.
Supp. 3d 62 (D.D.C. 2015) (District Court Op.). On January
26, 2015, in response to the agency’s motion for summary
judgment in the district court case, Mr. Keys accused Mr.
Bregón and other unnamed senior agency officials of lying
under oath. See Board Op. at 4; Plaintiff’s Opposition to
Motion to Dismiss or Summary Judgment at 7, Keys v. Do-
novan, No. 1:13-cv-1469-JEB (D.D.C. Jan. 26, 2015), ECF
No. 30.
Just over a week later, on February 5, 2015, Mr.
Bregón informed Mr. Keys that he was being reassigned to
a new division within HUD, where he would have a new
supervisor, Ms. Morales-Romero. Mr. Keys’s position title
would remain unchanged. The following month, on March
21, 2015, Mr. Keys resigned from HUD.
Two days after his resignation, Mr. Keys filed an ad-
verse action appeal with the Board under 5 U.S.C. §§ 7511–
13, claiming that his resignation was involuntary and thus
a constructive removal. See Board Op. at 5. The adminis-
trative judge assigned by the Board dismissed the appeal
for lack of jurisdiction, finding that Mr. Keys had failed to
make a nonfrivolous allegation that his resignation was in-
voluntary. Keys v. Dep’t of Hous. & Urban Dev., No. 0752-
15-0531-I-1, 2015 MSPB LEXIS 3088 (M.S.P.B. Apr. 14,
2015). The decision became the Board’s final decision in
May 2015. The next month, the district court in Mr. Keys’s
Title VII case granted summary judgment against Mr.
Keys. District Court Op. at 63–64.
In July 2018, Mr. Keys filed a whistleblower retaliation
complaint with the Office of Special Counsel (OSC), pursu-
ant to 5 U.S.C. § 1214(a)(1)(A), seeking corrective action for
alleged “prohibited personnel practices” by HUD—
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4 KEYS v. HUD

specifically, retaliation for whistleblowing in violation of
the Whistleblower Protection Act, codified as relevant at 5
U.S.C. § 2302(b)(8), (9). He asserted that his 2015 reas-
signment within HUD had been in reprisal for a protected
disclosure, identifying the protected disclosure as his state-
ment to the district court that Mr. Bregón had lied under
oath, and alleging that Mr. Bregón reassigned him because
of that statement. Mr. Keys further alleged that his reas-
signment was improper for other reasons—specifically, the
agency lacked an approved vacancy in the office to which
he was reassigned, and the agency did not follow applicable
regulations when it reassigned him from a bargaining unit
position to a non-bargaining unit position. OSC closed its
investigation without action.
In November 2018, Mr. Keys filed an individual right
of action (IRA) appeal with the Board under 5 U.S.C.
§§ 1214(a)(3), 1221, pressing his whistleblower reprisal
challenge and seeking corrective action. The Board dis-
missed that challenge for lack of jurisdiction, but we re-
versed the dismissal and sent it back to the Board for
further proceedings. See Keys v. Merit Sys. Prot. Bd., 798
F. App’x 636, 637 (Fed. Cir. 2020). On remand, after hold-
ing an evidentiary hearing, the administrative judge re-
jected Mr. Keys’s challenge for three independent reasons.
First, the administrative judge determined that Mr.
Keys failed to prove that his accusation about Mr. Bregón
in the district court was a disclosure protected by the rele-
vant provisions of the Whistleblower Protection Act, as
amended. Board Op. at 7–12. The administrative judge
rested that conclusion on the limitations of whistleblower
protection where EEO complaints are concerned and the
fact that Mr. Keys’s disclosure was made during his EEO
litigation and related to issues underlying his EEO com-
plaint. Id. at 10.
Second, the administrative judge found that, even if
Mr. Keys’s accusation against Mr. Bregón was a protected
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KEYS v. HUD 5

disclosure, Mr. Keys could not prove by a preponderance of
the evidence that it was a contributing factor in his reas-
signment. Id. at 12. Mr. Keys alleged that Mr. Bregón re-
assigned him in retaliation for that accusation, but the
administrative judge found that Mr. Keys did not prove
that Mr. Bregón even knew of the accusation at the time of
Mr. Keys’s reassignment. Id. at 15–18.
Third, the administrative judge found that, even if Mr.
Keys made a protected disclosure that contributed to his
reassignment, the agency carried its burden to demon-
strate by clear and convincing evidence that it would have
reassigned Mr. Keys regardless. Id. at 19. The adminis-
trative judge analyzed the record under the factors we out-
lined in Carr v. Social Security Administration, 185 F.3d
1318, 1323 (Fed. Cir. 1999), and found that Mr. Keys would
have been reassigned even if he had not made the identi-
fied disclosure. Board Op. at 25.
The administrative judge’s decision became the final
decision of the Board on April 23, 2021. Mr. Keys timely
appealed. 5 U.S.C. § 7703(b)(1)(A). We have jurisdiction
under 28 U.S.C. § 1295(a)(9).
II
We must affirm the Board’s decision unless it is “(1) ar-
bitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed, or
(3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c).
A
To prevail on the merits of his IRA appeal, Mr. Keys
had to prove by a preponderance of the evidence that he
made a protected disclosure under 5 U.S.C. § 2302(b)(8) or
2302(b)(9)(A)(i), (B), (C), or (D). See 5 U.S.C. § 1221(a);
Young v. Merit Sys. Prot. Bd., 961 F.3d 1323, 1329 (Fed.
Cir. 2020); Ellison v. Merit Sys. Prot. Bd., 7 F.3d 1031, 1034
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6 KEYS v. HUD

