Fake Whistleblower Robert MacLean - Fired Air Marshal - TSA Agency Response - June 1, 2006

8/6/2019 Fake Whistleblower Robert MacLean - Fired Air Marshal - TSA Agency Response - June 1, 2006

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UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARDWESTERN REGIONAL OFFICE

)ROBERTJ.MACLEAN, )Appellant, ))

v. ))DEPARTMENT OF HOMELAND SECURITY, )TRANSPORTATION SECURITY )ADMINISTRATION, )Agency. )

-------------------------------)AGENCY RESPONSE

DOCKET NUMBER:SF-0752-06-0611-I-l

ADMINISTRATIVEJUDGE:Philip D. Reed

June 1,2006

The Transportation Security Administration (TSA or Agency) submits thisAgency Response to this Appeal ofRobert J. MacLean (Appellant) to the u.S. MeritSystems Protection Board (Board).I. INTRODUCTION AND SUMMARY

Appellant was employed as a Federal Air Marshal (FAM or Civil AviationSecurity Specialist), FV-1801-H, beginning October 14,2001. Agency File (AF), Tab4(U) at 1. FAMs are armed undercover agents deployed on u.S. airlines and authorizedto use deadly force to thwart another 9-11 terrorist attack. AF, Tab 4(T) at 2-3.

Throughout Appellant's entire employment as a F AM, information concerning the

deployment ofFAMs constituted Sensitive Security Information (SSI) and, unlessauthorized, could not be disclosed to a party without a "need to know." AF, Tabs 4(B),4(D), 4(L), 4(M), 4(N), 4(R), 4(V), and 4(W). By his own admission, Appellantdisclosed to a journalist, on or about July 29,2003, that all RON [Remain Overnight]


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missions up to August 9, 2003 would be cancelled. AF, Tab 4(1) at 11. He did not haveauthorization to make this disclosure. See generally, id.; also AF, Tabs 4(A) and 4(G).In so doing, Appellant created a systemic vulnerability in our nation's civil aviationsystem because, in turn, MSNBC disclosed this SSI to report to the public and terroristsalike that F AMs were "pulled from key flights." AF, Tab 4(J) at 17.

During the investigation into his misconduct, Appellant expressed no regret orremorse. AF, Tab 4(1) at 13. The Agency issued Appellant a notice ofproposed removalfrom his position of Federal Air Marshal on September 13,2005 (AF, Tab 4(G)), and inaccordance with TSA Resource Management Letter 752-1 regarding performance andconduct problems. AF, Tab 4(Q). Appellant was removed from his position on April 11,2006, for the unauthorized disclosure ofthis SSI. AF, Tab 4(A).

The Agency respectfully requests that the Board uphold the Appellant's removalbecause (1) the charges are supported by a preponderance of the evidence; (2) the penaltyof removal promotes the efficiency of the service and is within the realm ofreasonableness; and (3) Appellant can not prove any of his affirmative defenses.II . STATEMENT OF FACTS

A. Procedural History of CaseOn October 14, 2001, TSA appointed Appellant to the position ofFederal Air

Marshal (Civil Aviation Security Specialist). AF, Tab 4(U). After the issuance of a June16,2005 report of investigation (AF, Tab 4(J)), the Agency issued a notice ofproposedremoval on September 16,2005, based on Appellant's unauthorized disclosure ofSensitive Security Information. AF, Tab 4(G). The Agency also brought other chargesregarding Appellant's unauthorized media appearance and release of other information to

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the media. Id. Appellant was subsequently placed on paid administrative leave. AF, Tab4(H).

The proposal notice provided Appellant ten calendar days to respond orally and inwriting to the deciding official, Frank Donzanti, Special Agent in Charge (SAIC) of theLos Angeles field office. AF, Tab 4(0). Appellant requested an extension of time toreply, which the Agency granted. AF, Tab 4(E). Through his representative, Appellantprovided an oral response on October 14, 2005 and a written response, dated October 17,2005. AF, Tab 4(C). Appellant admitted to making the subject disclosure but felt hisdisclosure was speech protected by the First Amendment. Id. at 3.

