throbber
United States Court of Appeals
`for the Federal Circuit
`______________________
`
`ROBERT WESLEY SMITH,
`Petitioner
`
`v.
`
`GENERAL SERVICES ADMINISTRATION,
`Respondent
`______________________
`
`2018-1604
`______________________
`
`Petition for review of the Merit Systems Protection
`Board in No. AT-0752-17-0470-I-1.
`______________________
`
`Decided: July 19, 2019
`______________________
`
`JOHN THOMAS HARRINGTON, The Employment Law
`Group, PC, Washington, DC, argued for petitioner. Also
`represented by ROBERT SCOTT OSWALD.
`
`JESSICA R. TOPLIN, Commercial Litigation Branch,
`
`Civil Division, United States Department of Justice, Wash-
`ington, DC, argued for respondent. Also represented by
`LISA LEFANTE DONAHUE, ROBERT EDWARD KIRSCHMAN, JR.,
`JOSEPH H. HUNT.
`______________________
`
`Before WALLACH, TARANTO, and STOLL, Circuit Judges.
`
`

`

`2
`
`SMITH v. GSA
`
`STOLL, Circuit Judge.
`Mr. Robert Smith worked at the General Services Ad-
`ministration for nearly 30 years before GSA removed him.
`Mr. Smith appealed that decision to the Merit Systems
`Protection Board, asserting that the agency failed to show
`his actions warranted removal and that the agency had re-
`taliated against him for his repeated disclosure of gross
`mismanagement and waste.
`The Board agreed that Mr. Smith was a whistleblower
`and that his protected disclosures contributed to the
`agency’s decision to remove him. The Board nevertheless
`affirmed the agency’s decision. Without addressing evi-
`dence relevant to the agency’s motive to retaliate or its
`treatment of other similarly situated non-whistleblowers—
`legal error in itself—the Board ruled that because the
`agency had introduced strong evidence of misconduct, re-
`moval was justified. In doing so, the Board conflated two
`distinct inquiries: whether the agency’s penalty was rea-
`sonable and whether the agency would have imposed that
`same penalty absent Mr. Smith’s protected whistleblowing.
`This was error. The Board additionally erred in sustaining
`certain charges. Accordingly, we reverse those charges, af-
`firm others, and vacate the Board’s decision. We remand
`for it to address the merits of Mr. Smith’s whistleblower
`defense, as well as the agency’s chosen penalty, under the
`proper legal standards.
`BACKGROUND
`Mr. Smith began working at GSA in 1989. Over the
`course of his career, he worked in various realty and finan-
`cial management positions, eventually becoming a Senior
`Financial Advisor. For much of his career, Mr. Smith re-
`ceived positive performance evaluations and faced no dis-
`cipline. In each of his fiscal year evaluations from 2006
`through 2015, Mr. Smith received either “highly” or “fully
`successful” ratings, and in 2011, Mr. Smith received a Na-
`tional Achievement Award for Asset Management.
`
`

`

`SMITH v. GSA
`
`3
`
`Over time, Mr. Smith became concerned that GSA was
`under-collecting rent and ineffectively managing its assets.
`He began sending emails to the agency’s regional leader-
`ship describing these issues and advocating change. See,
`e.g., J.A. 818–19 (asserting region was “$47 million behind”
`in billing in April 2012), 822–956 (providing 134 pages de-
`tailing management failures in March 2014), 978–1039 (ar-
`guing agency should “[r]eview the consistency in which all
`regions have applied . . . national policies and procedures”
`in July 2014), 1943–44 (describing “[t]he Road to Ineffec-
`tive Management” in November 2014).
`As Mr. Smith continued to send these emails, his im-
`mediate supervisors began restricting his ability to corre-
`spond directly with upper management. In late 2014, his
`second-line supervisor informed him that sending such
`“message[s] to the Regional Commissioner was inappropri-
`ate.” J.A. 1940. And his then first-line supervisor wrote
`that because “the tone of many of your communications
`. . . is inappropriate” and “concerns have been raised re-
`garding the accuracy of [your] information”:
`[A]ny communication that you wish to transmit
`(verbally or electronically) to managers outside of
`the [group] must be approved by me before doing so.
`Please note that failure to comply with these in-
`structions may result in disciplinary action.
`J.A. 961 (first emphasis added); see also J.A. 1948 (reiter-
`ating “[a]ny communication that you wish to transmit (ver-
`bally or electronically) to managers outside of [standard
`management channels] must be approved by me before do-
`ing so”).
`In 2015, GSA reorganized, and Mr. Smith received a
`new first-line supervisor and a revised position description.
`Mr. Smith understood his new position description to elim-
`inate any communication restriction. Though his new su-
`pervisor reiterated that “your new Position Description
`does not supersede the communication instructions you
`
`

