(DOWNLOAD) "Kewley V. Department Of Health And Human Services" by Federal Circuit U.S. Court of Appeals # Book PDF Kindle ePub Free
eBook details
- Title: Kewley V. Department Of Health And Human Services
- Author : Federal Circuit U.S. Court of Appeals
- Release Date : January 20, 1998
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 73 KB
Description
Karen L. Kewley, a probationary employee with the Department of Health and Human Services ("agency") who had made a "protected disclosure" under the Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16 (1989) (codified at scattered sections of 5 U.S.C.) ("WPA"), petitions for review of the final decision of the Merit Systems Protection Board ("Board") denying her request for corrective action under the provisions of 5 C.F.R. § 1209.2 (1998), in an individual right of action ("IRA") arising under 5 U.S.C. § 1221(e) (1994). The initial decision of the Administrative Judge ("AJ"), see Kewley v. Department of Health & Human Servs., No. DE-1221-96-0387-W-2 (M.S.P.B. April 1, 1997), became the final decision of the Board on August 15, 1997, when the full Board denied review. Petitioner argues that she established a prima facie case of retaliation, i.e., that her disclosure was a contributing factor to her removal, simply because the removal decision was made within six weeks of her protected disclosure by one who knew about it. Knowledge of the protected disclosure was undisputed and the AJ found the timing "reasonable" within the meaning of the WPA, but nevertheless ruled retaliation had not been established, prima facie. We hold this ruling to be contrary to 5 U.S.C. § 1221(e) (1994) as properly construed and thus legal error. But, we further hold, the error was harmless. Substantial evidence supported the AJ's alternative ruling that the agency established by clear and convincing evidence that it would have removed Ms. Kewley, regardless of her protected disclosure. Therefore, we affirm.
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