United States District Court, District of Columbia
MEMORANDUM OPINION
JOHN
D. BATES UNITED STATES DISTRICT JUDGE
In
2012, the United States Agency for International Development,
Office of Inspector General (“USAID-OIG”),
recommended firing one of its auditors, Likza Iglesias, after
an investigation prompted by an anonymous complaint
determined she intentionally had submitted false claims for
reimbursement. Iglesias contested USAID-OIG's decision,
claiming that any inaccuracies in her submissions were
unintentional and that the anonymous complaint, the
investigation, and her proposed removal from the Foreign
Service were retaliation for two audit findings she had made,
both of which she claimed were protected disclosures under
the Whistleblower Protection Act. The Foreign Service
Grievance Board (“FSGB” or “Board”)
upheld USAID-OIG's recommendation, concluding that
Iglesias intentionally had submitted false claims and that
there was no evidence of any connection between the audit
disclosures and the subsequent investigation or her proposed
removal. Iglesias petitioned this Court for review, filing a
motion for summary judgment challenging the Board's
decision. USAID-OIG[1] filed a cross- motion for summary judgment
in response urging that the Board be affirmed. For the
reasons explained herein, the Court will deny [19]
Iglesias's motion for summary judgment and will grant
[23] USAID-OIG's cross-motion.
BACKGROUND
I.
Facts
Likza
Iglesias began working as an auditor at USAID-OIG in 2006.
Administrative Record (“A.R.”) at
6071.[2] As an OIG auditor, Iglesias's
responsibilities included preparing audit reports, reviewing
USAID programs, documenting waste, and recommending
corrective actions. See A.R. at 9, 2660. From 2009
through 2011, Iglesias was assigned to one of USAID-OIG's
regional offices in Pretoria, South Africa. A.R. at 6071.
In June
2011, Special Agent (“SA”) Conor Cherer, an OIG
investigator in the Pretoria office, opened an investigation
into Iglesias after conducting an interview with an anonymous
complainant who alleged that Iglesias had been seeking
reimbursements to which she was not entitled. See
A.R. at 3098-3102, 6072. In August 2011, before Cherer
completed the investigation, Lisa McClennon-then the Special
Agent in Charge (“SAC”) of investigations for the
region-arrived in Pretoria for a “site visit.”
A.R. at 5547-48. During the visit, McClennon decided to take
over the Iglesias investigation, finding that Cherer had made
insufficient progress. A.R. at 6072. The Iglesias
investigation, McClennon testified, “deserved a higher
priority” than other cases “because it involved
an OIG employee” and therefore implicated “the
credibility of the Office of Inspector General.” A.R.
at 5549.
To
complete the investigation, McClennon conducted a series of
interviews and requested a review of Iglesias's
reimbursement requests and other requests for financial
allowances. A.R. at 2813, 6072. Over the next few weeks,
McClennon discovered a series of inaccuracies that
consistently accrued to Iglesias's benefit, including,
for instance, the submission of transportation vouchers and
cost of living adjustment (“COLA”) forms
requesting benefits to which Iglesias was not entitled. A.R.
at 6072-73. McClennon briefed the then-Acting Inspector
General (“AIG”) of USAID-OIG, Michael Carroll,
and the then-Regional Inspector General (“RIG”)
Christine Byrne, on her findings. A.R. at 5578, 6072-73.
Almost immediately thereafter, Carroll ordered that
Iglesias's assignment in Pretoria be cut short and that
she be reassigned to Washington, D.C., pending further
action. A.R. at 2653, 6073.
In
December 2011, AIG Carroll formally proposed that Iglesias be
removed from the Foreign Service for violating personnel
regulations prohibiting “intentional . . .
misrepresentation[s] concerning a material fact on any
official form, such as . . . reimbursement of expenses,
eligibility for allowances, etc.” and “[c]onduct
demonstrating untrustworthiness.” A.R. at 4. The
charged conduct consisted of the intentional submission of
false claims for transportation expenses, failure to report
changes in household size to obtain larger living quarters,
and the submission of inaccurate COLA forms resulting in
overpayments. A.R. at 4-8. Shortly thereafter, Iglesias was
placed on administrative leave with pay pending the
conclusion of the administrative action against her. A.R. at
12.
