Cheryl M. Hooven-Lewis v.  LOUIS CALDERA, Secretary of the Army

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 CHERYL M. HOOVEN-LEWIS,
Plaintiff-Appellant,
v. No. 00-1439 
LOUIS CALDERA, Secretary of the
Army,
Defendant-Appellee. 
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CA-97-3459-DKC)
Argued: January 26, 2001
Decided: May 1, 2001
Before WILLIAMS and TRAXLER, Circuit Judges, and
Gerald Bruce LEE, United States District Judge for the
Eastern District of Virginia, sitting by designation.
Affirmed by published opinion. Judge Lee wrote the opinion, in
which Judge Williams and Judge Traxler joined.
COUNSEL
ARGUED: John Wesley Davis, Washington, D.C., for Appellant.
Ariana Wright Arnold, Assistant United States Attorney, Baltimore,
Maryland, for Appellee. ON BRIEF: Thomas J. Gagliardo, GAG-
LIARDO & ZIPIN, Silver Spring, Maryland, for Appellant. Lynne A.
Battaglia, United States Attorney, Baltimore, Maryland, for Appellee.

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OPINION
LEE, District Judge:
Plaintiff-Appellant Cheryl M. Hooven-Lewis appeals a final order
of the United States District Court for the District of Maryland grant-
ing Defendant-Appellee Louis Caldera’s motion for summary judg-
ment and entering judgment for Appellee on Appellant’s claims.
Appellant Hooven-Lewis alleged that the Army discriminated against
her in violation of the Rehabilitation Act because of her disability (a
hand tremor); that the Army subjected her to placement in improper
job positions and terminated her in retaliation for her Equal Employ-
ment Opportunity activity, in violation of the Rehabilitation Act; and
that the Army terminated her in violation of the Whistleblower Pro-
tection Act for informing on superiors who failed to report errors in
laboratory data.
The issues before the Court are whether Hooven-Lewis has a dis-
ability under the Rehabilitation Act or was regarded by her employer
as having such a disability, whether Hooven-Lewis made out a prima
facie case of retaliation under the Rehabilitation Act, and whether the
Merit Systems Protection Board was arbitrary and capricious or
abused its discretion in finding that Hooven-Lewis’ employer did not
terminate her for informing upon her superior. The Court holds that
Hooven-Lewis does not have a disability under the Rehabilitation Act
because she does not have a condition that substantially limits her in
any major life activity. In addition, Hooven-Lewis’ employer does not
perceive her as having such a disability. The Court further holds that
Hooven-Lewis has not made out a prima facie case of retaliation
under the Rehabilitation Act because she has failed to show a causal
connection between protected activities and alleged acts of reprisal.
The Court also holds that Hooven-Lewis’ whistleblower retaliation
claim fails because the Merit Systems Protection Board did not act
arbitrarily or abuse its discretion in dismissing Hooven-Lewis’
whistleblowing claim; the record before the Court demonstrates that
the Board considered the evidence and made a reasoned decision.
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FACTS
Plaintiff-Appellant Cheryl Hooven-Lewis entered active duty in the
United States Army in January, 1985. While enlisted, Hooven-Lewis
received training as a medical laboratory specialist1 and was ulti-
mately assigned to the Walter Reed Army Hospital Institute of
Research ("Walter Reed"). After her discharge from duty in January,
1988, Hooven-Lewis obtained civilian employment at Walter Reed as
a biological laboratory technician. Between January, 1988 and May,
1989, Hooven-Lewis worked under the supervision of Dr. Susan Lor-
ing while she was in training. From 1989 to 1993, Hooven-Lewis
worked in the division of retrovirology under Dr. Victoria Polonis.
Her job involved working with laboratory specimens, various chemi-
cals, and electrical and mechanical laboratory equipment. During her
time with Dr. Polonis, Hooven-Lewis suffered from an undiagnosed
hand tremor. Dr. Polonis accommodated Hooven-Lewis’ tremor by
not requiring her to handle any hazardous or infectious substances.
Other laboratory technicians would lyse the live infectious cells, ren-
dering them inactive.
When Dr. Polonis resigned her commission, Hooven-Lewis was
recruited to work in several laboratories because of her excellent work
record and commendations. Hooven-Lewis accepted a position with
Dr. Maryanne Vahey in October, 1993. When interviewing with Dr.
Vahey, Hooven-Lewis told Dr. Vahey that her previous supervisors
had not required Hooven-Lewis to work with lethal pathogens or live
materials that were highly infectious and dangerous. Dr. Vahey
assured Hooven-Lewis that it would not be a problem. However,
Hooven-Lewis did not tell Dr. Vahey about her hand tremor. Upon
beginning work with Dr. Vahey, Hooven-Lewis continued to do much
of the same work with chemicals and lysed infectious agents that she
had done with Dr. Polonis. In addition to the laboratory "bench
work," Hooven-Lewis also organized the lab and did administrative
work. Most of the administrative work was done at home.
1Hooven-Lewis did not receive training in college in this field.
Hooven-Lewis’ degrees are in business management and sociolo-
gy/criminal justice.
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In November, 1993, Hooven-Lewis discovered some errors in the
data in Dr. Vahey’s lab. Hooven-Lewis discussed the errors with Dr.
Vahey. Hooven-Lewis expressed the concern that the errors could
result in inaccurate experiments because other labs shared Walter
Reed’s results for use in their experiments. Dr. Vahey assured
Hooven-Lewis that she would alert the partner labs to the errors.
Hooven-Lewis consulted with her previous supervisor, Dr. Loring,
and obtained her opinion that the errors could result in AIDS patients
receiving improper dosages of their medications. A week later, in
December of 1993, doctors diagnosed Hooven-Lewis as having a
physiological hand tremor that caused difficulty with fine motor dex-
terity. However, Hooven-Lewis did not ask to be removed from her
job as a technician because she was not working with active (non-
lysed) HIV. In that same month, Dr. Vahey ordered her lab staff to
throw away all protocols and records that had been used in several
experiments, including those experiments containing erroneous data.2
Walter Reed promoted Hooven-Lewis to a supervisory position as
"a laboratory protocol manager" in February, 1994. However, the
work Hooven-Lewis performed remained substantially the same, con-
stituting mostly bench work and administrative work performed at
home after business hours. From February to April, 1994, Hooven-
Lewis discovered other errors in the lab and communicated them to
Dr. Vahey. In May, Hooven-Lewis learned that Dr. Vahey had not
told the other labs of the errors, and that a researcher at Walter Reed
was going to present findings based on the erroneous data at an AIDS
conference in Japan. Hooven-Lewis confronted Dr. Vahey about this,
and Hooven-Lewis asserts that Dr. Vahey reacted angrily.
In early June, 1994, Dr. Vahey ordered Hooven-Lewis to begin
working with active (non-lysed) HIV samples. On August 23, 1994,
Dr. Vahey told Hooven-Lewis to leave the lab after Hooven-Lewis
refused to let Dr. Vahey communicate with her doctor about her hand
tremor. In a meeting on August 30, 1994, several division heads met
with Hooven-Lewis to discuss Hooven-Lewis’ medical condition and
her duties. Colonel David Burke, the director of the Retrovirology
Division, decided to take Hooven-Lewis out of retrovirology and
2Hooven-Lewis does not allege that the only records Dr. Vahey asked
her lab staff to throw out were records of the problem experiments.
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detail her to other duties pending an evaluation of her medical prob-
lem and the impact Hooven-Lewis’ medical condition would have on
her work handling dangerous infectious, radioactive, and chemical
substances. That same day, Hooven-Lewis told Colonel Burke about
the laboratory errors and Dr. Vahey’s requiring her to work with
unlysed agents.