In a letter dated April 10, 2006, after considering Appellant's responses, SAICDonzanti decided to terminate Appellant's employment effective April 11, 2005. AF,Tab 4(A). This Appeal followed.

Prior to the filing ofthis Appeal, on February 23, 2006, the Agency received aformal complaint of discrimination on the basis ofAppellant's alleged disability. AF,

Tab 3(B). Although Appellant did reference the proposed removal in his EEO formalcomplaint (id.), the Agency has not yet accepted any issues for investigation, and it is notyet clear whether the EEO complaint will encompass the removal action, which is thesubject of this Appeal. AF, Tab 3(A).

B. Factual BackgroundOn October 23, 2001, Appellant received written notice that an individual may be

removed from the position ofFederal Air Marshal for the "[u]nauthorized release ofsecurity-sensitive or classified information." AF, Tab 4(T).

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Sensitive Security Information (SSI) is a specific category of information that

requires protection against disclosure. AF, Tab 4(N). While the federal regulationsregarding the protection of SSI have been renumbered, at all relevant times herein,information regarding the deployment ofFAMS always constituted SSI. AF, Tabs 4(B),4(D), 4(L), 4(M), 4(N), 4(R), 4(V), and 4(W). Only covered parties within the meaningof the SSI regulations may receive SSI; such parties are those with a "need to know" forpurposes of carrying out transportation security duties or supervising those who carry outtransportation security duties, for example. AF, Tab 4(N) at 2.

Appellant received training regarding the protection of SSI, both prior to andduring his assignment to the Las Vegas field office. See generally AF, Tabs 4(T) and4(S). As a FAM, Appellant's official duties required that he receive and handle SSI onan everyday basis. See AF, Tab 4(T) at 2-3.

At Appellant's request, he transferred to the Los Angeles field office, effectiveOctober 17, 2004. AF, Tab 4(K). The Agency completed an investigation intoAppellant's unauthorized media appearance on NBC Nightly News while Appellant wasassigned to this duty station. AF, Tab 4(1). During the investigation, Appellant hadgiven the investigator a July 29,2003, news article by MSNBC correspondence BrockMeeks, titled "Air Marshals pulled from key flights." AF, Tab 4(1) at 11. Appellant thenadmitted that:

For the July 29,2003 article, I informed Brock Meeks that all LasVegas FAMS were sent a text message to their government-issuedmobile phones that all RON [Remain Overnight] missions up toAugust 9th would be canceled.

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Appellant did not have authorization to disclose any SSI to a party without a

"need to know," as defined by the SSI regulations. AF, Tabs 4(A) and 4(G).c. Legal FrameworkOn November 19, 2001, following the terrorist attacks of September 11, Congress

passed the Aviation and Transportation Security Act (ATSA), Public Law 107-71, 115Stat. 597, and created TSA to protect the nation's commercial civil air transportationsystem. Section 114(n) ofTitle 49, United States Code, as added by ATSA 101(a),applies the personnel system established by the Federal Aviation Administration (FAA),under 49 U.S.C. 40122, to TSA non-screener employees. Under this personnel system,the "provisions of title 5 shall not apply," except in specifically enumeratedcircumstances. 49 U.S.C. 40122(g)(2).

Congress required TSA to apply the FAA personnel system, under 49 U.S.C. 40122, to non-screener employees, except to the extent the Under Secretaryl modifiesthe system for TSA consistent with 49 U.S.C. 40122. ATSA 101(a) added 49 U.S.C. 114(n), which states:

PERSONNEL MANAGEMENT SYSTEM - The personnel managementsystem established by the Administrator of the Federal AviationAdministration under section 40122 shall apply to employees of theTransportation Security Administration, or, subject to the requirements ofsuch section, the Under Secretary may make such modifications to thepersonnel management system with respect to such employees as theUnder Secretary considers appropriate, such as adopting aspects ofotherpersonnel systems of the Department ofTransportation.ATSA, Public Law 107-71, 115 Stat. 597, 101 (a)(emphasis added).2

1 Based on the Agency's transfer to the Department ofHomeland Security on March 1, 2003, thetitle of "Under Secretary" has been changed to "Administrator."2 The arguments presented herein are based on ATSA. The Agency is not relying on theHomeland Security Act, Public Law 107-296, 116 Stat. 2135, which allows the Department ofHomeland Security to establish its own personnel system. Such a system has not been finalizedand does not apply to this case.

