Kewley v. Department of Health & Human Services (153 F.3d 1357, 1998)

MICHEL, Circuit Judge.

Karen L. Kewley, a probationary employee with the Department of Health and Human Services (“agency”) who had, made a “protected disclosure” under the Whistle-blower Protection Act of 1989, Pub.L. No. 101-12, 103 Stat. 16 (1989) (codified at scattered sections of 5 U.S.C.) (“WPA”), petitions for review of the final decision of the Merit Systems Protection Board (“Board”) denying her request for corrective action under the provisions of 5 C.F.R. § 1209.2 (1998), in an individual right of action (“IRA”) arising under 5 U.S.C. § 1221(e) (1994). The initial decision of the Administrative Judge (“AJ”), see Kewley v. Department of Health & Human Servs., No. DE-1221-96—0387-W-2 (M.S.P.B. April 1, 1997), became the final decision of the Board on August 15, 1997, when the full Board denied review. Petitioner argues that she established a prima facie case of retaliation, ie., that her disclosure was a contributing factor to her removal, simply because the removal decision was made within six weeks of her protected disclosure by one who knew about it. Knowledge of the protected disclosure was undisputed and the AJ found the timing “reasonable” within the meaning of the WPA, but nevertheless ruled retaliation had not been established, prima facie. We hold this ruling to be contrary to 5 U.S.C. § 1221(e) (1994) as properly construed and thus legal error. But, we further hold, the error was harmless. Substantial evidence supported the AJ’s alternative ruling that the agency established by clear and convincing evidence that it would have removed Ms. Kewley, regardless of her protected disclosure. .Therefore, we affirm.

BACKGROUND

On November 14, 1993, Ms. Kewley was appointed to a GS-11 competitive career-conditional position of clinical psychologist and assigned to the agency’s Billings Area Indian Health Service, Fort Peck Service Unit, located in Poplar, Montana. Ms. Kew-ley’s job, under an appointment which was subject to completion of a one-year probationary period, was to provide psychological evaluations, consultations, and therapy for schoolchildren, develop school-based mental health programs, and act as a liaison with outreach services. In late January 1994, Margene Tower, the Billings Area Mental Health Program Officer, initiated an investigation into Ms. Kewley’s work performance' as a probationary employee. That investigation was unrelated to the protected disclosure which was filed in February 1994.

In an undated memorandum, determined to have been sent on February 4, 1994, Ms. Kewley informed her supervisor, Susan Fifer, Director of Behavioral Health, through Bob Camper, Clinical Director, and Kenny Smoker, Service Unit Director, of her belief that the agency’s practice of allowing non-crisis counseling with minor children without first obtaining consent from their legal guardian was a violation of specific ethical and legal requirements. This was the protected disclosure. In a staff meeting several weeks later, the agency addressed Ms. Kew-ley’s memorandum by handing out new informed consent forms and requiring their use, just as she had suggested.

Thereafter, in a letter signed by Mr. Camper, for Ms. Fifer, dated March 16,1994, Ms. Kewley received notice that her employment was to be “terminated” effective March 19, 1994, for unsatisfactory performance. The termination was predicated on four reasons: (1) her inability, to work effectively in the cross-cultural setting; (2) her failure to establish effective'working relationships with community agencies