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A22. That is of no significance, since nothing in the record indicates he participated or was active. The AJ also offered that Donzanti did not attempt to contact ICE/OPR investigators. (Id.) There was no allegation that he did. Donzanti’s alleged participation in the retaliation was signing termination prepared by Quinn’s aides. The Board did consider whether MacLean was treated more harshly than others due to his FLEOA leadership. In doing so, it only compared his penalty with others who made unauthorized SSI disclosures. A18. As discussed in the section on penalties, the Board did not explain or support its premise that their disclosures were less threatening than MacLean’s. He contends they were far more dangerous, and served personal agendas. 12 The Board offers no citation whether any others receiving lesser penalties were even FLEOA members, let alone chapter leaders, a prerequisite for any comparative discipline analysis. The Board’s only other analysis was a conclusion that since FLEOA TSA/FAMS Chapter President Frank Terreri was not terminated, that undercuts MacLean’s claim of discrimination against FLEOA in penalties. (Id.) It is not relevant whether the agency was unable to find evidence sufficient to fire Terreri, who successfully defended himself through an OSC settlement, as well as a constitutional suit. 12 The Board also reiterated its position on MacLean’s lack of regret, A18, which has been addressed. 50
Nor was Terreri presented as evidence of disparate treatment compared to MacLean. What matters to demonstrate retaliatory animus against FLEOA leaders is how hard the agency tried, and how ugly the harassment, against them both. Like MacLean, Terreri was placed under retaliatory investigation. But he also was humiliated at his home in front of neighbors, contrary to standard procedure, and the agency withheld news for six weeks that he had been cleared. Donzanti oversaw the harassment. Terreri’s experience is further evidence of a retaliatory pattern that Donzanti carried out for Quinn against FLEOA leaders. FLEOA leadership and associated free speech issues are behind Quinn’s animus, his harassment through the PCU and subordinates like Donzanti, and the origins of MacLean’s termination. They are properly before the Board, which has not considered material issues of fact and law which on the undisputed record are sufficient to prove prohibited personnel practices. IV. MACLEAN’S TERMINATION VIOLATED THE WHISTLEBLOWER PROTECTION ACT. In MacLean I, 112 M.S.P.R. 4, 12-13 (2009), the Board held that the Whistleblower Protection Act did not apply, because the agency’s SSI regulations canceled his right to make public disclosures under 5 USC §2302(b)(8)(A), available unless, inter alia, information released “is specifically prohibited by law.” Previously the only decision to consider the issue unanimously held that in 51
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2011-3231 United States Court of Ap
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TABLE OF CONTENTS ii Page CERTIFICA
Page 5 and 6:
CONCLUSION ........................
Page 7 and 8:
Coleman v. Dep't of the Treasury, 8
Page 9 and 10:
Parsons v. Dep’t of Air Force, 70
Page 11 and 12: 2004 Congressional Research Service
Page 13 and 14: JURISDICTIONAL STATEMENT The Merit
Page 15 and 16: 8. Did the Board err by failing to
Page 17 and 18: ief with the Board in support of Ma
Page 19 and 20: He immediately called other agents
Page 21 and 22: 12, 202-03. That was consistent wit
Page 23 and 24: MacLean’s concerns were well-take
Page 25 and 26: “disgruntled,” ‘malicious,”
Page 27 and 28: investigation, . . . [and] reportin
Page 29 and 30: The ICE/OPR affidavit is the only i
Page 31 and 32: was carried out in less than a week
Page 33 and 34: could not remember if he had any im
Page 35 and 36: contradicted himself repeatedly, an
Page 37 and 38: Spithaler v. Office of Pers. Mgmt.,
Page 39 and 40: This regulation did not take effect
Page 41 and 42: of agency action must limit itself
Page 43 and 44: The Ninth circuit’s MacLean decis
Page 45 and 46: Because MacLean was free to steer b
Page 47 and 48: The AJ supported this judgment with
Page 49 and 50: Isolated inconsistencies cannot sup
Page 51 and 52: total abandonment for all long dist
Page 53 and 54: II. TERMINATION DOES NOT SERVE THE
Page 55 and 56: to pick the weak link between indiv
Page 57 and 58: effective civil service.” WPA §2
Page 59 and 60: elevant for actions that could caus
Page 61: of Health and Human Services, 7 M.S
Page 65 and 66: Senatorial Campaign Comm., 454 U.S.
Page 67 and 68: protected is by voluntarily submitt
Page 69 and 70: Statutory Protection of Whistleblow
Page 71 and 72: Board did not have the authority to
Page 73 and 74: suggested that SSI information of g
Page 75: ADDENDUM
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