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Title 49, section 40122(g), exempted the FAA from the provisions ofTitle 5,

except for a few delineated sections:(g) Personnel management system.

(1) In general. In consultation with the employees of theAdministration and such non-governmental experts in personnelmanagement systems as he may employ, and notwithstanding theprovisions of title 5 and other Federal personnel laws, the Administratorshall develop and implement, not later than January 1, 1996, a personnelmanagement system for the Administration that addresses the uniquedemands on the agency's workforce. Such a new system shall, at aminimum, provide for greater flexibility in the hiring, training,compensation, and location ofpersonnel.

(2) Applicability of title 5. The provisions of title 5 shall not applyto the new personnel management system developed andimplemented pursuant to paragraph (1), with the exceptionof--

(A) section 2302(b), relating to whistleblower protection, includingthe provisions for investigation and enforcement as provided inchapter 12 of itle 5;(B) sections 3308-3320, relating to veterans' preference;(C) chapter 71, relating to labor-management relations;(D) section 7204, relating to antidiscrimination;(E) chapter 73, relating to suitability, security, and conduct;(F) chapter 81, relating to compensation for work injury;(G) chapters 83-85, 87, and 89, relating to retirement,unemployment compensation, and insurance coverage; and(H) sections 1204, 1211-1218,1221, and 7701-7703,relating to the Merit Systems Protection Board.

(3) Appeals to Merit Systems Protection Board. Under the newpersonnel management system developed and implementedunder paragraph (1), an employee of the Administration maysubmit an appeal to the Merit Systems Protection Board andmay seek judicial review of any resulting final orders ordecisions ofthe Board from any action that was appealable tothe Board under any law, rule, or regulation as ofMarch 31,1996.

(4) Effective date. This subsection shall take effect on April 1,1996.

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49 U.S.c. 40122(g) (emphasis added).

This provision was first enacted in 1996. Department ofTransportation andRelated Agencies Appropriations Act for Fiscal Year 1996, Pub. L. No. 104-50 347,109 Stat. 436, 460 (1995), as amended by Pub. L. No. 104-122, 110 Stat. 876 (1996),reprinted in 49 U.S.C. 106 Note (DOT Appropriations Act). In April 2000, theWendell H. Ford Aviation Investment and Reform Act for the 21st Century, Pub. L. No.106-181 (the Ford Act), was enacted, amending the DOT Appropriations Act andcodifying this section at 49 U.S.C. 40122(g).

Because 49 U.S.C. 40122(g)(2) fails to list 5 U.S.C. chapter 75 as one of thestatutory provisions that apply to the Agency, the Agency does not have to show that itcomplied with the requirements under 5 U.S.C. 7513. Rather, Section 40122(g)(2)(H)indicates that 5 U.S.C. 7701 applies to the Agency. Section 7701 (a) requires only ahearing and the right to be represented in an appeal over which the Board has jurisdictionbut does not include the statutory procedural rights that an agency is required to afford anemployee.

Section 7701(c)(I)(B) p r o v ~ d e s that the agency's decision will be sustained onlyif supported by a preponderance of evidence. Section 7701 (c)(2) further provides that anagency's action will not be sustained if the employee shows (1) harmful error in theapplication of the agency's procedures in arriving at such decision; (2) the decision wasbased on a prohibited personnel practice as described in 5 U.S.C. 2302(b); or (3) thedecision was not in accordance with the law.II

II

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1. TSA Interim Policy Addressing Performance and Conduct

Problems is a modification of the FAA PersonnelManagement System as authorized by ATSA, 49 U.S.C. 114(n).

As allowed by ATSA, TSA issued TSA Interim Policy Addressing Performanceand Conduct Problems No. 752-1. AF, Tab 4(Q). This directive constitutes amodification to the personnel management system as authorized by ATSA, 49 U.S.C. 114(n). Id. at 2. This modification specifically provides appeal and grievance rights forTSA employees and lists the employees and actions that are covered, as well as those thatare not covered, for purposes of appeal rights to the Board. Id. at 10.