With the help of the Walter Reed personnel office, Hooven-Lewis
was placed in several temporary assignments pending her medical
determination. On October 7 and 11, 1994, Hooven-Lewis first con-
sulted the office of Equal Employment Opportunity ("EEO") about
her rights and about filing a complaint of discrimination. In that same
month, Hooven-Lewis requested that she be permitted to return to Dr.
Vahey’s lab or be transferred to another lab within Retrovirology.
Hooven-Lewis believed that she should be permitted to work in the
lab and that her supervisors should accommodate her condition by
having others lyse the materials with which she would work. Hooven-
Lewis’ request to return to a lab in Retrovirology included a statement
that the only task required of her that was involved in her request for
the lysing accommodation was the task of isolating nucleic acids, and
that, aside from that, she was able to perform all other duties of her
position with Dr. Vahey. However, after repeated requests, Hooven-
Lewis never provided the Army with medical records indicating
definitively that she was permanently precluded from performing
work in the lab handling dangerous agents. Therefore, the Army had
no verifiable proof that any accommodation was necessary. On Octo-
ber 22, 1994, after reviewing the conflicting medical documentation
supplied by Hooven-Lewis, reviewing Hooven-Lewis’ job descrip-
tion, and visiting Dr. Vahey’s lab, the chief of occupational medicine
at Walter Reed, Dr. Kenneth Phillips, issued a medical determination
stating that there was no indication that Hooven-Lewis could not per-
form all of the duties required of her in the labs without restrictions
or limitations. In the same month, Hooven-Lewis filed an informal
complaint with the EEO.
Hooven-Lewis had been placed in several temporary assignments
after her removal from Dr. Vahey’s lab, including one in the Logistics
Division which lasted several months. Despite her failure to provide
the requested medical documentation, the Army granted Hooven-
Lewis’ request to be returned to Dr. Vahey’s laboratory in February,
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1995. However, Hooven-Lewis was not given any specific accommo-
dations. Hooven-Lewis informed Dr. Vahey that she would only
spend ten percent of her time performing laboratory duties; Hooven-
Lewis wanted to spend the majority of her time performing manage-
rial duties. Consequently, attempts were made to find Hooven-Lewis
another position with duties she would agree to perform. On February
22, 1995, Hooven-Lewis filed a formal complaint with the EEO. In
March 1995, Hooven-Lewis was detailed to Dr. McQueen’s labora-
tory in the Department of Gastroenterology. However, once there,
Hooven-Lewis refused to do laboratory work involving potentially
infectious materials. Dr. McQueen requested that Hooven-Lewis’
detail with him be terminated. No other jobs for Hooven-Lewis could
be found. Dr. Vahey requested that Hooven-Lewis be removed from
federal employment on March 10, 1995. Hooven-Lewis was removed
effective July 28, 1995.
Hooven-Lewis filed an action with the Merit Systems Protection
Board ("MSPB") on November 29, 1995 to appeal the Army’s action
removing her from the position of Biologist. Hooven-Lewis alleged
that the Army discriminated against her for her disability of having
a hand tremor, and failed to reasonably accommodate her hand
tremor. Hooven-Lewis also alleged that the Army retaliated against
her for her actions with the EEO protesting the discrimination.
Finally, Hooven-Lewis alleged that the Army retaliated against her
for "whistleblowing" about Dr. Vahey’s errors in the lab and destruc-
tion of lab protocols. The MSPB dismissed Hooven-Lewis’ whistle-
blowing claim before any hearing, holding that Hooven-Lewis had
not made statutorily protected disclosures that qualified as whistle-
blowing. The MSPB then held a three-day hearing in March, 1996 on
Hooven-Lewis’ remaining claims. The MSPB affirmed the Army’s
action of removal in an Order issued March 29, 1996. This lawsuit
followed.
Hooven-Lewis originally filed suit in the U.S. District Court for the
District of Columbia. This case was transferred to the United States
District Court for the District of Maryland pursuant to 28 U.S.C.
§ 1404(a). Plaintiff’s Amended Complaint asserted 1) disability dis-
crimination in violation of the Rehabilitation Act, 29 U.S.C. § 790 et
seq.; 2) retaliation for engaging in protected EEO activity, in violation
of the Rehabilitation Act; 3) retaliation in violation of the Whistle-
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blower Protection Act, 5 U.S.C. § 2302; 4) intentional infliction of
emotional distress; and 5) compelled disclosure of information under
the Freedom of Information Act. The transferring court dismissed the
intentional infliction of emotional distress and Freedom of Informa-
tion Act claims. The U.S. District Court for the District of Maryland
granted Defendant’s motion for summary judgment on Hooven-
Lewis’ remaining claims. Hooven-Lewis timely filed an appeal to this
Court.
STANDARD OF REVIEW
The claims submitted to this Court on appeal from the district
court’s grant of summary judgment are subject to de novo review. See
Mitchell v. Data General Corp., 12 F.3d 1310, 1313 (4th Cir. 1993)
(stating that summary judgment is subject to de novo review); 5
U.S.C. §§ 7702(a)(1)(B)(iii), 7702(a)(3)(a) (indicating that Rehabili-
tation Act claims previously submitted to the Merit Systems Protec-
tion Board are subject to judicial review as of the Board’s issuance
of its decision, if the employee does not file, or have pending, a case
before the Equal Employment Opportunity Commission).
Rule 56 of the Federal Rules of Civil Procedure requires a court to
grant summary judgment if the moving party demonstrates that there
is no genuine issue as to any material fact and that the party is entitled
to judgment as a matter of law. See Fed. R. Civ. P. 56(c). A court
should enter summary judgment "against a party who fails to make
a showing sufficient to establish the existence of an element essential
to that party’s case, and on which that party will bear the burden of
proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Once a motion for summary judgment is properly made and sup-
ported, the opposing party has the burden of showing that a genuine
dispute exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986). The mere existence of some alleged
factual dispute between the parties, however, will not defeat an other-
wise properly supported motion for summary judgment; the require-
ment is that there be no genuine issue of material fact. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Only disputes
over facts that might affect the outcome of the suit under the govern-
ing law will properly preclude the entry of summary judgment. See
id. at 248.
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In determining whether a party is entitled to summary judgment,
the record is viewed in the light most favorable to the nonmoving
party. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
Therefore, this Court views the facts in a light most favorable to
Appellant Hooven-Lewis.
Although, in general, summary judgment motions are subject to de
novo review, Hooven-Lewis’ Whistleblower Protection Act claim is
subject to a more narrow standard of review than Hooven-Lewis’
other claims. This Court does not decide whether there exists a genu-
ine issue of material fact as to the whistleblower claims; instead, the
Court reviews the claim only to see if the MSPB acted arbitrarily or
capriciously, or abused its discretion, in dismissing the whistleblower
claim. See 5 U.S.C. § 7703(c). Ordinarily, the Court of Appeals for
the Federal Circuit undertakes the judicial review of MSPB actions on
whistleblowing claims; the Federal Circuit reviews the claim on the
administrative record. See id. §§ 7701(c), 7703(b)(1). However,
where, as here, a claim of discrimination (i.e., violation of the Reha-
bilitation Act) is coupled with a Whistleblower Protection Act claim,
the entire "mixed case" is filed in federal district court, and then
reviewed by the applicable court of appeals. See id. §§ 7702(a)(2),
7703(b)(2); see also McAdams v. Reno, 64 F.3d 1137, 1142 (8th Cir.
1995) ("Employees pursuing relief through an EEO mixed case com-
plaint may file a civil discrimination action in federal district court
within 30 days of a final decision by the agency . . . ."). Therefore,
this Court’s de novo review of the district court’s decision as to the
Whistleblower Protection Act claim comprises a determination of
whether the MSPB abused its discretion in dismissing Hooven-Lewis’
claim. Specifically, the Court must affirm the MSPB decision unless
the Court finds the decision to be "(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).