(Fed. Cir. 1993). For purposes of an IRA appeal to the
Board, while protected disclosures include the exercise of
an appeal, complaint, or grievance right that itself relates
to whistleblowing, 5 U.S.C. § 2302(b)(9)(A)(i), (b)(8), we
have held that certain other non-whistleblowing com-
plaints do not constitute protected disclosures. Young, 961
F.3d at 1329; see Hansen v. Merit Sys. Prot. Bd., 746 F.
App’x 976, 981 n.6 (Fed. Cir. 2018) (reporting allegations of
sexual harassment does not constitute a whistleblowing
disclosure); Garvin v. Merit Sys. Prot. Bd., 737 F. App’x
999, 1004 (Fed. Cir. 2018) (filing union grievances and EEO
complaint are not considered whistleblowing disclosures);
Nuri v. Merit Sys. Prot. Bd., 695 F. App’x 550, 553 (Fed.
Cir. 2017) (filing EEO complaint, unfair labor practice com-
plaint, or grievance as to unfair performance evaluation is
not within Board’s IRA jurisdiction because petitioner was
not seeking to remedy an act of whistleblower reprisal).
Mr. Keys also had to prove, once he proved a protected dis-
closure, that the disclosure was a contributing factor in the
agency’s decision to take a personnel action against him. 5
U.S.C. § 1221(e)(1); Hessami v. Merit Sys. Prot. Bd., 979
F.3d 1362, 1367 (Fed. Cir. 2020).
If Mr. Keys made those showings, the agency neverthe-
less could prevail in the IRA appeal by showing, by clear
and convincing evidence, that it would have reassigned Mr.
Keys even in the absence of the protected disclosure. See 5
U.S.C. § 1221(e)(2). The Board’s analysis on this issue
generally is framed around the three non-exclusive Carr
factors: (1) “the strength of the agency’s evidence in support
of its personnel action”; (2) “the existence and strength of
any motive to retaliate on the part of the agency officials
who were involved in the decision”; and (3) “any evidence
that the agency takes similar actions against employees
who are not whistleblowers but who are otherwise simi-
larly situated.” Carr, 185 F.3d at 1323. For the agency to
prevail, the evidence had to justify a “firm belief” that the
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KEYS v. HUD 7

personnel action would have been taken had the protected
disclosure not been made. 5 C.F.R. § 1209.4(e).
B
Mr. Keys challenges the Board’s findings that he failed
to make each of his necessary two showings—that his ac-
cusation of lying by Mr. Bregón in the district court Title
VII case was a protected disclosure and that the disclosure
contributed to his reassignment by Mr. Bregón. Mr. Keys
also challenges the Board’s finding that, even if the lying
accusation was a protected disclosure that contributed to
the reassignment, HUD proved by clear and convincing ev-
idence that it would have reassigned Mr. Keys even had
the lying accusation not been made. We affirm that last
Board finding, which we hold to be supported by substan-
tial evidence. See Miller v. Dep’t of Justice, 842 F.3d 1252,
1258–59 (Fed. Cir. 2016) (applying substantial-evidence
standard of review to this element of IRA appeal). Because
affirming that finding suffices to affirm the denial of cor-
rective action by the Board, we affirm the Board’s decision
without reaching Mr. Keys’s other challenges.
With respect to the first Carr factor, substantial evi-
dence supports the Board’s finding of strong evidence of
HUD’s reason for the reassignment—namely, a broad reor-
ganization consolidating certain functions in the EEO of
HUD—independent of the disclosure at issue. Board Op.
at 20. The evidence reflects a “[p]lan for ensuring that the
EEO DCM [Discrimination Complaint Manager] function
is shifted back to EEO.” S. Appx. 285; see also S. Appx. 290
(identifying 21 Discrimination Complaint Managers, in-
cluding Mr. Keys). The record also contains testimony re-
garding Mr. Keys’s light workload when under Mr.
Bregón’s supervision and the contrasting need for addi-
tional personnel in the EEO under Ms. Morales-Romero’s
supervision. S. Appx. 279. Ms. Morales-Romero’s division
in fact increased from six employees in early 2015 to ten by
September 2015. Id.
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8 KEYS v. HUD

