United States Court of Appeals for the Federal Circuit
October 12, 1999
SAHAG Y. TCHAKMAKJIAN, PETITIONER,
DEPARTMENT OF DEFENSE, RESPONDENT.
Before Mayer, Chief Judge, Michel and Lourie, Circuit Judges.
Sahag Y. Tchakmakjian appeals two final orders of the Merit Systems Protection Board, No. SF1221970332-W-2 (July 2, 1998), and No. SF1221970707-W-2 (November 9, 1998), denying his petition for review of two initial decisions. Both the first initial decision, which issued on October 16, 1997, and the second decision, which issued on February 26, 1998, held that by disciplining Tchakmakjian, the United States Department of Defense ("agency"), did not violate the Whistleblower Protection Act ("WPA"). We affirm.
We review the board's decisions under a narrow standard. See Hamel v. President's Comm'n on Executive Exchange, 987 F.2d 1561, 1564 (Fed. Cir. 1993). We must affirm absent a showing that a decision of the board is, "(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." See 5 U.S.C. § 7703(c) (1996).
To argue successfully that the agency's actions violate the WPA, an employee must demonstrate, inter alia, (1) that a disclosure is protected under the Act, (2) that by a preponderance of the evidence, the protected disclosure was a contributing factor in the alleged reprisal(s) taken, and (3) that the alleged disciplinary action would not have occurred but for the disclosure. See 5 U.S.C. §§ 2302 (b) (8), 1221 (e) (1), 1221 (e) (2); Horton v. Department of the Navy, 66 F.3d 279, 279-84 (Fed. Cir. 1995).
Tchakmakjian primarily takes issue with the factual findings of the Administrative Judge ("AJ"), and argues that several disclosures he made between April 1992 and June 1996 led to subsequent reprisals by his supervisors. Finding only the disclosure made to the Defense Criminal Investigative Service ("DCIS") in April 1992 to be a protected disclosure for the purposes of the WPA, the AJ held that Tchakmakjian failed to demonstrate a nexus between the disclosure and the alleged reprisals. The establishment of such a causal link between an employee's conduct and the taking of disciplinary action is essential to a successful claim under the WPA. See Henry v. Department of the Navy, 902 F.2d 949 (Fed. Cir. 1990). Contrary to Tchakmakjian's arguments, the record supports the AJ's findings. In exercising her judgment, the AJ gave careful consideration to each and every charge, and weighed all evidence properly before her. Tchakmakjian failed to prove, circumstantially or otherwise, that either the May 1995 oral admonishment, the February 1996 reprimand, the performance rating he received for the period from April 1, 1995, to March 31, 1996, the December 4, 1996 letter of discipline, or the 14-day suspension, effective December 23, 1996, was causally connected to the protected disclosure. Tchakmakjian does little more than disagree with the AJ's judgment. The AJ's evaluation of the credibility of witnesses and other evidence presented, are "virtually unreviewable." Hambsch v. Department of the Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986).
"It is not for this court to reweigh the evidence before the Board." Henry, 902 F.2d at 951. Given the tenuous nature of the allegations set forth by Tchakmakjian and the reasonableness of the disciplinary action taken against him, the board did not abuse its discretion by relying upon factual determinations made by the AJ. Furthermore, where the board's findings are supported by substantial evidence on the record as a whole, its decision will be upheld. Parker v. United States Postal Service, 819 F.2d 1113, 1116 (Fed. Cir. 1987).
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