DISCUSSION
I. The Discrimination Claim
Hooven-Lewis grounds her argument supporting her claim of dis-
crimination in the assertion that there is a disputed issue of material
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fact as to whether the Army discriminated against her based on her
hand tremor. Hooven-Lewis also argues that there is a genuine issue
of material fact as to whether she meets the definition of an individual
with a disability under the Rehabilitation Act ("RA"). Hooven-Lewis
contends that she is an individual with a disability because her hand
tremor "substantially limits" her in the "major life activity" of work-
ing. See 29 U.S.C. § 706(8)(B) (defining "individual with handi-
caps"). Hooven-Lewis asserts that she was limited in her ability to
obtain work in her field because there were no other positions at Wal-
ter Reed for Hooven-Lewis that did not involve dangerous materials.
See Gupton v. Virginia, 14 F.3d 203, 205 (4th Cir. 1994) (holding that
to demonstrate a substantial limitation in the major life activity of
doing work, an employee must be foreclosed generally from obtaining
jobs in her field, not just from continuing in her current position).
Alternatively, Hooven-Lewis argues that even if she did not actually
have a disability under the RA, she was still "an individual with a dis-
ability" under the RA because her employer, the United States Army
("Army"), regarded her as having an impairment that limited her per-
formance of major life activities. See Cline v. Wal-Mart Stores, Inc.,
144 F.3d 294, 303 (4th Cir. 1998) (finding that an employee is pro-
tected from adverse action where employer erroneously perceives the
employee to be restricted in ability to perform class of jobs); Runne-
baum v. NationsBank, 123 F.3d 156, 172 (4th Cir. 1997) (en banc)
(same). Hooven-Lewis argues that the Army’s refusal to accommo-
date her disability constitutes discrimination.
Hooven-Lewis also argues that the Army’s proffered reason for her
termination, that Hooven-Lewis was unable to perform the duties of
her position, is a pretext. Hooven-Lewis asserts that the Army’s argu-
ment that she is not a "qualified individual with a disability" is false,
because she can perform her duties commendably with the accommo-
dation of having others lyse active cells before she works with the
cells. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 517 (1993)
(stating that proof that employer’s explanation for adverse employ-
ment actions is false is a form of circumstantial evidence probative of
intentional discrimination); Wright v. West, 505 U.S. 277, 296 (1992)
(stating that the factfinder is entitled to consider a party’s dishonesty
as affirmative evidence of guilt). Moreover, the lysing accommoda-
tion is "reasonable" and not an "undue hardship" for the Army, as evi-
denced by the facts that the accommodation takes little time or
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expense, and that the Army made the accommodation for Hooven-
Lewis for 10 years. Hooven-Lewis therefore contends that the only
reasons for the Army’s withdrawal of the accommodation and
removal of Hooven-Lewis from employment are discrimination and
retaliation. For these reasons, Hooven-Lewis asks this Court to
reverse the district court’s Opinion and Order granting summary judg-
ment in favor of the Army.
In opposition to Hooven-Lewis’ arguments, Appellee Caldera, Sec-
retary of the U.S. Army (hereinafter "the Army"), calls for the affir-
mation of the district court’s holding because Hooven-Lewis is not
"an individual with a disability" under the RA, and the Army had
legitimate bases to terminate Hooven-Lewis’ employment. The Army
argues that Judge Deborah K. Chasanow of the district court correctly
found that, as a matter of law, Hooven-Lewis is not an individual with
a disability, nor did the Army regard her as such. The Army asserts
that Hooven-Lewis had the burden of proof under the Rehabilitation
Act to show that she was a disabled person against whom the Army
discriminated. See McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973) (setting forth burden shifting scheme in discrimination cases);
St. Mary’s Honor Center, 509 U.S. at 506-08 (applying McDonnell
Douglas burden shifting scheme to discrimination case). The Army
contends that the burden of proof always remained with Hooven-
Lewis, but the burden of production would only shift to the Army if
Hooven-Lewis demonstrated that she was a qualified individual with
a disability who had suffered discrimination at the hands of the Army.
See id.; Doe v. University of Md. Med. Sys. Corp., 50 F.3d 1261, 1265
(4th Cir. 1995) (stating elements of prima facie case of disability dis-
crimination, including that employee must be disabled under the Act,
and otherwise qualified for the employment). The burden of produc-
tion would shift back to Hooven-Lewis if the Army could show that
it had a legitimate basis for terminating Hooven-Lewis. See St.
Mary’s Honor Center, 509 U.S. at 506-07. Appellee asserts that
Hooven-Lewis has not made even the initial showing for a discrimi-
nation claim because Hooven-Lewis was not substantially limited in
her ability to work. Hooven-Lewis’ inability to handle "lethal patho-
gens, such as live viruses, radioactive materials, and chemicals" only
limits her in the ability to perform a particular facet of a particular
job; this does not constitute a substantial limitation. See Halperin v.
Abacus Tech. Corp., 128 F.3d 191, 199 (4th Cir. 1997); Forrisi v.
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Bowen, 794 F.2d 931, 934-35 (4th Cir. 1986); 29 C.F.R.
§ 1630.2(j)(3)(i).
Moreover, the Army argues that Hooven-Lewis has not demon-
strated that the Army regarded Hooven-Lewis as disabled. See 29
C.F.R. § 1614.203(a)(iii). An employer does not regard an employee
as substantially limited in her ability to work simply because it finds
her incapable of satisfying the demands of a particular job. See For-
risi, 794 F.2d at 934 (citation omitted); Chandler v. City of Dallas,
2 F.3d 1385, 1393 (5th Cir. 1993) (stating that employer does not
regard employee as having substantial limitation just because it
believes employee is unable to perform task with adequate safety
margin). The Army argues that its placement of Hooven-Lewis in
other positions demonstrates that the Army did not regard Hooven-
Lewis as having a disability. See Beaver v. Delta Airlines, 43 F. Supp.
2d 685, 693 (N.D. Tex. 1999) (citations omitted).
The Army further argues that even if Hooven-Lewis was disabled,
she was not a "qualified individual with a disability." She was not
qualified because an essential aspect of her job was handling poten-
tially dangerous substances, and she could not do this. See Jasany v.
U.S. Postal Service, 755 F.2d 1244, 1250 (6th Cir. 1985); Champ v.
Baltimore County, 884 F. Supp. 991, 998 (D. Md. 1995).
The Court finds that the record and the law support the Army’s
arguments, and therefore affirms the district court’s grant of summary
judgment for the Army on Hooven-Lewis’ discrimination claim.
Hooven-Lewis’ claim of discrimination fails because she has not
made a prima facie case of discrimination under the Rehabilitation
Act, 29 U.S.C. § 790 et seq., 29 C.F.R. § 1614.203. As an initial mat-
ter, Hooven-Lewis is incorrect in stating that whether Hooven-Lewis
is disabled under the statute is "a material fact in dispute" requiring
denial of summary judgment. Whether Hooven-Lewis meets the defi-
nition of the statute, and therefore can bring a claim under the statute,
is a question of law for a court, not a question of fact for a jury.
Therefore, although the question of whether the Army’s actions con-
stituted discrimination could be a question for the jury, the prelimi-
nary issue of whether Hooven-Lewis is covered by the statue is one
for the Court. The district court correctly found that Hooven-Lewis’
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claim of discrimination under the RA could not stand because
Hooven-Lewis is not covered by the statute.
The standards used to determine whether an employer has discrimi-
nated under the Rehabilitation Act are the standards applied under the
Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12111
et seq., and the provisions of sections 501 through 504, and 510 of
the ADA, 42 U.S.C. §§ 12201-12204 and 12210. See 29 U.S.C.