`

`4
`
`SMITH v. GSA
`
`received via e-mail on December 11 and 12, 2014 from
`[your previous supervisor],” J.A. 1932–33, Mr. Smith nev-
`ertheless sent another email to upper management in De-
`cember 2015. The 87-page document, titled “Performance
`Diagnostic: A Guide to Move the Region to Performance
`Sustainability,” identified areas of mismanagement and of-
`fered strategies to recapture lost rents and reduce ineffi-
`ciencies. J.A. 1848–1930. Additional emails followed in
`January and February 2016.
`In February 2016, Mr. Roman Augustus became
`Mr. Smith’s immediate supervisor. In March, he again in-
`structed Mr. Smith to “please communicate and coordinate
`with me via email prior to generating, compiling and for-
`warding any reports, direction, data requests or analytical
`narratives to the region.” J.A. 513. Shortly thereafter,
`Mr. Augustus proposed that Mr. Smith be suspended for
`his failure to follow his previous supervisors’ similar com-
`munication instructions. The agency imposed that suspen-
`sion in June 2016.
`Over the spring and summer of 2016, Mr. Smith’s and
`Mr. Augustus’s relationship became increasingly conten-
`tious. Mr. Augustus complained that Mr. Smith failed to
`timely forward documents, and Mr. Smith responded by
`email “[c]all me a liar—or just confront me with any mild
`infraction of your rules—I can handle it.” J.A. 1840. Dur-
`ing meetings, Mr. Smith challenged Mr. Augustus’s au-
`thority, stating, “[y]ou are my administrative supervisor,”
`“[y]ou cannot self-direct me,” “[d]on’t put regulations on
`me,” J.A. 371–72, “[y]ou’re not supposed to be giving me
`tasks,” and “I am next to you, not under you,” J.A. 378–79.
`In a letter, Mr. Smith complained to human resources that
`Mr. Augustus’s management approach amounted to “dic-
`tates or child-like amonmondisshments [sic].” J.A. 1614.
`And in another document, Mr. Smith urged agency officials
`that “moving forward, [Mr. Augustus] is prohibited from
`interfering with the duties, obligations, and authorities as
`promulgated in the [2015 revised position description].”
`
`

`

`SMITH v. GSA
`
`5
`
`J.A. 4. Mr. Augustus felt that on each of these five occa-
`sions, Mr. Smith had been disrespectful.
`Mr. Augustus responded by informing Mr. Smith that
`“such conduct will not be tolerated and may result in disci-
`plinary action.” J.A. 1840. He reprimanded Mr. Smith for
`failing to follow instructions regarding how and when tasks
`should be completed. And he issued a record of infraction,
`accusing Mr. Smith of violating GSA’s information technol-
`ogy (“IT”) policy by leaving his computer access card (“PIV”
`card) unattended in his laptop in his cubicle. Mr. Augustus
`did not acknowledge that Mr. Smith, a quadriplegic, had
`never removed the PIV card from his laptop because he was
`physically unable to do so.
`On September 14, 2016, Mr. Augustus proposed remov-
`ing Mr. Smith from his position. Mr. Augustus charged
`Mr. Smith with failure to comply with IT policy, failure to
`follow supervisory instructions, and disrespectful conduct
`towards a supervisor.1 The deciding official determined
`that “the reasons for [the] proposed removal fully support
`and justify” removal, and the agency removed Mr. Smith
`from his position. J.A. 1664.
`II
`Mr. Smith appealed to the Board, arguing that the
`charged conduct did not merit discipline and that the
`agency was retaliating against him for his whistleblowing.
`See 5 U.S.C. §§ 7511–15; 5 C.F.R. § 1201.3(a)(1). The Ad-
`ministrative Judge (“AJ”) agreed that Mr. Smith was a
`whistleblower because of his December 2015 “Performance
`Diagnostic” disclosure. The AJ further found that, based
`on the timing, a reasonable person could conclude that
`Mr. Smith’s disclosure contributed to the agency’s decision
`to remove Mr. Smith. Nevertheless, the AJ affirmed GSA’s
`
`1 A fourth charge, absence without leave, was not
`sustained by the Board and is not at issue on appeal.
`
`