In
February 2012, Iglesias responded to the proposed removal
through counsel. See A.R. at 15-23. The response
conceded certain inaccuracies in Iglesias's reimbursement
forms but maintained that “there was never any
intention to obtain more funds than she was entitled
to.” A.R. at 18. Iglesias's response also claimed
that her proposed removal resulted from “an overzealous
investigation” motivated by “personal
biases” and “ill feelings toward her, ”
A.R. at 21, including because her supervisor, RIG Byrne, felt
Iglesias spoke English with an accent that hindered her work,
see A.R. at 22, 6074.
Three
months later, Iglesias supplemented her initial response to
AIG Carroll's proposal for removal with a new allegation:
her proposed termination was not due to personal biases, but
in retaliation for two protected “disclosures”
under the Whistleblower Protection Act (“WPA”).
See A.R. at 6700-02.[3] Specifically, Iglesias alleged
that her termination violated section 2302(b)(8) of the WPA,
which prohibits adverse personnel action “because of .
. . any disclosure of information by an employee . . . which
the employee . . . reasonably believes evidences (i) any
violation of any law, rule, or regulation, or (ii) gross
mismanagement, a gross waste of funds, an abuse of authority,
or a substantial and specific danger to public health or
safety.” 5 U.S.C. § 2302(b)(8).
The
first protected disclosure, Iglesias explained, occurred as
part of her team's 2010 audit of USAID's HIV/AIDS
treatment activities in South Africa, which formed part of
the President's Emergency Program for AIDS Relief
(“PEPFAR”). See A.R. at 5170, 6700-01.
Iglesias alleged that after her audit team discovered and
attempted to include in their audit report
“clear” evidence that $60 million of funding was
disbursed to the South African government despite that
government's failure to satisfy certain required
preconditions, RIG Byrne informed Iglesias that the
“funding was outside the scope of the audit and
prohibited her from conducting any further
investigation.” A.R. at 6701. The second protected
disclosure, Iglesias said, concerned her involvement with an
audit of a USAID family planning and reproductive health
program in Madagascar. A.R. at 6701. Iglesias claimed that
after her team disclosed in their “draft audit
report” that a shipment of USAID-purchased
contraceptive drugs could no longer be used because the
government of Madagascar changed certain drug laws, RIG Byrne
“responded by stating that it was not necessary to
report the issue” because USAID-OIG had “brought
the issue to USAID['s]” attention, and further
orders were canceled. A.R. at 6701. Because “[RIG]
Byrne and others” perceived her “as a
‘trouble maker'” for attempting to make these
two negative audit findings, Iglesias alleged, she
“became the subject of retaliatory
conduct”-namely, the investigation into her
reimbursement forms ultimately leading to the proposed
removal. A.R. at 6702.
In
response, AIG Carroll issued a decision rejecting
Iglesias's arguments and recommending that Iglesias be
removed for cause. See A.R. at 101-107. AIG Carroll
first explained why he did not find the “contention
that [Iglesias's] actions were unintentional”
credible. A.R. at 107. Then, in reply to Iglesias's
supplemental response raising a whistleblower defense,
Carroll stated only that the “investigation was
initiated based on an anonymous complaint, ” A.R. at
106, and that Iglesias submitted “no evidence”
that could exonerate her, A.R. at 103. Iglesias was placed on
leave without pay pending a hearing before the FSGB. A.R. at
107.[4]
II.
Proceedings Before the Foreign Service Grievance
Board
Before
issuing a decision, the Board set a discovery schedule
culminating with a hearing to take place in July 2014. A.R.
at 6075. A week before the hearing, the Board denied
Iglesias's motion for leave to depose certain USAID-OIG
witnesses concerning their knowledge of any protected
disclosures, ruling that the whistleblower defense must be
predicated on AIG Carroll's direct knowledge of the
protected disclosures. See A.R. at 6076. Iglesias
then “withdr[e]w her claim of [whistleblower]
retaliation, ” conceding that there was no evidence
Carroll had such knowledge. A.R. at 2032. The hearing took
place as planned without any whistleblower evidence. While
the Board was preparing its final order, Carroll-who was
still awaiting confirmation as Inspector General-withdrew his
name from consideration and retired. A.R. at 6075. Iglesias
then filed a motion to reopen discovery concerning the
whistleblower defense, citing a newspaper article detailing
allegations from other OIG auditors (not including Iglesias)
that Carroll improperly pressured auditors to downplay
negative findings and that such allegations had caused
Carroll's withdrawal. See A.R. at 4446-66,
5390-91.