This Agency policy authorizes removals "for such cause as will promote theefficiency of the service." Id. at 4. The removal action requires a nexus between off dutyconduct and the mission and/or effective operation ofTSA. Id. In the case of criminalactivity or other egregious misconduct, a nexus may be presumed. Id.

Section 9(d) of the policy describes a two-step process requiring the issuance of aproposal and a final written decision for adverse actions, including removals. Id. at 7-8.The notice ofproposed adverse action must include,

The charge(s) and specification(s) for each charge, and describe theevidence that supports the charge(s).The proposed penalty.A discussion of any aggravating factors that wereconsidered in determining the proposed penalty.

The policy also provides employees with the right to present an oral and/orwritten reply to the proposal within seven calendar days. Id. at 8. Finally, the policy

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provides that the deciding official must be a higher level official in the employee's chainof command than the proposing official. Id.III. ARGUMENT

A. Appellant's Removal Must be Sustained under 5 U.S.C. 7701.Section 7701 (c) provides two standards for the Board to apply in deciding this

case. First, Section 7701 (c)(1)(B) provides that the Agency's decision shall be sustainedonly if it is supported by a preponderance of the evidence. Second, Section7701(c)(2)(A) further provides that the Agency's decision may not be sustained if theemployee shows harmful error in the application of the Agency's procedures in arrivingat such decision.

1. The Agency's decision is supported by preponderant evidence.The Agency's decision to remove Appellant is supported by a preponderance of

the evidence. A preponderance of the evidence is defined as ''the degree of relevantevidence that a reasonable person, considering the record as whole, would accept assufficient to find that a contested fact is more likely true than untrue." 5 C.P.R. l201.56(c)(2); Sansom v. Office ofPersonnel Management, 62 M.S.P.R. 560, 563,review dismissed, 36 F.3d 1115 (Fed. Cir. 1994) (Table).

In this case, Appellant admitted to the underlying facts comprising themisconduct. AF, 4(C) at 3. He made an unauthorized disclosure to a journalist regardingthe temporary cancellation ofovernight PAM missions: that "Las Vegas F AMS weresent a text message to their government-issued mobile phones that all RON [RemainOvernight] missions up to August 9th would be canceled." AF, 4(1) at 11. Appellant,however, challenges whether the information that he divulged actually constituted

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Sensitive Security Information. Appeal, Attachment to Question 30 at 5. Appellantasserts that he did not consider the information to be SSI because the text message, inwhich the information appeared, apparently failed to include an SSI warning. Id.Appellant also argues that he did not reveal any information about FAM deployment but"simply alerted the public to the discontinuation ofRON missions." Id.

Appellant's arguments are without merit and do not excuse his egregiousmisconduct. Appellant's unauthorized disclosure ofSSI information directly led to theJuly 29,2003, news article that discusses how "Remain Overnight" FAM missionsinvolved cross-country flights filled to capacity with aviation fuel, and that from August1 to August 9, 2003, F AM coverage on such flights would be cancelled. AF, Tab 4(1) at17. In light of the specificity of the information and the timing of its disclosure,Appellant undoubtedly divulged information regarding F AM deployment - informationprotected as SSI. See AF, Tabs 4(B), 4(D), 4(L), 4(M), 4(N), 4(R), 4(V), and 4(W).

Moreover, the Code ofFederal Regulations sets forth the categories ofinformation constituting SSI. Tab 4(B), 4(D), 4(L), 4(M), 4(R), 4(V), and 4(W). Whetherinformation is marked SSI does not change the characterization of the information. See,id. According to TSA policy, ifSSI loses its marking, the recipient of the SSI isobligated to place the SSI marking and inform the sender of its omission. AF, Tab F(N)at 2.

As a F AM, Appellant received training regarding the protection of SSI. Hereceived and handled SSI since his appointment on October 14, 2001, and thencontinuously thereafter because his daily deployment schedule was SSI. See generally

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AF, Tabs 4(T) and 4(S). It is incredible for Appellant to argue that he did not understandthat the temporary cancellation of overnight FAM missions was SSI.