`

`6
`
`SMITH v. GSA
`
`decision, concluding that the government had shown by
`clear and convincing evidence that it would have removed
`Mr. Smith regardless of his whistleblowing.
`The AJ began by considering the charges. The agency
`supported the charge of failure to comply with IT policy
`with a single specification that described Mr. Smith’s fail-
`ure to remove his PIV card from his laptop. The AJ found
`that Mr. Smith had notice of the IT policy and did not dis-
`pute that he failed to remove his PIV card from his laptop
`as required by that policy. Though it was undisputed that
`Mr. Smith could not physically remove his PIV card from
`his laptop, the AJ further found that Mr. Smith was not
`protected by the IT policy’s exception for persons with dis-
`abilities.
`The AJ also sustained the charge of failure to comply
`with supervisory instructions. GSA identified three inci-
`dents supporting the charge: that Mr. Smith had sent a
`short email on a weekend despite direction by Mr. Augus-
`tus not to work on weekends, and that Mr. Smith had twice
`failed to timely forward documents to Mr. Augustus in the
`manner instructed. The AJ found that in all three in-
`stances, Mr. Smith admitted both that he had received in-
`structions from Mr. Augustus and that he had not followed
`them.
`Similarly, the AJ sustained the charge of disrespectful
`conduct, which relied on the five previously discussed
`statements made by Mr. Smith
`to Mr. Augustus.
`Mr. Smith admitted to making each of the statements, and
`the AJ found that all five were “rude, discourteous, defiant,
`and/or challenging or undermining the authority of his su-
`pervisor, Roman Augustus.” J.A. 4.
`The AJ found an “obvious nexus” between the sus-
`tained charges and the efficiency of the service. J.A. 13.
`And though he had not sustained a fourth charge, the AJ
`nevertheless found that given the seriousness of the sus-
`tained charges and Mr. Smith’s prior suspension on similar
`
`

`

`SMITH v. GSA
`
`7
`
`grounds, the agency’s decision to remove Mr. Smith was
`not unreasonable.
`The AJ acknowledged that even though he had found
`the penalty reasonable, the agency’s decision could not be
`upheld if Mr. Smith proved his affirmative defense of whis-
`tleblower reprisal. The AJ found that Mr. Smith had met
`his burden of showing both that he was a whistleblower
`and that his statutorily protected disclosures contributed
`to GSA’s decision to remove him. But in two sentences, the
`AJ ruled that:
`[B]ased on the strength of the agency’s evi-
`dence . . . it proved by clear and convincing evi-
`dence that it would have taken the same personnel
`action (removal) absent any disclosure. Indeed, I
`find that the defiantly disrespectful misconduct de-
`scribed . . . alone would have justified his removal,
`especially in light of his previous suspension for
`similar misconduct.
`J.A. 21–22.
`The AJ’s decision became the final decision of the
`Board, see 5 C.F.R. § 1201.113, and Mr. Smith timely
`sought review in this court, see 5 U.S.C. § 7703. We have
`jurisdiction. 28 U.S.C. § 1295(a)(9).
`DISCUSSION
`By statute, we must “hold unlawful and set aside” ac-
`tions, findings, or conclusions of the Board if they are
`(1) arbitrary, capricious, an abuse of discretion, or other-
`wise not in accordance with law; (2) obtained without pro-
`cedures required by law, rule, or regulation having been
`followed; or (3) unsupported by substantial evidence.
`5 U.S.C. § 7703(c); see Cobert v. Miller, 800 F.3d 1340,
`1347–48 (Fed. Cir. 2015). We review the Board’s legal con-
`clusions de novo and its fact findings for substantial evi-
`dence. See Campbell v. Merit Sys. Prot. Bd., 27 F.3d 1560,
`1564 (Fed. Cir. 1994).
`
`

