Christine D. Tomei v. Department of Education

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
04-3270
CHRISTINE D. TOMEI,
Petitioner,
v.
DEPARTMENT OF EDUCATION,
Respondent.
__________________________
DECIDED: November 5, 2004
__________________________
Before GAJARSA, Circuit Judge, PLAGER, Senior Circuit Judge, and LINN, Circuit
Judge.
PER CURIAM.
Christine D. Tomei (“Tomei”) seeks review of the Merit Systems Protection
Board’s (“Board”) final order denying Tomei relief pursuant to the Whistleblower
Protection Act of 1989 (“Whistleblower Protection Act”), Pub. L. 101-12, 103 Stat. 16.
Tomei v. Dep’t of Educ., No. DC-1221-02-0810-W-1 (M.S.P.B. May 30, 2004) (“Order”).
Because the Board’s decision was not arbitrary, capricious, an abuse of discretion or
contrary to law, and further was supported by substantial evidence, we affirm.

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BACKGROUND
Beginning February 14, 2000, the Department of Education (“agency”) employed
Tomei for a one-year probationary period as an Education Program Specialist, GS-
1720-13, in its Office of Postsecondary Education. On February 9, 2001, the agency
terminated Tomei. The stated reasons were (1) unacceptable conduct and (2)
deliberate refusal to comply with supervisory instructions. Tomei v. Dep’t of Educ., No.
DC-1221-02-0810-W-1, slip op. at 2 (M.S.P.B. May 23, 2003) (“Opinion”).
On September 17, 2002, Tomei filed an individual right of action appeal alleging
that the termination was in retaliation for disclosures protected under the Whistleblower
Protection Act. The Administrative Judge found that Tomei was a covered employee for
the purposes of appeal, that Tomei timely filed her appeal, and that the Board had
jurisdiction over the whistleblowing claim. Id. at 1.
The Administrative Judge bifurcated the appeal. The Administrative Judge
explained that “where the appellant makes non-frivolous allegations that she was
terminated in retaliation for making protected disclosures, an [Administrative Judge]
may properly hold an initial hearing limited to the question of whether the employee
would have been properly terminated absent the disclosures.” Id. at 4 (citing Dick v.
Dep’t of Veterans Affairs, 290 F.3d 1356, 1363-64 (Fed. Cir. 2002)).
The Administrative Judge held a hearing on March 20, 2003, the focus of which
was whether the agency could prove by clear and convincing evidence that it would
have terminated Tomei absent protected disclosures. Id. at 5. The Administrative
Judge listed factors it would consider: “[t]he strength of the agency’s evidence in
support of its action; the existence and strength of any motive to retaliate on the part of
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agency officials who were involved in the decision; and any evidence that the agency
takes similar actions against employees who are not whistleblowers but who are
otherwise similarly situated.” Id. at 7 (citing Carr v. Soc. Sec. Admin., 185 F.3d 1318,
1323 (Fed. Cir. 1999)).
Considering both testimonial and documentary evidence, id. at 9-23, the
Administrative Judge found that the agency showed by clear and convincing evidence
that it would have terminated Tomei absent the protected disclosures, id. at 23-25. The
Administrative Judge found that much of the testimonial and documentary evidence on
behalf of the agency’s position was not directly challenged and that “the appellant’s
unacceptable conduct and deliberate refusal to comply with supervisory instructions
warranted her probationary termination.” Id. at 23.
The Administrative Judge made credibility determinations and found the agency’s
version of Tomei’s misconduct at certain staff meetings to be more believable than
Tomei’s version. Id. at 24. The Administrative Judge also found that some of Tomei’s
emails were “inappropriate,” “lacked the necessary respect,” or “showed a lack of good
judgment.” Id. The Administrative Judge noted that Tomei was “disruptive, rude, and
intimidating, not only to her supervisor, but to other staff members, and even outside
parties.” Id. The Administrative Judge concluded that “[t]he strength of the
evidence . . . and the absence of any real motive to retaliate on the part of the agency
official who made the termination decision” supported his findings. Id. at 25. The Board
denied Tomei’s petition for review, and the Administrative Judge’s initial decision
became the final decision of the Board. Order at 1-2.
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Tomei timely appealed the Board’s final decision to this court. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2000).
DISCUSSION
The scope of our review in an appeal from a Board decision is limited by statute.
We must affirm the Board’s decision unless it was: “(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) (2000); Munson v. Merit Sys. Prot. Bd., 318
F.3d 1358, 1360 (Fed. Cir. 2003).
Tomei argues that (1) the Administrative Judge erred in applying evidentiary and