Finally, the Agency notes that, although the evidence supports a finding thatAppellant intentionally divulged SSI information without authorization, the Agency doesnot need to prove intent because it is not an element of the charged misconduct. See e.g.,Hamilton v. U.S. Postal Service, 71 M.S.P.R. 547, 555-57 (1996) (holding that a chargeof failure to follow instructions does not turn on proofof intent). Similar to charges offailure to follow instructions, the unauthorized disclosure of SSI does not tum on proofofintent; therefore, it is not an element of the Agency's burden ofproof. Rather, proofofintent, which does exist in this case, is relevant to the penalty determination. Id. (holdingthat if an Agency proves that an employee's failure to follow instructions was intentionalrather than merely negligent, then it is free to use that fact as an aggravating factor in thepenalty selection.)

Therefore, because Appellant admits to the underlying facts ofhis misconduct,and because his excuses are unbelievable and unacceptable, the Agency has profferedpreponderant evidence to sustain the reason and specifications at issue in this case.

2. The Appellant has failed to show harmful error.The Board defines harmful error as "error by the agency in the application of its

procedures that is likely to have caused the Agency to reach a conclusion different fromthe one it would have reached in the absence or cure of the error." 5 C.F.R. 1201.56(c)(3)(emphasis added). The burden is upon Appellant to show that the errorwas harmful, i.e., that it caused substantial harm or prejudice to his rights. rd.

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The Board has held that harmful error cannot be presumed; an agency error is

harmful only where the record shows that the procedural error was likely to have causedthe agency to reach a conclusion different from the one it would have reached in theabsence of the error. Kimm v. Dep't ofTreasury, 64 M.S.P.R. 198,208 (1994); Scott v.Dep't of Justice, 69 M.S.P.R. 211, 242 (1994) (Reversal of an action is warranted onlywhere a procedural error, whether regulatory or statutory, is likely to have had a harmfuleffect upon the outcome of the case before the agency.). The burden, however, is onAppellant to prove harmful error by a preponderance of the evidence, which he has notshown here. 5 C.F.R. 1201.56(b)(1) and (c)(3); Scott, 69 M.S.P.R. at 242.

In this case, although Appellant alleges that the delay in proposing and decidinghis removal was unreasonable and that he was prejudiced because the delay lessened hisability to find witnesses whose memories have not faded, he has not identified anyAgency procedure that was not followed by the Agency. The Agency's policy does notrequire any specific timeframe in imposing its two-step disciplinary process; except, ofcourse, for the 15-day notice period, but that was followed in this case. Moreover, theAgency's policy provides for the placement of an employee on administrative leave, andaccordingly, Appellant was placed in a paid non-duty status until SAIC Donzanti madethe decision on Appellant's proposed removal.

In this case, the Agency followed its procedures in removing the Appellant fromfederal service when it issued a proposal more than 15 days before any effective date ofthe proposed removal action and gave Appellant the opportunity to respond. AF, Tab4(G), 4(E). The deciding official sustained the charges and utilized the Agency policy to

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determine that the penalty of removal was warranted and for the efficiency of the service.AF, Tab 4(A).

In sum, the Agency followed all its procedural requirements in this removalaction, and as a result, Appellant cannot allege that there was any harmful proceduralerror.

B. Because Appellant's Misconduct Was Not Speech Protected by theFirst Amendment, Removal was Permissible and Within the Realm ofReasonableness.Appellant also alleges that his misconduct is protected as First Amendment

speech and thus, according to Appellant, no disciplinary measure is warranted in thiscase.

The u.s. Supreme Court reiterated the constitutional analysis for public employeespeech in its latest decision, Garcetti v. Ceballos, 547 U.S. __ May 30,2006):

The first [inquiry] requires determining whether the employeespoke as a citizen on a matter ofpublic concern. If the answer isno, the employee has no First Amendment cause of action based onthis or her employer's reaction to the speech. Ifthe answer is yes,then the possibility of a First Amendment claim arises. Thequestion becomes whether the relevant government entity had anadequate justification for treating the employee differently thanany other member of the general public. This considerationreflects the importance of the relationship between the speaker'sexpressions and employment. A government entity has broaderdiscretion to restrict speech when it acts in its role as employer, butthe restriction it imposes must be directed at speech that has somepotential to affect the entity's operations.