§ 791(g). Therefore, the general rule is that no covered entity shall
discriminate against a qualified individual with a disability because of
the disability. See 42 U.S.C. § 12112(a). Discrimination under the RA
includes "limiting, segregating, or classifying a job applicant or
employee in a way that adversely affects the opportunities or status
of such applicant or employee because of the disability of the appli-
cant." Id. § 12112(b)(1). Discrimination also includes:
not making reasonable accommodations to the known physi-
cal or mental limitations of an otherwise qualified individual
with a disability who is an applicant or employee, unless
such covered entity can demonstrate that the accommoda-
tion would impose an undue hardship on the operation of the
business of such covered entity.
Id. § 12112(b)(5)(A). Hooven-Lewis argues that the Army classified
her as unable to work as a biologist in the Army in the field of
Retrovirology, and failed to make reasonable accommodation for her
hand tremor. The Army counters that its actions in compelling
Hooven-Lewis to work with unlysed substances, removing Hooven-
Lewis from laboratory work, and ultimately removing Hooven-Lewis
from civil service employment with the Army were justified and did
not amount to discrimination.
Before addressing whether an employer’s actions qualify as dis-
crimination, a party must first demonstrate that he or she is an indi-
vidual with a disability under the RA. An "individual with a
disability," or handicap, is defined as one who:
(i) has a physical or mental impairment which substantially
limits one or more of such person’s major life activities;
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(ii) has a record of such an impairment; or
(iii) is regarded as having such an impairment.
Rehabilitation Act, 29 U.S.C. § 705(20)(b); Rehabilitation Act, 29
C.F.R. § 1614.203(a)(1); see also Americans with Disabilities Act, 42
U.S.C. § 12102(2) (giving an almost identical definition for individu-
als with a "disability," and defining the term "disability" that is
applied in the sections of the ADA used to determine whether the RA
has been violated). To qualify under the RA as a protected disability
that substantially limits a major life activity, the impairment must
limit functions "such as caring for one’s self, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning, and
working." 29 C.F.R. § 1614.203(a)(3). Hooven-Lewis’ discrimination
claim fails because her hand tremor does not substantially limit a
major life activity, and the Army did not regard Hooven-Lewis as one
limited in any major life activities.
The major life activity which Hooven-Lewis says her tremor limits
is the ability to work. However, Hooven-Lewis’ hand tremor does not
prevent her from working, as demonstrated by her employment for
ten years in the Army laboratories. The tremor merely prevents
Hooven-Lewis from handling certain materials safely. Therefore,
Hooven-Lewis is not substantially limited from working, but only
from doing "bench work" in the Army lab as a retrovirologist. This
circuit has held that a plaintiff seeking to demonstrate a limitation in
her ability to work must demonstrate that she is foreclosed generally
from the opportunity to obtain the type of employment involved, not
merely that she is "incapable of satisfying the singular demands of a
particular job." Forrisi, 794 F.2d at 934-35; see also Gupton, 14 F.3d
at 205 (quoting Forrisi, 794 F.2d at 935); 29 C.F.R. § 1630.2(j)(3)(i)
("The inability to perform a single, particular job does not constitute
a substantial limitation in the major life activity of working.").
Hooven-Lewis asserts that it is not her contention that she is inca-
pable of satisfying the demands of a particular job, but instead that
she is foreclosed from the opportunity to obtain the type of employ-
ment at issue in this case. Gupton, 14 F.3d at 205 (citing Forrisi, 794
F.2d at 935). Hooven-Lewis argues that she is disabled, or at least
perceived as disabled, because she is substantially limited in her abil-
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ity to work in her field. The regulations define "substantially limited"
as being significantly restricted in the ability to perform either a "class
of jobs" or a "broad range of jobs in various classes." 29 C.F.R.
§ 1630.2(j)(3)(i). Hooven-Lewis does not argue that she is not able to
perform a range of jobs in other fields. Yet, Hooven-Lewis has not
demonstrated that she is disqualified from performing a class of jobs,
because she may still perform jobs utilizing her training, knowledge,
skills, and abilities as a biologist.
Hooven-Lewis’ inability to demonstrate that she is unable to per-
form work in her field can be analogized to the employee’s inability
to do so in Gupton v. Virginia. In Gupton, the plaintiff alleged that
her allergy to tobacco smoke limited her ability to work. However,
the Fourth Circuit held that plaintiff had only demonstrated that she
could not work in her current position, not that she was foreclosed
generally from finding work in her field. See Gupton, 14 F.3d at 205.
This was especially the case because Gupton’s employer offered to
accommodate Gupton’s allergy by giving her a position in a smoke-
free facility. See id. at 204. Gupton’s ability to actually perform the
work if not near tobacco smoke evidenced that Gupton could still do
work in her field. Similarly, Hooven-Lewis’ own arguments demon-
strate that Hooven-Lewis can still do work in her field.
Where a worker demonstrates that his condition makes him unsuit-
able for a position with a particular employer, but demonstrates that
he has "no difficulty in obtaining other jobs in his field," the worker
has not demonstrated that he is substantially limited in his ability to
work. See Forrisi, 794 F.2d at 935. Hooven-Lewis’ own repeated
assertions demonstrate that she can do work in her field. Hooven-
Lewis points out that she did work in her field for ten years, and that
she can continue to work with the HIV virus as long as the samples
are lysed (this can be analogized to Gupton’s ability to work with the
accommodation of a smoke-free office). Hooven-Lewis also points
out that she was offered several positions in her field with other labo-
ratories, notwithstanding her tremor. (J.A. 507, 518: Declaration of
Cheryl M. Hooven-Lewis ¶ 58.) This circuit has held that there is no
indication that an employee’s impairment has limited his ability to
perform a wide range of jobs if he can, and does, find comparable
employment with a different employer. See Halperin, 128 F.3d at
199. Moreover, Hooven-Lewis states that her tremor limited her abil-
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ity to work in positions in which she was required to handle lethal
pathogens (Appellant’s Brief at 20); however, Hooven-Lewis may
still hold positions as a biologist handling non-lethal pathogens and
other materials (J.A. 526: Memo of Discussion with Dr. Suzanne
Gartner (indicating that Gartner had a position in her lab for Hooven-
Lewis not involving infectious diseases).) In addition, Hooven-Lewis’
own argument is that she wanted the dangerous duties taken away,
and that, thereafter, she could still do the rest of her duties (e.g.,
administrative and supervisory duties). Therefore, there is substantial
evidence that Hooven-Lewis can still do work in her field. Thus,
Hooven-Lewis is not disabled under the RA.
Not only is Hooven-Lewis not disabled under the RA, the Army
did not regard her as disabled. The Army did not regard Hooven-
Lewis as disabled because it believed that she could in fact do the par-
ticular work that she asserted that she could not do: Vahey required
Hooven-Lewis to work with unlysed materials (J.A. 8, 13: Amended
Compl. ¶¶ 36(a), 36(b)); Diane Lewis reported that the Army felt it
needed additional documented medical proof of why Hooven-Lewis
could not work in her laboratory placements (J.A.: 142, 155: MSPB
hearing testimony of Lillian Diane Lewis); Hooven-Lewis was placed
in Gastroenterology doing lab work that she had done before (J.A.
121, 126-29: MSPB hearing testimony of Dr. Charles McQueen); and
the Chief of Occupational Medicine reviewed Hooven-Lewis’ medi-
cal documentation and found that Hooven-Lewis’ condition did not
warrant any limitations, restrictions, or accommodations (J.A. 229,
640: Medical Determination of Dr. Kenneth G. Phillips). Further evi-
dence that the Army did not regard Hooven-Lewis as disabled is that
several officials believed that Hooven-Lewis was faking her tremor.