other procedural rules and (2) the Administrative Judge erred in concluding that Tomei
was “wrong” in blowing the whistle. Tomei requests that we overturn the Board’s order
and asks for reinstatement of status, expungement of her record, and back pay and
benefits per U.S. Office of Personnel Management standards. Additionally, Tomei asks
that we sanction the Administrative Judge for failing to uphold the Board’s mission and
discipline the agency lawyers for removing or altering evidence.
First, Tomei argues that the Administrative Judge erred in bifurcating the hearing
and not allowing her to present direct evidence surrounding her whistleblowing activity.
The Administrative Judge did not commit legal error. Administrative Judges have
discretion in determining the order of presentation of the issues in cases before them,
including the bifurcation of cases under the Whistleblower Protection Act. See Dick v.
Dep’t of Veterans Affairs, 290 F.3d 1356, 1363-64 (Fed. Cir. 2002).
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Tomei next challenges the Administrative Judge’s decisions to allow and exclude
certain witnesses. “A determination to allow or exclude witness testimony[, however,] is
within the sound discretion of the administrative judge.” Guise v. Dep’t of Justice, 330
F.3d 1376, 1379 (Fed. Cir. 2003). Here, the Administrative Judge did not abuse that
discretion. The agency put on witnesses to prove that it would have terminated Tomei
absent the protected disclosure. Tomei had the opportunity to cross-examine those
witnesses and testify herself. See Opinion at 15, 19-21, 23.
Tomei also challenges several evidentiary rulings. We review evidentiary
decisions for abuse of discretion, McEnery v. Merit Sys. Prot. Bd., 963 F.2d 1512, 1514
(Fed. Cir. 1992), and find no abuse here. The focus of the March 20, 2003 hearing was
the issue of whether the agency would have terminated Tomei absent the protected
disclosures. Direct evidence regarding Tomei’s whistleblowing activity was irrelevant to
that issue. What was relevant was Tomei’s conduct during her employment. To the
extent Tomei contends that witnesses testifying on that issue were biased because of
Tomei’s whistleblowing, Tomei had the opportunity to bring out that bias on cross-
examination.
Finally, Tomei argues that the Administrative Judge erred in concluding that she
was “wrong” in blowing the whistle. Tomei, however, misinterprets the Administrative
Judge’s determination. The Administrative Judge concluded that there was clear and
convincing evidence that the agency would have terminated Tomei absent the protected
disclosure. We can review this conclusion only to determine whether there was
substantial evidence to support it. 5 U.S.C. § 7703(c) (2000).
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Substantial evidence means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. Propellex Corp. v. Brownlee, 342 F.3d
1335, 1338 (Fed. Cir. 2003). “Clear and convincing evidence” is “evidence which
produces in the mind of the trier of fact an abiding conviction that the truth of a factual
contention is ‘highly probable.’” Price v. Symsek, 988 F.2d 1187, 1191 (Fed. Cir. 1993)
(quoting Buildex, Inc. v. Kason Indus., Inc., 849 F.2d 1461, 1463 (Fed. Cir. 1988)).
“Suspicion and speculation . . . do not rise to the level of clear and convincing
evidence.” Hageny v. United States, 570 F.2d 924, 937 n.16 (Ct. Cl. 1978).
The agency put on evidence that absent the protected disclosures it would have
terminated Tomei because of her (1) unacceptable conduct and (2) deliberate refusal to
comply with supervisory instructions. The Administrative Judge focused his conclusions
on the extensive testimonial evidence of Tomei’s conduct during staff meetings; her
documented emails to supervisors, peers, and outsiders; and testimonial evidence
regarding her one-on-one interactions with others. See Opinion at 23-25. The
Administrative Judge made credibility determinations. Id. at 24.
Reviewing the record, there is such evidence as a reasonable mind might accept
as adequate to support the conclusion that Tomei’s unacceptable conduct would have
caused the agency to terminate her probationary employment absent the protected
disclosure. A reasonable mind could find that there was solid evidence—not merely
that leading to speculation—that the agency would have terminated Tomei for this
reason alone. Thus, substantial evidence supports the Administrative Judge’s
conclusion.
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CONCLUSION
Because the Board’s decision was not arbitrary, capricious, an abuse of
discretion or contrary to law, and further was supported by substantial evidence, we
affirm. Moreover, because sanctions against the Administrative Judge and discipline of
the agency lawyers are not warranted on the record before us, Tomei’s request for such
action is denied.
04-3270 7

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