A security guard at the Onizuka AF Station in California was unsuccessful in persuading first the Merit Systems Protection Board and now a federal appeals court that his probationary firing should be overturned since it was retaliation by the agency in violation of the Whistleblower Protection Act (5 U.S.C. §2302(b)(8)). (Mogyorossy v. Department of the Air Force, C.A.F.C. No. 06-3095 (non precedent), 9/8/06) The following facts are as related in the court’s decision.
Almost eight months into his job as a security guard, Mogyorossy was terminated during probation for his poor attitude in dealings with co-workers, sleeping on duty, and making “inappropriate comments” about a female co-worker. He appealed to the MSPB but the appeal was dismissed because of the Board’s limited jurisdiction over probationary firings. Also, Mogyorossy alleged whistleblowing retaliation but had not exhausted his Special Counsel (OSC) remedies. (Mogyorossy v. Dep’t of the Air Force, SF-315H-02-0319-I-1 (M.S.P.B. April 1, 2002)) (Opinion p. 2)
He then took his case to the OSC. He claims he engaged in protected whistleblowing when he told his immediate supervisor (1) that the agency had not properly paid guard overtime following 9/11/01, which he valued in his case as worth about $50; (2) he and others were not being given required rest breaks for several months; and (3) when he complained to the agency IG office concerning the first two items. (Opinion p. 3)
When the OSC did not act within 120 days of Mogyorossy’s complaint, he went back to the Board and filed an individual right of action appeal. While he met the criteria for Board jurisdiction, the Administrative Judge denied his appeal based on Mogyorossy’s failure to establish that he made any protected disclosures and on the agency’s ability to show that it would have terminated him regardless of any proven, protected disclosures. (Opinion p. 4)
When the full Board declined to review the AJ’s decision, Mogyorossy went to the Federal Circuit Court of Appeals. He argued that he was the victim of the government’s “crime of intentionally denying [him] justice,” and he demanded one billion dollars in damages. The court was apparently unimpressed by the argument, stating in its decision: “…Mogyorossy failed to show by preponderant evidence that his alleged disclosures took place, or that his disclosures were a contributing factor in either of the personnel actions at issue….The reasons for his termination speak for themselves. We therefore affirm the Board’s decision.” (Opinion p. 5)