Mr. Keys contends that the agency could not have re-
assigned him to Ms. Morales-Romero’s division because the
agency had no approved vacancies in the new position.
Keys Br. 28–29. He relies on testimony of a human re-
sources officer for the agency, but the Board gave “little
weight” to the testimony that Mr. Keys invokes because the
officer had only recently joined the agency and was “ill at
ease answering questions regarding the particulars of re-
assignment actions, and at times appeared to conflate the
matter of a vacant, funded position with respect to a reas-
signment and the matter of a vacancy announcement used
in the hiring process.” Board Op. at 21–22. We have no
sufficient basis for departing from our usual deference to
such a credibility determination. See Chambers v. Dep’t of
Interior, 515 F.3d 1362, 1370 (Fed. Cir. 2008); Hambsch v.
Dep’t of the Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986).
Mr. Keys contends that the reassignment was im-
proper because the agency failed to comply with a protocol
stated in a collective bargaining agreement. Keys Br. 29–
31. The Board rejected this contention on the ground that
Mr. Keys was not in the bargaining unit before he was re-
assigned; the Board observed that the union representative
who testified on behalf of Mr. Keys did not suggest that the
reassignment of a non-bargaining unit employee triggered
the agreement protocols. Board Op. at 22. We see no basis
for disturbing that determination.
With respect to the second Carr factor, i.e., concerning
the presence of a motive to retaliate, we find no reversible
error in the Board’s weighing this factor in favor of the
agency. Mr. Keys contends that Mr. Bregón knew of the
accusation of lying and would have been so infuriated by it
that he would have been motivated to retaliate against Mr.
Keys. Keys Br. 30. But the Board found that Mr. Bregón
“credibly” and “emphatically denied” retaliating against
Mr. Keys and that Mr. Bregón was “sincere and consistent
with his prior efforts to assist” Mr. Keys. Board Op. at 23–
24. The Board found that while Mr. Bregón “may have
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KEYS v. HUD 9

ostensibly had such a motive,” his testimony suggested
that he did not, in fact, “harbor[] any such animus against
[Mr. Keys].” Id. at 23. Again, we see no adequate basis for
declining to defer to the Board’s credibility determination,
which took as an assumption that Mr. Bregón knew of Mr.
Keys’s disclosure.
With respect to the third Carr factor, the Board ex-
plained that “neither party presented evidence directly rel-
evant” to the agency’s treatment of similarly situated
individuals. Id. at 24. This factor considers “any evidence
that the agency takes similar actions against employees
who are not whistleblowers but who are otherwise simi-
larly situated.” Miller, 842 F.3d at 1262 (quoting Carr, 185
F.3d at 1323). Mr. Keys points to certain other reassigned
employees over whom the agency bargained with the un-
ion. Keys Br. 31; see id. at 38–40 (Exhibit 3). But he has
not shown those employees were outside the bargaining
unit (as he was) or, indeed, that they were non-whistle-
blowers. We therefore see no basis for disturbing the
Board’s finding of no sufficient evidence of similarly situ-
ated employees who did not engage in protected activity.
See Siler v. EPA, 908 F.3d 1291, 1299 (Fed. Cir. 2018)
(“[W]here, as here, the Board finds an absence of relevant
comparator evidence, the third Carr factor cannot favor the
government.”).
On this record, we conclude, the Board did not err in
holding that the agency properly established by clear and
convincing evidence that it would have taken the same per-
sonnel action even in the absence of Mr. Keys’s presumedly
protected disclosure.
C
Mr. Keys challenges the Board’s exclusion of a witness,
Keys Br. 27, an evidentiary ruling generally subject to re-
view only for an abuse of discretion. Curtin v. Off. of Pers.
Mgt., 846 F.2d 1373, 1378–79 (Fed. Cir. 1988). Mr. Keys
sought to call an assistant general counsel in HUD’s
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10 KEYS v. HUD

Personnel Law Division to obtain testimony about whether
Mr. Bregón knew of Mr. Keys’s lying accusation at the rel-
evant time. Keys Br. 27. The Board described the agency’s
objection as asserting irrelevance and also that the attor-
ney’s “participation as a fact witness could create a conflict
of interest in this appeal, as [the attorney] supervises the
agency representatives.” S. Appx. 38. The Board sustained
the agency’s objection, stating simply that the attorney’s
“testimony would be duplicative of that of Bregón.” S.
Appx. 38. In challenging that ruling, Mr. Keys contends
that the supervisor-attorney could uniquely testify to Mr.
Bregón’s knowledge. Keys Br. 27.
We need not reach this challenge. Even if the Board
erred in excluding this testimony, any error is harmless.
Mr. Keys ties the potential testimony only to the contrib-
uting-factor element of the IRA appeal. But the Board as-
sumed that Mr. Keys had proved that element when it
went on to decide that HUD would have reassigned him
even had there been no disclosure. Thus, the evidentiary
ruling has no demonstrated bearing on the basis for the
Board’s denial of corrective action in the IRA appeal that
we hold sufficient to support that denial.
III
For the foregoing reasons, we affirm the decision of the
Board.
The parties shall bear their own costs.
AFFIRMED