Garcetti, 547 U.S. at _ ; slip opinion at p. 7.In this case, Appellant argues that because he made the subject disclosure to the

media while off-duty, his speech was a matter ofpublic concern. While it appears thatAppellant is attempting to "constitutionalize the employee grievance," the Agency here

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did not violate Appellant's First Amendment rights because, without question, hisdisclosure ofSSI affected TSA's ability to operate efficiently and effectively. SeeGarcetti, at p. 7-8 ofthe slip opinion.

When Appellant divulged SSI about the (non)deployment ofFAMs on overnightmissions from August 1-9, 2003, he created a systemic vulnerability in our civil aviationsystem. As a direct result of this unauthorized disclosure, the public, including terrorists,became aware - in advance - that cross-country flights would fly without the protectionsofFAMs. See AF, Tab 4(1) at 17. This disclosure posed a significant security risk that,when balanced against any First Amendment right enjoyed by Appellant, tips heavily inthe Agency's favor and allows it to respond to such speech with appropriate action. See,

United States v. Kobriti, 307 F.Supp.2d 891 (2004) ("There is no First Amendmentright to have confidential, sealed or classified information leaked to the public.").

As such, Appellant's speech is not protected speech but misconduct for which theAgency properly removed him from his position. According to its policy, the Agencymay take any such action to promote the efficiency of its service. AF, 4(Q) at 4.

The Board will not disturb an Agency's action if it is the maximum reasonablepenalty that may be imposed after considering all the relevant factors. See Davis v. Dep'tofthe Treasury, 8 M.S.P .R. 317 (1981). "It is well established that the selection of anappropriate penalty is a matter committed to the sound discretion ofthe Agency." Jamesv. U.S. Postal Service, 35 M.S.P.R. 97 (1987). The Board's function is not to displacemanagement's responsibility for discipline but to ensure that managerial judgment hasbeen properly exercised within tolerable limits of reasonableness. Id. (citing Douglas v.Veterans' Admin., 5 M.S.P.R. 280, 302 (1981.

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The Board must give due weight to the Agency's primary discretion in

maintaining employee discipline and efficiency, recognizing that the Board's function isnot to displace management's responsibility but to ensure that managerial judgment hasbeen properly exercised. Harris v. U.S. Postal Service, 2005 MSPB LEXIS 7490, **13-14 (2005). The Board will modify a penalty only when it finds that the Agency failed toweigh the relevant factors or that it clearly exceeded the bounds of reasonableness indetermining the penalty. Id.

While the Board has stated that it has "marginally greater latitude of review"when compared to the "abuse ofdiscretion" standard of review utilized by appellatecourts, this:

of course, does not mean that the Board is free simply to substituteits judgment for that of the employing agencies. Management ofthe federal work force and maintenance ofdiscipline among itsmembers is not the Board's function. Any margin ofdiscretionavailable to the Board in reviewing penalties must be exercisedwith appropriate deference to the primary discretion which hasbeen entrusted to Agency management, not the Board.Douglas, 5 M.S.P.R. at 300-301.

Here, the Board must review the Agency's penalty selection to be satisfied that(1) the Agency's penalty is within the range allowed by law, regulation, and anyapplicable table ofpenalties and (2) the penalty was based on a consideration of therelevant factors, and that there has not been a "clear error of udgment." Id. at 301. Inother words, like its predecessor Civil Service Commission, the Board:

must give due weight to the Agency's primary discretion inexercising the managerial function ofmaintaining employeediscipline and efficiency, recognizing that the Board's function isnot to displace management's responsibility but to assure thatmanagerial judgment has been properly exercised within tolerablelimits of reasonableness.

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The Agency made clear to Appellant, at the time of his FAM appointment, that he

was subject to removal from his position for any "[u ]nauthorized release of securitysensitive or classified information." AF, Tab 4(T). SAIC Donzanti then properlyconsidered the relevant Douglas factors, but found that Appellant's prior performanceand length of service did not warrant mitigating the penalty of removal. AF, Tab 4(A) at2. Rather, as a law enforcement officer, Appellant was held to a higher standard ofaccountability and responsibility, but his unauthorized disclosure of SSI demonstratedthat he did not satisfy that higher standard. Id. SAIC Donzanti lost confidence inAppellant. Id.