Although
the Board refused to rely on AIG Carroll's withdrawal or
the article as a basis for reopening discovery, the Board
nevertheless reconsidered its original position that a
whistleblower defense must be predicated on Carroll's
“direct knowledge” of any protected disclosures,
concluding instead that the defense may also be proven if
someone with knowledge of Iglesias's audit disclosures
improperly influenced Carroll's decision through
involvement with the investigation into her reimbursement
claims. See A.R. at 4460-64. On that basis, the
Board offered Iglesias the opportunity to reinstate the
withdrawn whistleblower defense and reopen discovery to
depose SA Cherer and Robert Mason, an audit manager and one
of Iglesias's supervisors. See A.R. at 4464-66.
During
their depositions, SA Cherer and Mason refused to answer
questions about the source of the complaint prompting the
initial investigation of Iglesias. See A.R. at
6077-78. In response, Iglesias filed a motion to compel them
to answer, arguing that whether the anonymous complainant had
any connection to Iglesias's protected disclosure was
critical to proving her whistleblower defense. See
A.R. at 4607-25. The Board granted Iglesias's motion in
part, ordering USAID-OIG to disclose any knowledge the source
might have had about Iglesias's protected disclosures but
declining to require it to reveal the source's actual
identity. See A.R. at 5397-5400. To achieve that
outcome, the Board ordered USAID-OIG to “disclose to
the Board, in camera, ” whether the identity
of the source was “known to the agency, ” whether
“the source ha[d] knowledge of Ms. Iglesias' effort
to make negative audit findings in the South Africa . . .
and/or the Madagascar [audits], ” and whether the
source “w[ould] consent to disclosure of his/her
identity.” A.R. at 5400. In a submission later provided
to Iglesias, USAID-OIG responded that the source was known,
USAID-OIG had communicated with the source on two occasions,
the source had no “knowledge of Ms. Iglesias'[s]
alleged efforts to make negative audit findings, ” and
the source did “not consent to disclosure of his/her
identity.” A.R. at 5412; see A.R. at 5432.
The
Board then held a second evidentiary hearing solely on the
whistleblower defense, considered additional post-hearing
briefs and responses, and closed the proceedings in September
2016, pending its written decision. See A.R. at
6078.
III.
The Foreign Service Grievance Board Decision
On
January 6, 2017, the FSGB issued a decision upholding
Iglesias's removal from the Foreign Service. The Board
first concluded that USAID-OIG met its burden to prove that
Iglesias “knowingly submitted false vouchers . . . with
the intent to deceive her employer and to receive
reimbursement funds to which she was not entitled, ”
A.R. at 6092-93, and that Iglesias “knowingly failed to
update . . . COLA forms” in a manner that “always
[accrued] to her financial benefit, ” A.R. at
6100.[5] Iglesias does not seek review of those
rulings.
The
Board then addressed Iglesias's affirmative whistleblower
defense. See A.R. at 6102- 6111. To establish a
prima facie whistleblower retaliation claim, the
Board explained, Iglesias “bears the burden of
establishing by preponderant evidence that: (1) she made a
protected disclosure under the WPA; (2) she was subsequently
the subject of an adverse ‘personnel action' and
(3) the protected disclosure was a ‘contributing
factor' in the decision to take that action.” A.R.
at 6090 (citing Whitmore v. Dep't of Labor, 680
F.3d 1353, 1367 (Fed. Cir. 2012)).[6]
The
Board considered each requirement in turn, starting with
whether Iglesias's alleged negative audit findings
qualify as protected “disclosures” under the WPA.
As relevant here, the WPA defines a “disclosure”
as any “formal or informal” communication that
the “employee . . . reasonably believes . . .
evidences[] . . . gross mismanagement[ or] a gross waste of
funds.” 5 U.S.C. § 2302(a)(2)(D); see
also 5 U.S.C. § 2302(b)(8). The Board concluded
that Iglesias made protected “disclosures” under
this definition because “the evidence established that
[Iglesias] made informal complaints about certain aspects of
the audited programs that she believed evidenced gross
mismanagement and a gross waste of funds.” A.R. at
6102. The Board also concluded that Iglesias was subject to
an adverse “personnel action” because she was
“proposed for [removal] from the [Foreign] Service by
the AIG, Michael Carroll”-a decision which “arose
directly from the investigation” of her reimbursement
forms. A.R. at 6105.