(J.A. 237, 239: Proposed Removal Memorandum (indicating that the
Army believed that Hooven-Lewis simply refused to perform her
duties, not that she was handicapped); J.A. 142, 171: Testimony
regarding Col. Boswell before the MSPB, Lines 17-20 (indicating that
Boswell thought Hooven-Lewis was faking); J.A. 89, 105: MSPB Ini-
tial Decision n.11 (same); J.A. 414, 436: Pl. Opp. to Def. Mot. for
Summ. J. and Pl.’s Cross Mot. for Summ. J. (stating that Vahey wrote
at least two memoranda accusing Hooven-Lewis of forging doctors’
notes).) Moreover, even when thinking that accommodations needed
to be made for Hooven-Lewis, the Army did not regard Hooven-
Lewis as being unable to perform the life activity of doing work in
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general; the Army tried to find a position for Hooven-Lewis that
"equaled her profession." See J.A. 140, 144: Lewis MSPB testimony,
Lines 8-9; see also Chandler, 2 F.3d at 1392-93 (holding that employ-
er’s belief that employee cannot perform task with adequate safety
margin does not establish per se that employer regards employee as
having substantial limitation on ability to work in general). The Army
placed Hooven-Lewis in positions in the Logistics Division, a medical
library, and the Gastroenterology Department. An employee is not
"regarded as" having a disability where the employer places the
employee in another position. See Beaver v. Delta Airlines, 43 F.
Supp. 2d 685, 693 (N.D. Tex. 1999). In sum, the evidence shows that
Hooven-Lewis is not disabled under the RA, nor was she regarded as
disabled. Therefore, Hooven-Lewis cannot make out a prima facie
case of discrimination under the Rehabilitation Act. For these reasons,
the district court’s Opinion granting summary judgment for the Army
on Hooven-Lewis’ discrimination claim is affirmed.
Because Hooven-Lewis has not demonstrated that she meets the
definition of a disabled individual under the RA, the Court need not
reach several questions: (1) whether Hooven-Lewis was a "qualified
individual with a disability" (i.e. one who, with or without reasonable
accommodation, could perform the essential functions of the employ-
ment position, see 42 U.S.C. § 12111(8)); (2) whether the accommo-
dation of having others lyse Hooven-Lewis’ samples was reasonable;
and (3) whether the Army’s stated rationale for Hooven-Lewis’
removal, that Hooven-Lewis was unqualified for her position, was
pretextual. See, e.g., Jasany at 1250 (holding that because plaintiff did
not establish its prima facie case of discrimination, it was unnecessary
to address the question of reasonable accommodation).
II. The Rehabilitation Act Retaliation Claim
Hooven-Lewis argues that the Army’s refusing to continue accom-
modating her disability, removing her from her position as a labora-
tory technologist, and ultimately terminating her employment
altogether were acts of retaliation for her EEO activity. Hooven-
Lewis asserts that the adverse employment actions taken against her
began only after she went to the EEO to complain of discrimination.
See Causey v. Balog, 162 F.3d 795, 803 (4th Cir. 1998) (stating that
prima facie case of retaliation includes demonstration that employee
16 HOOVEN-LEWIS v. CALDERA

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engaged in protected activity, that employer took adverse employ-
ment action against her, and a causal connection between the employ-
ment action and the protected activity). Hooven-Lewis reported to
Colonel Boswell that Dr. Vahey had stopped accommodating her dis-
ability. Also, Hooven-Lewis had repeated contact with the EEO.
Hooven-Lewis points out that Dr. Vahey threw Hooven-Lewis out of
her lab on the same day that Dr. Vahey was informed that she had to
attend an EEO mediation with Hooven-Lewis. Hooven-Lewis con-
tends that the short time between the EEO activity and the disciplin-
ary actions taken against her strengthens the argument that the
disciplinary actions were due to her protected activity. See Williams
v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989).
As with her discrimination claim, Hooven-Lewis argues that the
Army’s proffered reason for her termination, that Hooven-Lewis was
unable to perform the duties of her position, is a pretext. Hooven-
Lewis asserts that the Army’s argument that she is not a "qualified
individual with a disability" is false, because she demonstrated for ten
years that she could perform her job with a minor accommodation.
See St. Mary’s Honor Center, 509 U.S. at 517 (stating that proof that
employer’s explanation for adverse employment action is false is an
indication of intentional discrimination); Wright, 505 U.S. at 296
(stating that factfinder is entitled to consider party’s dishonesty as
affirmative evidence of guilt). Moreover, the lysing accommodation
is "reasonable" and not an "undue hardship" for the Army. The proce-
dure takes thirty seconds to two minutes a day. In an hour, enough
material could be lysed to keep an entire laboratory busy for more
than a week. Therefore, Hooven-Lewis contends that retaliation is the
only reason for the Army’s withdrawal of the accommodation and
removal of Hooven-Lewis from employment. For these reasons,
Hooven-Lewis asks this Court to reverse the district court’s Opinion
granting summary judgment in favor of the Army on Hooven-Lewis’
RA retaliation claim.
In opposing Hooven-Lewis’ arguments, the Army grounds its argu-
ment in the fact that Hooven-Lewis cannot establish a causal connec-
tion between her EEO activities and the personnel actions the Army
took with regard to Hooven-Lewis. See Causey, 162 F.3d at 803 (set-
ting forth causation as an element of a retaliation claim). The Army
contends that the personnel actions leading up to Hooven-Lewis’
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removal, and the ultimate decision to remove Hooven-Lewis from
federal employment, occurred before Hooven-Lewis’ protected EEO
activity. Dr. Vahey began disciplinary actions in February of 1995,
and Hooven-Lewis filed her EEO complaint on or about April 1,
1995. Hooven-Lewis’ alleged whistleblower activities, dating farther
back, offer no support for her claim of retaliation under the RA.
The Court holds that Hooven-Lewis’ RA retaliation claim fails
because, even taking all inferences in favor of Hooven-Lewis, she has
not demonstrated a causal connection between any protected activity
and adverse employment action. Adopting provisions of the ADA, the
RA provides that no person shall retaliate against an individual
because that individual engages in activity challenging an employer’s
alleged discrimination. More specifically, the RA states that no per-
son shall discriminate against any individual because the individual
has opposed any discriminatory employment action or practice, or
made a charge of discrimination. See 42 U.S.C. § 12203(a). In order
to establish a prima facie claim of retaliation, one must demonstrate
that "(1) plaintiff engaged in protected activity, such as filing an EEO
complaint; (2) the employer took adverse employment action against
plaintiff; and (3) a causal connection existed between the protected
activity and the adverse action." Causey, 162 F.3d at 803. Hooven-
Lewis argues that the Army retaliated against her for her allegations
of discrimination by changing her job description, removing her from
Dr. Vahey’s lab, requiring her to work with unlysed substances, and
ultimately removing her from employment with the Army. However,
Hooven-Lewis is unable to draw a causal connection between her pro-
tected activities and the Army’s adverse employment actions.
Hooven-Lewis’ first "charge" of discrimination occurred on Octo-
ber 7, 1994.3 (J.A. 448, 457: Pl.’s Statement of Material Facts to
3Hooven-Lewis had an appointment with Colonel Richard N. Boswell
on June 30, 1994 to discuss Hooven-Lewis’ feeling that Dr. Vahey was
requiring Hooven-Lewis to work outside of her job description and was
not accommodating Hooven-Lewis’ tremor. (J.A. 448, 455: Pl.’s State-
ment of Material Facts ¶ 74.) However, even if Hooven-Lewis’ state-
ments in that conversation rose to the level of an accusation of
discrimination, no action of reprisal or retaliation can be causally linked
to the conversation. Dr. Vahey was already requiring Hooven-Lewis to
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Which There is No Genuine Dispute ¶ 92.) Hooven-Lewis sought
EEO counseling and was interviewed over the telephone by Ms. Leti-
cia Velasquez. Hooven-Lewis is correct that the Court need not only
look upon a formal complaint filed with the EEO as "protected activ-
ity." See Armstrong v. Index Journal Co., 647 F.2d 441, 448 (4th Cir.