`

`8
`
`SMITH v. GSA
`
`I
`We first address the Board’s treatment of Mr. Smith’s
`whistleblower defense. Because the Board applied an in-
`correct legal standard and ignored relevant evidence, we
`vacate its decision.
`
`A
`Statute prohibits an agency from penalizing its em-
`ployees for whistleblowing. See 5 U.S.C. § 2302(b)(8). An
`employee who believes he has been subjected to illegal re-
`taliation must prove by a preponderance of the evidence
`that he made a protected disclosure that contributed to the
`agency’s action against him. See Whitmore v. Dep’t of La-
`bor, 680 F.3d 1353, 1367 (Fed. Cir. 2012). “If the employee
`establishes this prima facie case of reprisal for whistle-
`blowing, the burden of persuasion shifts to the agency to
`show by clear and convincing evidence that it would have
`taken ‘the same personnel action in the absence of such dis-
`closure.’” Id. at 1364 (quoting 5 U.S.C. § 1221(e)). If the
`agency does not show by clear and convincing evidence that
`it would have taken the same action absent the whistle-
`blowing, the agency’s penalty cannot be affirmed. See Siler
`v. Envtl. Prot. Agency, 908 F.3d 1291, 1298 (Fed. Cir. 2018).
`In determining whether the agency has carried its burden,
`we have instructed the Board to consider three nonexclu-
`sive 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 deci-
`sion; and [3] any evidence that the agency takes
`similar actions against employees who are not
`whistleblowers but who are otherwise similarly sit-
`uated.
`Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1323 (Fed. Cir.
`1999).
`
`

`

`SMITH v. GSA
`
`9
`
`B
`Here, the Board’s discussion of the Carr factors is all of
`two sentences:
`I further find based on the strength of the agency’s
`evidence that it proved by clear and convincing ev-
`idence that it would have taken the same personnel
`action (removal) absent any disclosure. Indeed, I
`find that the defiantly disrespectful misconduct de-
`scribed . . . alone would have justified his removal,
`especially in light of his previous suspension for
`similar misconduct.
`J.A. 21–22. While the first sentence states the correct legal
`standard, the Board did not provide any analysis of the
`Carr factors. Moreover, the second sentence applies an in-
`correct standard, averring that Mr. Smith’s misconduct
`alone justified the agency’s action. Contrary to the Board’s
`statement, the merits of a whistleblower defense do not
`turn on the strength of the agency’s evidence alone or on
`whether the misconduct justified removal. Those points
`speak to whether the agency met its burden to prove that
`misconduct occurred, discipline is warranted, and the cho-
`sen penalty is reasonable, factors the agency must show by
`preponderant evidence in every appeal from a disciplinary
`action. See Pope v. U.S. Postal Serv., 114 F.3d 1144, 1147
`(Fed. Cir. 1997); see also Hale v. Dep’t of Transp., 772 F.2d
`882, 885 (Fed. Cir. 1985).
`Where whistleblowing is at issue, however, the proper
`inquiry is not whether the agency action is justified; it is
`whether the agency would have acted in the same way ab-
`sent the whistleblowing. See Miller v. Dep’t of Justice,
`842 F.3d 1252, 1257 (Fed. Cir. 2016) (“The issue [in a whis-
`tleblower reprisal case] is whether substantial evidence
`supports the Board’s determination that the Government
`showed independent causation by clear and convincing ev-
`idence.”). “[T]he merits cannot be the determinative factor
`that there was no reprisal. A meritorious adverse action
`
`