Because the Agency reached its decision only after considering the relevantDouglas factors, and because the removal is within the realm of reasonableness forAppellant's misconduct, the Agency respectfully requests that this Appeal be denied.

D. Appellant Fails to Establish Whistleblower Retaliation.Appellant alleges that his removal action was taken in reprisal for his

whistleblowing activities, including appearing disguised on NBC Nightly News on orabout September 9,2004 and criticizing various policy decisions regarding mandatorymonthly surveillance reports, checkpoint bypass procedures, aircraft boardingprocedures, dress-code requirements, and hotel selection requirements.

To establish the affirmative defense of reprisal for whistleblowing, Appellantmust show by preponderant evidence that: (1) he made a disclosure protected under 5U.S.C. 2302(b )(8); and (2) the disclosure was a contributing factor in theagency's personnel action. Scott v. Dep't of Justice, 69 M.S.P.R. 211, 236 (1995), aff'd,

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99 F.3d 1160 (Fed.Cir.1996) (Table). IfAppellant meets his burden, the Agency thenmust show by clear and convincing evidence that it would have taken the same personnelaction in the absence of the disclosure. Id.

In this case, presuming that Appellant is able to come forward with evidence tosupport his burden, the Agency will demonstrate that Appellant was removed because hedivulged SSI without authorization- an offense that the Agency considered to be"extremely dangerous to the public we serve." AF, Tab 4(A) at 1. It is undisputed thatcharges regarding Appellant's media appearance and other non SSI disclosures to themedia were not sustained by the deciding official. Id. at 2. Thus, his allegedwhistleblowing activities were irrelevant and a non-factor in the removal decision. Fromthe time ofhis appointment, Appellant was subject to removal for the unauthorizedrelease of SSI disclosure, and when he admitted to this misconduct, he faced that ultimatepenalty. AF, Tab 4(T).

E. Appellant Fails to Prove Disability DiscriminationFinally, Appellant alleges that he was discriminated against by the Agency

because other similarly-situated FAMs were given lighter penalties. However, based onthe information provided to the Board thus far, Appellant fails to set forth a prima faciecase of disability discrimination.

In order to prove a prima facie case ofdisability discrimination, Appellant isrequired to show that: (1) he is a member of a protected group; (2) he was similarlysituated to an individual who was not a member ofthe protected group; and (3) he wastreated more harshly or disparately than the individual who was not a member of hisprotected group. Snell v. u.S. Postal Service, 82 M.S.P.R. 674, 677 (1999).

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In this case, Appellant cannot demonstrate that he is a member of the protected

group ofdisabled individuals because, having suffered only a temporary workers'compensation injury to his hip and from which he has fully recovered, Appellant is notdisabled within the meaning of the Rehabilitation Act. 29 C.F.R. 1630.2(g), Part1630, Appendix (temporary impairments are not protected); AF 4(1), 4(F). Even ifhewere a disabled individual, Appellant has not identified any similarly situated individual,outside of his alleged protected group, who was treated differently by the decidingofficial. Appellant also failed to come forward with any other evidence that tends toshow that the Agency was motivated by a discriminatory animus. As such, hisdiscrimination complaint should be dismissed as an affirmative defense in this Appeal.IV. CONCLUSION

The Agency respectfully submits that the Board should sustain the removal actionin this case. Under 7701, the Board must sustain this removal because a preponderanceofthe evidence supports the Agency's action, and the Agency did not commit harmfulprocedural error. Also, the First Amendment does not protect Appellant's disclosure o.fSensitive Security Information for which the Agency determined the reasonable penaltyof removal - an action that it would have taken even ifAppellant did not engage in anywhistleblowing activity. Finally, the Appellant fails to make out a prima facie case ofdisability discrimination.

June 1,2006

Respectfully Submitted,Robin S. Wink

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Fake Whistleblower Robert MacLean - Fired Air Marshal - TSA Agency Response - June 1, 2006

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