1981). Hooven-Lewis’ accusation of discrimination to Ms. Velasquez
at the EEO qualifies as a protected opposition to alleged discrimina-
tion. See id.; Balazs v. Liebenthal, 32 F.3d 151, 158 (4th Cir. 1994)
(holding that expressions of discrimination, even where not true, con-
stitute protected activity); 42 U.S.C. § 12203(a). Similarly, Hooven-
Lewis’ informal contacts with the EEO and informal complaints are
also protected activities if the accused person or entity knew about
them. See Armstrong, 647 F.2d at 448; Williams, 871 F.2d at 457
(indicating that employer must be aware of disclosure before he or
she can retaliate against it). However, Hooven-Lewis has failed to
draw a causal connection between these protected activities and the
course of events leading to changes in Hooven-Lewis’ job status and
to Hooven-Lewis’ ultimate removal from employment with the Army.
According to Hooven-Lewis, Dr. Vahey started requiring Hooven-
Lewis to work with live HIV viruses in the first week of June, 1994.
(J.A. 448, 455: Pl.’s Statement of Material Facts ¶¶ 69-70.) Hooven-
Lewis does not establish a causal link between this first supposedly
adverse employment action and any protected activity. The June,
work with unlysed materials, and Dr. Vahey merely continued to do this
for approximately the next three months, notwithstanding Hooven-
Lewis’ meeting with Boswell. (Id. at 455-56: ¶¶ 69-79; see also J.A. 507,
516: Declaration of Cheryl M. Hooven-Lewis ¶ 44 ("Boswell took no
corrective action").) Dr. Vahey’s throwing Hooven-Lewis out of Vahey’s
lab on August 23, 1994 is causally linked to Hooven-Lewis’ refusal to
work with unlysed materials as ordered by Dr. Vahey in early June, not
linked to the Boswell meeting of June 30, 1994. The June 30, 1994 meet-
ing did not seem to have any influence or effect on the changes of
employment position and status imposed on Hooven-Lewis. (J.A. 507,
516: Decl. of Hooven-Lewis ¶ 44 (indicating that Boswell took no
action).) Hooven-Lewis’ brief mentions the occurrence of the meeting,
but does not draw a causal connection to any actions of "reprisal."
(Appellant’s Reply Brief at 9.) Hooven-Lewis’ initial motion for sum-
mary judgment does not reference the meeting at all. (J.A. 414.)
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1994 action is the result of a difference of opinion about the need for
the accommodation and what Hooven-Lewis’ true duties were. It is
clear from Hooven-Lewis’ declaration and all of the evidence that Dr.
Vahey doubted the truthfulness of Hooven-Lewis’ claims of a physio-
logical hand tremor. (E.g., J.A. 507, 517: Declaration of Cheryl M.
Hooven-Lewis ¶ 50 (indicating that Vahey demanded permission to
communicate with Hooven-Lewis’ doctor); J.A. 237, 239: Proposed
Removal Memo.4) Dr. Vahey felt that Hooven-Lewis’ refusal to do
laboratory work handling hazardous substances was a flat refusal to
do her duties, and that this disrupted other workers and the efficiency
of the lab. (J.A. 211, 215: Declaration of Dr. Maryanne T. Vahey
¶ 11.) The June, 1994 change of Hooven-Lewis’ duties was the first
"adverse" action by Dr. Vahey and precipitated all others, and ulti-
mately led to Dr. Vahey’s evicting Hooven-Lewis from the lab on
August 23, 1994.
The manner in which Dr. Vahey executed the changes in Hooven-
Lewis’ status appear to be a result of personality conflicts. In May of
1994, Dr. Vahey wrote Hooven-Lewis an e-mail ordering Hooven-
Lewis to "come down here now!!!!!" and stated, "YOU ARE DRIV-
ING ME NUTS CHERYL!!!" (J.A. 664: cc-mail forwarded from
Hooven-Lewis to her husband). In her response to Dr. Vahey’s Pro-
posal of Removal, Hooven-Lewis indicated several instances where
Hooven-Lewis verbally disagreed with Dr. Vahey’s actions in the lab-
oratory with regard to laboratory procedures and other personnel.
(J.A. 242, 251-52: Response to Maryanne Vahey’s Proposed Removal
of Cheryl Hooven-Lewis.) After these disagreements, Dr. Vahey
began ordering Hooven-Lewis to perform inferior duties outside of
her job description and to handle unlysed viruses. (Id.) When
Hooven-Lewis protested, Dr. Vahey screamed at Hooven-Lewis, and
on more than one occasion responded, "‘[T]his is my lab and you do
exactly as I tell you to.’" (Id. 253-254.) These representations made
in Hooven-Lewis’ own pleading indicate that Dr. Vahey’s actions in
changing Hooven-Lewis’ duties, job description, and level of accom-
modation were a result of Hooven-Lewis’ confrontations with Dr.
4Yet another document indicates that Dr. Vahey exclaimed that
Hooven-Lewis’ tremor was all in her mind. (J.A. 280, 281: Statement of
Susan Loring ¶ 10.)
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Vahey in the lab. Personality conflicts are not actionable as retalia-
tion.
In short, the evidence demonstrates that the majority of events that
Hooven-Lewis alleges were acts of "reprisal" and "retaliation"
occurred before Hooven-Lewis’ October 7, 1994 contact with the
EEO. These events could not be retaliatory, because Hooven-Lewis’
contact with the EEO did not cause these acts of reprisal, but, instead,
the alleged acts of "reprisal" caused Hooven-Lewis to seek EEO
relief. The events and interactions between Hooven-Lewis and the
Army that preceded Hooven-Lewis’ initial contact with the EEO were
the ultimate cause of Hooven-Lewis’ reassignment of duties and
removal from civil employment with the Army. For these reasons, the
Court holds that Hooven-Lewis has not made out a prima facie case
for retaliation under the Rehabilitation Act. Therefore, summary judg-
ment on the Rehabilitation Act retaliation claim is proper.
III. The Whistleblower Protection Act Retaliation Claim
Hooven-Lewis argues that the decision of the MSPB dismissing the
WPA claim should be reversed as arbitrary and capricious. Hooven-
Lewis asserts that the MSPB did not make any factual findings, did
not detail the evidence upon which it relied, and did not discuss the
legal standards it applied in reaching its decision. Hooven-Lewis con-
tends that the statements she made to Dr. Loring, Colonel Burke, and
Colonel Holland were protected disclosures under the WPA, and that
she suffered reprisals as a result of making these disclosures. See 5
U.S.C. § 2302(b)(8)(A)(ii) (defining protected disclosures under the
WPA); Willis v. Dept. of Agriculture, 141 F.3d 1139, 1143 (Fed. Cir.
1998) (stating that for statements to be protected disclosures under the
WPA, they must be made to people in a position to remedy the prob-
lem). Hooven-Lewis contends that the short time between her whistle-
blowing activity and her disciplinary actions strengthens the argument
that the disciplinary actions were due to her protected activity. See
Williams, 871 F.2d at 457.
As with her other claims, Hooven-Lewis argues that the Army’s
proffered reason for her termination, that Hooven-Lewis was unable
to perform the duties of her position, is a pretext. Hooven-Lewis
asserts that the Army’s argument that she could not perform the duties
21 HOOVEN-LEWIS v. CALDERA

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of her position is false, because she can perform her duties commend-
ably with the accommodation of having others lyse active cells before
she works with the cells. See St. Mary’s Honor Center, 509 U.S. at
517; Wright, 505 U.S. at 296. The Army made the accommodation for
her for ten years, and only ceased doing so because of Hooven-Lewis’
whistleblowing. For these reasons, Hooven-Lewis asks this Court to
reverse the district court’s Opinion granting summary judgment
against Hooven-Lewis on the WPA claim.