`

`10
`
`SMITH v. GSA
`
`must be set aside where there is reprisal.” Siler, 908 F.3d
`at 1298–99 (quoting Sullivan v. Dep’t of the Navy, 720 F.2d
`1266, 1278 (Fed. Cir. 1983) (Nies, J., concurring)). Thus,
`the Board’s independent decision to sustain the disrespect-
`ful conduct charge—however strong the underlying evi-
`dence—did not eliminate Mr. Smith’s reprisal defense.
`And it does not excuse the Board from analyzing the entire
`record and determining whether the agency clearly and
`convincingly proved that it would have removed Mr. Smith
`even absent his whistleblowing, not merely that it could
`have justifiably done so. On remand, the Board must en-
`sure that the agency is held to its “high burden of proof.”
`See Whitmore, 680 F.3d at 1367 (quoting 135 Cong. Rec.
`H747–48 (daily ed. Mar. 21, 1989) (explanatory statement
`on Senate Amendment to S. 20)).
`C
`The Board further erred by failing to consider Carr fac-
`
`tors 2 and 3 when analyzing whether the agency clearly
`and convincingly proved that it would have removed
`Mr. Smith notwithstanding his whistleblowing. Though
`we have explained that Carr imposes no affirmative bur-
`den on the agency to produce evidence for each of the three
`factors, see Whitmore, 680 F.3d at 1374, the Board cannot
`ignore record evidence relevant to the existence and
`strength of any motive to retaliate or the treatment of sim-
`ilar employees. Rather, the Board must “provide an in
`depth review and full discussion of the facts to explain its
`reasoning.” Id. at 1368. This is especially true in a case
`such as this one, where the record contains ample evidence
`relevant to these factors.
`The Board should have considered the evidence rele-
`vant to the strength of the agency’s motive to retaliate.
`Mr. Smith made a number of disclosures, most of which the
`Board failed to address. See, e.g., J.A. 818–19 (asserting
`region was “$47 million behind” in billing in April 2012),
`822–956 (providing 134 pages detailing management
`
`

`

`SMITH v. GSA
`
`11
`
`failures in March 2014), 978–1039 (arguing agency should
`“[r]eview the consistency in which all regions have ap-
`plied . . . national policies and procedures” in July 2014),
`1943–44 (describing “the road to ineffective management”
`in November 2014), 1160–61 (requesting workload review
`in January 2016), 1988–95 (asserting need for workload re-
`form in February 2016). The agency introduced evidence
`that it had legitimate concerns regarding the accuracy and
`tone of these emails, which may cut against a finding of
`motive. But it is also true that management repeatedly
`threatened Mr. Smith with discipline if he continued to dis-
`close perceived mismanagement outside of his immediate
`reporting
`chain.2
`
`J.A.
`961
`(“[A]ny
`See
`
`
`
`Indeed, though Mr. Smith did not seek recovery
`2
`based on his supervisor’s communication restriction in this
`case, its breadth may independently violate the Whistle-
`blower Protection Act, which may in turn suggest a strong
`motivation on the part of the agency to silence Mr. Smith.
`See 5 U.S.C. § 2302(b)(8). The Act prohibits a “personnel
`action” against an employee because of any information
`disclosure by such employee which the employee reasona-
`bly believes evidences (i) a violation of any law, rule, or reg-
`ulation, or (ii) gross mismanagement, a gross waste of
`funds, an abuse of authority, or a substantial and specific
`danger to public health or safety. Id. The statute includes
`and protects “any” disclosure that an employee “reasonably
`believes” evidences misconduct or mismanagement. Id.
`§ 2302(b)(8)(A); Greenspan v. Dep’t of Veterans Affairs,
`464 F.3d 1297, 1305 (Fed. Cir. 2006). And “the implemen-
`tation or enforcement of any nondisclosure policy” is a pro-
`hibited “personnel action.” 5 U.S.C. § 2302(a)(2)(A)(xi).
`The agency’s order that any communication that Mr. Smith
`wished to transmit to managers outside of the group must
`be approved by a supervisor was a nondisclosure policy that
`
`