Having
found protected disclosures and an adverse personnel action,
the Board proceeded to “examine the nexus, if any,
” between Iglesias's protected disclosures and her
removal. A.R. at 6105. Specifically, the Board considered
“direct and circumstantial” evidence of whether
the officials involved in Iglesias's investigation or
removal “had actual or constructive” awareness of
Iglesias's protected disclosures, as well as whether such
disclosures contributed in any way either to the
investigation of Iglesias or her ultimate removal. A.R. at
6105. The Board answered no on both counts.
As an
initial matter, the Board found no evidence that AIG Carroll
or his staff had any knowledge of Iglesias's protected
disclosures or that the disclosures directly influenced the
decision to propose her removal. See A.R. at 6107.
Recognizing that the decision to initiate the investigation
or its scope-as opposed to just the final decision-could have
been “tainted” by someone with knowledge of her
protected disclosures, the Board also examined anyone else
that may have had influence over the investigation.
See A.R. at 6107-10.
The
Board found no evidence that SA Cherer, SAC McClennon, or
anyone else involved in the investigation had any knowledge
of Iglesias's claimed disclosures. A.R. at 6108-09. And
while the Board acknowledged that Iglesias's supervisor
RIG Byrne did have knowledge of the disclosures, the Board
dismissed the possibility that Byrne told someone connected
to the investigation about them as “rank
speculation.” A.R. at 6108.
The
Board also concluded that there was no evidence tying the
initiation of the investigation to the disclosures.
See A.R. at 6107-08. Specifically, the Board
rejected Iglesias's suggestion that it should presume the
source knew of Iglesias's protected disclosure based on
“a negative inference from the agency's failure to
disclose [his or her] identity.” A.R. at 6107 n.36.
The
Board found “that the OIG had a sound legal and policy
basis for declining to disclose the identity of [the
anonymous source], ” including that the source had, in
response to the Board's inquiry, “declined to have
his/her identity revealed” as part of the proceedings.
A.R. at 6107 n.36. As part of this analysis, the Board
acknowledged that some of McClennon's
actions-e.g., insisting on taking over Cherer's
investigation, the request to review “every single
voucher or form” Iglesias submitted, completing a dozen
interviews, etc.-and some of RIG Byrne's
actions-including an email sent to AIG Carroll suggesting
that the U.S. Ambassador to South Africa was pleased with
McClennon's investigation and the decision to remove
Iglesias-were “unusual enough to suggest some negative
animus against Mrs. Iglesias.” A.R. at 6108-09. But the
Board concluded that it was Iglesias's burden to
establish a connection between the investigation and the
protected disclosures, see A.R. at 6108 n.37, and
even if McClennon “may have been on a ‘fishing
expedition' aimed at finding something with which to
incriminate” Iglesias, there was “no
evidence” that the “expedition” had any
connection to the protected disclosures. A.R. at 6108-09.
Indeed, “[n]otwithstanding [a] mosaic of possibly
negative feelings toward Mrs. Iglesias, ” the Board
found “no evidence at all of a nexus between the mosaic
and her having raised concerns about either of the two
audits.” A.R. at 6110 n.38. To the contrary, the Board
cited evidence that Iglesias's behavior aroused suspicion
because “every [financial] allowance she sought [from
USAID-OIG] was considered unusual, requiring either an
exception or additional research.” A.R. at 6108 n.37.
Iglesias thus “failed to prove” by a
preponderance of the evidence “that her protected audit
disclosures contributed in any way to the investigation into
her financial submissions” or her removal. A.R. at
6111. Because Iglesias failed to make out a prima
facie case sustaining her affirmative whistleblower
defense, the Board upheld the misconduct charges against her.
A.R. at 6111.
Finally,
the Board reviewed USAID-OIG's proposed
penalty-Iglesias's removal from the Foreign Service-for
reasonableness. See A.R. at 6111-14. To establish
reasonableness, the Board explained, USAID-OIG “must
consider [certain] relevant factors” including
“the seriousness of the offense[, ]” whether the
offenses were “intentional and not inadvertent, ”
as well as “the consistency of the penalty with what
has been imposed” in similar cases. A.R. at 6111- 12.
The Board was “satisfied” that AIG Carroll
sufficiently “review[ed] and consider[ed]” the
relevant factors, noting his explanation that Iglesias made
“intentional, repeated, ” misrepresentations that
“resulted in financial gain to her” while
simultaneously occupying a “senior fiduciary and
supervisory” position responsible for
“ferret[ing] out false representations.” A.R. at
6112-13. Finally, the Board observed that few mitigating
circumstances applied, noting instead that Iglesias
“expressed no remorse, ” “excused her
conduct as ...