In McPherson v Department of Homeland Security (CAFC No. 2018-2218 (nonprecedential) 4/4/19), a fired TSA (Transportation Security Administration) agent established his whistleblowing bonafides. However, both the Merit Systems Protection Board (MSPB) and the appeals court concluded that DHS (Department of Homeland Security) had proved that it would have removed McPherson notwithstanding his status as a whistleblower.
As related in the appeals court decision, McPherson was hired in 2016 at the New Orleans International Airport as a TSA agent, subject to a two-year trial period. As the court noted, McPherson’s first two years were “turbulent.” (Opinion p. 2)
The agency detailed several instances of McPherson’s bad behavior toward other agents, a supervisor, and a passenger, the latter leading to a complaint by that passenger to the agency that McPherson was rude and had yelled at him. (p. 2)
During the same time frame, McPherson held a union leadership position and in that capacity aired some complaints to a supervisor regarding the agency’s failure to comply with some provisions in its collective bargaining agreement with AFGE (American Federation of Government Employees). A few weeks later TSA informed McPherson he was being terminated during his trial period because of the several instances of discourteous conduct on his part. (p. 3)
McPherson filed with the Office of Special Counsel (OSC), arguing his termination was in retaliation for his whistleblowing. When OSC declined his case, McPherson exercised his right to appeal to the MSPB.
The Board’s Administrative Judge, following a hearing, found that McPherson had made protected disclosures, they factored in to TSA’s decision to terminate him, however, TSA met its burden in establishing that it would have terminated McPherson notwithstanding his status as a whistleblower. (p. 3)
McPherson took his case to the appeals court. The court has now affirmed the MSPB decision. In its decision, the court noted that McPherson’s arguments “are largely disagreements with the Board’s factual determinations.”…but, the Board addressed each of his arguments and “explained in considerable detail why it rejected these claims.” (p. 5) Finding no error in the treatment of McPherson’s appeal by the MSPB, the court upheld the agency’s decision.
In short, McPherson’s removal stands.