`

`12
`
`SMITH v. GSA
`
`communication . . . to managers outside of the [group]
`must be approved by me before doing so. Please note that
`failure to comply with these instructions may result in dis-
`ciplinary action.”). And though Mr. Smith’s work evalua-
`tions had been generally positive prior
`to his
`whistleblowing, his managers in fact suspended him and
`then placed him on a performance plan because of his com-
`munications and disclosures. Further, the record suggests
`that agency managers were unhappy with Mr. Smith and
`were embarrassed by his whistleblowing. In response to
`one of Mr. Smith’s disclosures, the deciding official replied
`to her colleagues:
`Oh my gosh! So, what is the status of the action
`with HR? We need to take action immediately!
`This is absolutely unacceptable . . . . I’m embar-
`rassed that he is representing [the group].
`J.A. 1987 (ellipsis in original). In another email, Mr. Au-
`gustus “urge[d] [Mr. Smith] . . . to avoid deviating from or
`distorting verifiable facts in an effort to advance your sub-
`jective motives.” J.A. 1843. The Board erred by failing to
`address this evidence.
`Similarly, the Board should have considered the
`agency’s failure to introduce evidence relevant to Carr fac-
`tor 3—treatment of non-whistleblowers who engaged in
`similar misconduct. Though Mr. Smith was punished for
`working over a weekend, the undisputed record indicates
`at least one of Mr. Smith’s colleagues completed weekend
`work on the same weekend as Mr. Smith. But the record
`does not reflect whether that colleague was penalized in
`any way. To the extent the agency failed to introduce evi-
`dence on how this employee or other similarly situated em-
`ployees were treated, Carr factor 3 cannot support the
`
`restricted Mr. Smith’s ability to make such communica-
`tions.
`
`

`

`SMITH v. GSA
`
`13
`
`agency. See, e.g., Siler, 908 F.3d at 1299 (holding that
`where there is “an absence of relevant comparator evi-
`dence, the third Carr factor cannot favor the government”);
`Miller, 842 F.3d at 1262 (“[T]he court may not simply guess
`what might happen absent whistleblowing. The burden lies
`with the Government.”); Whitmore, 680 F.3d at 1374
`(“Failure to [introduce comparator evidence] may be at the
`agency’s peril.”).
`
`D
`Accordingly, we vacate the Board’s whistleblower anal-
`ysis and remand for it to apply the appropriate legal stand-
`ard and consider the relevant evidence.
`II
`We next review the Board’s decision to sustain the
`charges against Mr. Smith, which we review for substan-
`tial evidence. See Long v. Soc. Sec. Admin., 635 F.3d 526,
`530 (Fed. Cir. 2011). To determine whether substantial ev-
`idence supports the Board, we must determine whether
`“considering the record as a whole, the agency’s evidence is
`sufficient to be found by a reasonable factfinder to meet the
`[agency’s] evidentiary burden.” See Leatherbury v. Dep’t of
`the Army, 524 F.3d 1293, 1300 (Fed. Cir. 2008) (quoting
`Bradley v. Veterans Admin., 900 F.2d 233, 234 (Fed. Cir.
`1990)). It is not enough that record evidence exists that, if
`“viewed in isolation, substantiate[s] the Board’s findings.”
`Universal Camera Corp. v. NLRB, 340 U.S. 474, 478, 488
`(1951). Instead, we set aside the Board’s decision if we
`“cannot conscientiously find that the evidence supporting
`that decision is substantial, when viewed in the light that
`the record in its entirety furnishes, including the body of
`evidence opposed to the Board’s view.” Id. at 488. “Any
`determination by [the Board] that is based on findings
`made in the abstract and independent of the evidence
`which fairly detracts from [its] conclusions is unreasonable
`and, as such, is not supported by substantial evidence.”
`
`