The Army argues that the MSPB was neither arbitrary nor capri-
cious in dismissing Hooven-Lewis’ claim of retaliation under the
WPA. Most of Hooven-Lewis’ supposed whistleblowing were disclo-
sures made to Dr. Vahey about errors in Dr. Vahey’s data. As a matter
of law, disclosure of wrongdoing to the wrongdoer herself is not
whistleblowing. See Willis, 141 F.3d at 1143 (citation omitted). The
Army further contends that even if Hooven-Lewis’ disclosures to Col-
onel Burke were protected disclosures under the Act, Hooven-Lewis’
claim still fails because she cannot demonstrate that "the disclosure
was a contributing factor to the [adverse] personnel action taken."
Carr v. Social Sec. Admin., 185 F.3d 1318, 1322 (Fed. Cir. 1999).
The decision to remove Hooven-Lewis from the laboratory was made
several days before her August 30, 1994 disclosure to Colonel Burke.
Therefore, no causal connection between that decision and the disclo-
sure can be made.
In addition, the Army argues that even if the statements to Colonel
Burke resulted in Hooven-Lewis’ removal from federal service,
Hooven-Lewis’ WPA claim still fails, because no finding of reprisal
is made if an agency demonstrates that it would have taken the same
personnel action in absence of the protected disclosure. See id.; 5
U.S.C. § 1221(e)(2). After reviewing hundreds of pages of documents
in preparation for Hooven-Lewis’ hearing, the MSPB stated in its
Decision that the Army would have still removed Hooven-Lewis from
service because of her inability to perform the duties of her position.
See MSPB Initial Decision, n.12 (citing McCabe v. Dept. of the Air
Force, 62 M.S.P.R. 641, 645 (M.S.P.B. 1994), aff’d, 62 F.3d 1433
(Fed. Cir. 1995)). The Army asserts that, in its limited review of the
MSPB’s decision, the Court cannot find that this evidence-based esti-
mation was made arbitrarily and capriciously.
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This Court affirms the district court’s ruling upholding the MSPB’s
decision to dismiss Hooven-Lewis’ WPA claim. The Court holds that
the MSPB had sufficient evidence before it to dismiss Hooven-Lewis’
WPA claim and made a reasoned decision. The MSPB dismissed the
claim before Hooven-Lewis’ full hearing before the Board based on
a two-page memorandum by Hooven-Lewis. (J.A.: 674, 700: District
Court Opinion, at 27.) Although this memorandum was not presented
to this Court in the Joint Appendix, the record demonstrates that
Hooven-Lewis asserted in her memo that the Army retaliated against
her because of her disclosures to Dr. Vahey and Colonel Burke
regarding the use of erroneous data and the destruction of laboratory
protocols. Based on the manner in which Hooven-Lewis has detailed
the disclosures to this Court, and the space Hooven-Lewis used to do
so, it is easily conceivable that Hooven-Lewis could have provided
the MSPB in two pages all of the information necessary to render a
judgment as to whether the disclosures constituted whistleblowing
under the Act. In fact, Hooven-Lewis does not argue that the MSPB
grounded its decision on insufficient evidence, arguing only that
because the MSPB did not articulate in detail the basis of its decision
that the MSPB acted arbitrarily and capriciously. Hooven-Lewis does
not provide any argument as to why the MSPB’s decision that
Hooven-Lewis’ disclosures were not protected was arbitrary. (Appel-
lant’s Opening Brief at 26.) The reference to Hooven-Lewis’ WPA
claims in the MSPB’s decision reflects that the MSPB considered the
evidence before it and compared Hooven-Lewis’ submissions with
the requirements of the statute. (J.A. 89,107: MSPB Initial Decision
at 19 n.12.) Thus, there is no indication that the MSPB acted arbitrar-
ily and capriciously.
Moreover, the MSPB’s finding that Hooven-Lewis’ statements to
others were not protected disclosures is supported by the record. To
maintain a claim of retaliation under the WPA, Hooven-Lewis had to
establish (1) that she engaged in a whistleblowing activity by making
a protected disclosure under 5 U.S.C. § 2302(b)(8); and (2) based on
the protected disclosure, the Army took or failed to take a personnel
action as defined by 5 U.S.C. § 2302(a). See Willis, 141 F.3d at 1142.
Regarding the first factor, a "protected disclosure" is:
any disclosure of information by an employee or applicant
which the employee or applicant reasonably believes evi-
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dences a violation of any law, rule, or regulation, or gross
mismanagement, a gross waste of funds, an abuse of author-
ity, or a substantial and specific danger to public health or
safety.
5 U.S.C. § 2302(b)(8). An additional element to the first factor is that
the disclosure evidence an intent to raise an issue with a higher
authority who is in a position to correct the alleged wrongdoing. See
Willis, 141 F.3d at 1143; Carr, 185 F.3d at 1326 ("WPA is meant to
encourage disclosures to persons who may be in a position to act to
remedy it."). The second factor for a claim under the WPA is com-
mon to all actions for retaliation, and is in essence a requirement of
a causal connection. See, e.g., Causey, 162 F.3d at 803 (setting forth
elements of claim of retaliatory discharge); see also Willis, 141 F.3d
at 1143 (citing 5 U.S.C. 1221(e)(1)) (stating that an employee must
show by preponderance of evidence that protected disclosure was
made and was contributing factor in the personnel action).
The MSPB was clearly not arbitrary or capricious in finding that
Hooven-Lewis’ statements to Dr. Vahey about Vahey’s failure to
inform others of the lab errors and Dr. Vahey’s destruction of lab pro-
tocols did not constitute protected activity under the WPA. With
respect to Dr. Vahey, the first factor for demonstrating a whistle-
blower claim is absent: a protected disclosure. Hooven-Lewis’ state-
ments to Dr. Vahey about Vahey’s own wrongdoing did not evidence
an intent to disclose Dr. Vahey’s wrongdoing to an authority higher
than Dr. Vahey who could remedy the wrongdoing. See Willis, 141
F.3d at 1143; Carr, 185 F.3d at 1326. Criticism directed at the wrong-
doer herself is not whistleblowing. See Willis, 141 F.3d at 1143.
The MSPB was also not arbitrary or capricious in finding that
Hooven-Lewis could not demonstrate a WPA claim for her statements
to Colonel Burke. Although Hooven-Lewis’ statements to Burke
qualify as protected disclosures under the WPA, the evidence demon-
strates that adverse employment action was taken by Dr. Vahey and
Burke before the disclosures; therefore the disclosures could not have
been a contributing factor to the personnel actions. Dr. Vahey took
away Hooven-Lewis’ duties as laboratory manager in June of 1994.
Burke drafted the request that Hooven-Lewis be detailed out of
Retrovirology in August of 1994. Moreover, although Burke drafted
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the memo detailing Hooven-Lewis to other duties on the same day
that Hooven-Lewis told Burke of Dr. Vahey’s failure to accommodate
her tremor and showed Burke her notes detailing the lab errors, Burke
drafted the memo and showed it to Hooven-Lewis before Hooven-
Lewis showed him her notebooks. (J.A. 121, 133: MSPB testimony
of Col. Burke, Lines 16-19 (indicating that Burke showed Hooven-
Lewis the memo during Hooven-Lewis’ meeting with Burke, Vahey,
Boswell, and Mace); J.A. 618, 621: Burke Deposition, Lines 6-11
(indicating that Hooven-Lewis’ disclosures occurred after the memo
and the meeting).) Therefore, Burke made decisions precipitating
Hooven-Lewis’ removal from civil service employment before
Hooven-Lewis engaged in whistleblowing activity.
Although not addressed by the district court, and apparently not
addressed by the MSPB, Hooven-Lewis suggests on appeal that her
statements to Dr. Susan Loring constituted whistleblowing activity.
(Appellant’s Reply Brief at 4 ¶¶ 14-15.) Because this argument was
not raised before the MSPB, it is not properly before this Court. WPA
claims are usually first brought before the Office of Special Counsel,
and then appealed to the MSPB. See Willis, 141 F.3d at 1143. How-
ever, because this is a "mixed case" comprising WPA and RA claims,
it was brought before the MSPB and is now appealed to this Court.