`

`14
`
`SMITH v. GSA
`
`Whitmore, 680 F.3d at 1376. We address each of the three
`sustained charges in turn.
`
`A
`First, the Board’s decision to sustain the charge of fail-
`ure to comply with IT policy lacks substantial evidence sup-
`port. The parties do not dispute that, to prove this charge,
`the agency was required to show that the employee failed
`to follow a proper, applicable policy. The agency asserted
`that Mr. Smith violated IT policies applicable to him when
`he failed to remove his PIV card from his laptop. In affirm-
`ing the agency’s charge, the Board cited evidence favorable
`to the agency’s position. It noted that the policy requires
`users to remove PIV cards from their laptops, that
`Mr. Smith was trained in the IT policy, and that Mr. Smith
`did not remove his PIV card.
`We conclude, however, that the record lacks substan-
`tial evidence to show that this policy was applicable to
`Mr. Smith. The relevant policy states that “[a]ny person
`with a disability that does not allow the individual to uti-
`lize a PIV card and laptop” is within the “groups of users
`[that] are exempt” from the requirement to use a PIV cre-
`dential. J.A. 1827 (emphasis added). The AJ held that this
`exemption applies only to employees unable to use a PIV
`card and a laptop. Based on his interpretation, the AJ con-
`cluded that because Mr. Smith was not facially exempt
`from the policy and further failed to request a special ex-
`emption, he failed to show that his supervisors condoned
`him leaving his PIV card in his laptop.
`We disagree with the AJ’s unreasonable interpretation
`of the policy. Moreover, the fact that Mr. Smith failed to
`request a special exemption from the IT policy does not re-
`solve the issue of whether his supervisors condoned his ac-
`tions, creating a de facto exemption. It is undisputed that
`Mr. Smith is a quadriplegic. It is undisputed that
`Mr. Smith’s supervisors were aware that he is a quadriple-
`gic. Oral Arg. at 19:57–20:40, http://oralarguments.cafc.
`
`

`

`SMITH v. GSA
`
`15
`
`(conceding
`uscourts.gov/default.aspx?fl=2018-1604.mp3
`supervisors “knew that [Mr. Smith] had challenges with
`dexterity” and “knew that he would have difficulty” com-
`plying with IT policy). It is undisputed that he cannot
`physically remove a PIV card. Until the summer of 2016,
`Mr. Smith had never been corrected by his supervisors for
`failing to remove his PIV card and accordingly, he believed
`himself to be exempt from the PIV IT policy because of his
`disability. J.A. 365–68 (stating second supervisor was
`aware of Mr. Smith’s inability to remove PIV card because
`the supervisor had assisted Mr. Smith in moving offices),
`436 (first supervisor agreeing she had never seen
`Mr. Smith remove a PIV card); Oral Arg. at 20:49–22:45
`(conceding agency introduced no evidence contradicting
`Mr. Smith’s testimony on these points). The Board failed
`to address this evidence. On this record, substantial evi-
`dence does not support the Board’s decision to sustain this
`charge, and we reverse the Board’s decision sustaining this
`charge.
`
`B
`Second, the Board’s decision to sustain the weekend
`work specification, offered by the agency in support of its
`failure to follow supervisory instructions charge, similarly
`lacks substantial evidence support. In sustaining the
`agency’s specification, the Board stated that Mr. Augustus
`had instructed Mr. Smith not to work over the weekend
`and that two days later, Mr. Smith nevertheless sent an
`email over the weekend. While each point is facially cor-
`rect, the Board’s analysis is defective. Proof of a failure to
`follow instructions charge requires the agency to show that
`an employee failed to follow a proper instruction, see Ham-
`ilton v. U.S. Postal Serv., 71 M.S.P.R. 547, 556 (1996), but
`the Board failed to discuss the propriety of Mr. Augustus’s
`instruction, despite facts that draw it into question. The
`agency introduced no formal policy forbidding weekend
`work, no evidence that other employees had been in-
`structed to not work on the weekend, and no supporting
`
`