See id.; J.A. 674, 688, 698: District Court Opinion at 15, 25 (and
accompanying citations). In the usual case, the MSPB will not con-
sider on appeal alleged protected disclosures where a claimant has
failed to raise the disclosures with the Office of Special Counsel. See
Willis, 141 F.3d at 1144 (citations omitted). Similarly, Hooven-Lewis
did not raise the issue of the alleged protected disclosures to Loring
before the MSPB and should not be able to raise them on appeal to
this Court.
Notwithstanding, if the Loring statements were considered by the
MSPB (or this Court), it would not have been arbitrary or capricious
for the MSPB to find that the statements to Loring were not protected
disclosures that contributed to the personnel actions against Hooven-
Lewis. The MSPB could reasonably find that Hooven-Lewis’ state-
ments to Loring did not rise to the level of protected disclosures. Dr.
Loring’s Statement evidences a friendly relationship in which
Hooven-Lewis shared with Dr. Loring personal details as well as
details about her work. (J.A. 280, 281; Statement of Susan Loring ¶ 8,
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¶¶ 9-14.) Loring states that when Hooven-Lewis first contacted Lor-
ing, it was to get Loring’s "professional opinion" about the potential
dangers of the errors discovered in the lab. (Id.: ¶ 13.) Consequently,
one could find that Hooven-Lewis’ statements to Loring "did not evi-
dence an intent to raise the issue with higher authorities who were in
a position to correct the alleged wrongdoing." Willis, 141 F.3d at
1143.
Moreover, Hooven-Lewis has provided no evidence of a causal
connection between the statements and the personnel actions taken
against Hooven-Lewis. In a case involving alleged violations of the
Age Discrimination in Employment Act, the Fourth Circuit relied on
Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d
653, 657 (4th Cir. 1998), to find that a plaintiff had not met the causa-
tion element for retaliation claims. See Causey, 162 F.3d at 803. The
Dowe court held that a lengthy time lapse between the employer
becoming aware of the claimant’s protected activity and the alleged
adverse employment action negated any inference that a causal con-
nection existed. 145 F.3d at 657. The court in Causey held that a 13
month interval was too long to establish causation absent further evi-
dence of retaliation. In this case, six months elapsed between Hooven-
Lewis’ disclosure to Dr. Loring and Dr. Vahey’s alleged reprisal of
Hooven-Lewis by withdrawing Hooven-Lewis’ lysing accommoda-
tion. (J.A. 280, 281-82: Loring Statement (indicating that Hooven-
Lewis spoke with Loring about the errors in Vahey’s data in Decem-
ber, 1993); J.A. 448, 455: Pl.’s Statement of Material Facts ¶¶ 69-70
(indicating that Vahey first withdrew the accommodation in the first
week of June, 1994).)5 A six month lag is sufficient to negate any
5In her opening brief, Hooven-Lewis states that Dr. Vahey stopped
accommodating Hooven-Lewis and took away Hooven-Lewis’ manage-
rial duties within a month of the disclosure to Dr. Loring. (Appellant’s
Opening Brief at 23.) Hooven-Lewis indicates that she made her first dis-
closure to Dr. Loring in May, 1994. (Id.) However, this is a different date
than that provided by Dr. Loring (J.A.: 280, 281: Loring Statement ¶ 13.)
Dr. Loring indicates that Hooven-Lewis first spoke to Dr. Loring about
the matter in December 1993. This date is in line with Hooven-Lewis’
assertion that she found the errors in the data in November of 1993.
(E.g., Appellant’s Opening Brief at 23.) Dr. Loring’s statement further
suggests that the first disclosure to Dr. Loring was in December 1993
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inference of causation. See Conner v. Schnuck Markets, Inc., 121 F.3d
1390, 1395 (10th Cir. 1997) (holding that four month lag between
protected activity and termination not sufficient to justify inference of
causation), cited in Causey, 162 F.3d at 803. Furthermore, Hooven-
Lewis presented no evidence that Vahey knew of Hooven-Lewis’ dis-
closure to Loring. Without knowledge of the "protected disclosure,"
the disclosure could not have been the cause of the alleged reprisals.
See Cline, 144 F.3d at 302 (indicating that the retaliator retaliated
based on knowledge of the protected activity); Williams, 871 F.2d at
457 (finding that plaintiff made prima facie case of retaliatory dis-
charge upon showing that she was fired after employer became aware
of the filing of a discrimination charge).
For these reasons, the Court holds that the MSPB’s findings were
neither arbitrary nor capricious, and the MSPB did not abuse its dis-
cretion. Therefore, the district court’s ruling granting summary judg-
ment for the Army on the WPA retaliation claim is affirmed.
CONCLUSION
The Court affirms the district court’s Opinion granting summary
judgment on all of Hooven-Lewis’ claims. Hooven-Lewis does not
have a disability under the RA because her hand tremor does not sub-
because Dr. Loring indicates that a few weeks after her first communica-
tion with Hooven-Lewis, Hooven-Lewis contacted her again to inform
Loring that Vahey was requiring Hooven-Lewis to destroy laboratory
documents. (J.A. 280, 282: Loring Statement ¶ 14.) Hooven-Lewis’
Amended Complaint indicates that the destruction of the documents
occurred in late winter of 1993, as stated by Dr. Loring. (Amended
Compl. ¶ 32.) In addition, Hooven-Lewis’ own recitation of facts sug-
gests that the Loring disclosure occurred in December 1993, shortly after
Hooven-Lewis discovered the errors and discussed the discovery with
Dr. Vahey. (J.A. 448, 454: Pl.’s Statement of Material Facts ¶¶ 56-60.)
However, regardless of when they occurred, Hooven-Lewis has pro-
vided no evidence that Vahey knew about the statements Hooven-Lewis
made to Loring. Therefore, Hooven-Lewis has not demonstrated a causal
connection between the statements and the personnel actions taken by
Vahey.
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stantially limit her in any major life activity. Hooven-Lewis’ ability
to work in laboratories handling non-infectious and non-hazardous
materials, and her ability to do administrative work, demonstrate that
she can still do work in her field. Therefore, Hooven-Lewis is not lim-
ited from work in general or in the class of jobs for which she is
trained. The evidence also demonstrates that the Army did not regard
Hooven-Lewis as disabled, because it believed that Hooven-Lewis
could do the particular work that she asserted that she could not do.
Moreover, the Army did not regard Hooven-Lewis as being unable to
perform the life activity of doing work in general because the Army
placed Hooven-Lewis in positions in the Logistics Division, the
library, and the Gastroenterology Department. Therefore, Hooven-
Lewis cannot make out a prima facie case of discrimination under the
Rehabilitation Act.
In addition, Hooven-Lewis has not made out a prima facie case of
retaliation for protected activities under the Rehabilitation Act.
Hooven-Lewis has not demonstrated a causal connection between any
protected activity and her transfer out of Retrovirology, or between
her protected activity and her removal from civil employment with
the Army.
Lastly, the MSPB’s decision dismissing the Whistleblower Protec-
tion Act claim is not per se arbitrary and capricious simply because
there was not a lengthy discussion of the bases of the MSPB’s deci-
sion. The Administrative Law Judge sitting on the MSPB reviewed
Hooven-Lewis’ two-page memorandum, which indicated the disclo-
sures that Hooven-Lewis believed were protected disclosures.
Although the ALJ made its decision before the three day hearing, the
ALJ’s reference in its decision to Hooven-Lewis’ claim under the
WPA evidences a consideration of the facts pertinent to the resolution
of the claim. Furthermore, detailed review of the record supports the
MSPB’s decision. Disclosures to the wrongdoer herself are not
whistleblowing, and the actions taken by Colonel Burke regarding Dr.
Vahey occurred before any disclosures to him. For these reasons, the
district court’s opinion is
AFFIRMED.
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