`

`16
`
`SMITH v. GSA
`
`rationale for imposing this ban on Mr. Smith alone. Oral
`Arg. at 36:41–37:52. Moreover, it was undisputed that
`Mr. Smith had regularly worked over the weekend to
`timely complete work due to his health issues; that the
`email at issue was written during business hours and re-
`quired only minutes to complete over the weekend; and
`that he sent the email over the weekend only because an-
`other employee first sent him information over the week-
`end.3
` In
`light of the whole record, the Board’s
`determination is unsupported by substantial evidence. Ac-
`cordingly, we reverse the Board’s decision as to this speci-
`fication.
`We affirm the Board’s decision to sustain the remain-
`ing specifications of the failure to follow instructions
`charge. But because we have reversed the Board’s findings
`on one of the specifications underlying that charge, on re-
`mand, the Board must determine whether the charge as a
`whole may be sustained.
`
`C
`We also affirm the Board’s decision sustaining the dis-
`respectful conduct charge. Mr. Smith urges us to hold that
`the Board also erred in its consideration of the specifica-
`tions related to that charge, but for each, Mr. Smith merely
`argues that circumstances excused his disrespectful con-
`duct. See Pet’r’s Br. 30–37. Though, as discussed below,
`the Board must consider any mitigating circumstances in
`its penalty analysis, substantial evidence supports the
`Board’s decision to sustain the specifications themselves.
`See Webster v. Dep’t of the Army, 911 F.2d 679, 684
`(Fed. Cir. 1990) (affirming Board decision to sustain
`charges where findings were “undisputed by [petitioner],
`who admits to the conduct alleged but offers excuses”).
`
`
`3 The record does not indicate whether Mr. Smith’s
`coworker was similarly disciplined for his weekend work.
`
`

`

`SMITH v. GSA
`
`17
`
`III
`Finally, we consider the Board’s decision that the
`agency acted reasonably in removing Mr. Smith. In deter-
`mining the reasonableness of the penalty imposed by an
`agency, the Board considers the factors outlined in Douglas
`v. Veterans Administration, 5 M.S.P.B. 313 (1981). The
`penalty chosen by the agency must represent a responsible
`balancing of the relevant Douglas factors. Mr. Smith ar-
`gues that the agency’s analysis of the eleventh Douglas fac-
`tor, “mitigating circumstances surrounding the offense,”
`which include “unusual job tensions, personality prob-
`lems, . . . or bad faith, malice or provocation on the part of
`others involved in the matter,” id. at 332, was deficient and
`that the Board erred in affirming the agency’s penalty.
`We do not reach this specific argument. The Board did
`not sustain all of the charges and we have concluded that
`others are not supported by substantial evidence. We have
`also vacated the Board’s analysis of Mr. Smith’s whistle-
`blower defense. If, on remand, the Board concludes that
`the agency would not have removed Mr. Smith absent his
`whistleblowing, “the agency’s removal decision may not
`stand.” Siler, 908 F.3d at 1298, 1300 (“The Board has no
`discretion to affirm a penalty tainted by illegal reprisal,
`even if the agency’s penalty might otherwise have been rea-
`sonable.”); 5 U.S.C. § 7701(c)(2)(B). And if, on remand, the
`Board concludes otherwise, the Board must consider
`whether to mitigate the penalty in light of our reversal of
`certain charges. See, e.g., Hathaway v. Dep’t of Justice,
`384 F.3d 1342, 1353 (Fed. Cir. 2004).
`Accordingly, we vacate the Board’s decision as to the
`reasonableness of the penalty. See Wrocklage v. Dep’t of
`Homeland Sec., 769 F.3d 1363, 1371 (Fed. Cir. 2014). On
`remand, the Board must consider whether the penalty of
`removal may be sustained or whether remand to the
`agency is necessary to reassess the appropriate penalty. In
`addition, the Board must perform a thorough analysis of
`
`

`

`18
`
`SMITH v. GSA
`
`the mitigating circumstances identified by Mr. Smith—
`particularly that the statements underlying the disrespect-
`ful conduct charge were based on his belief that Mr. Augus-
`tus was acting contrary to Mr. Smith’s position description.
`See, e.g., Pet’r’s Br. 30–37. The Board should also consider
`the propriety of the breadth of Mr. Smith’s supervisors’
`communication bans in evaluating the reasonableness of
`any penalty. See, e.g., J.A. 961 (“[A]ny communication that
`you wish to transmit (verbally or electronically) to manag-
`ers outside of the [group] must be approved by me . . . .”
`(emphases added)), 513 (“[C]ommunicate

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