Smith v. General Services Administration, No. 18-1604 (Fed. Cir. 2019)Annotate this Case
Smith worked at the General Services Administration for nearly 30 years before GSA removed him. For most of his career, he received positive evaluations and faced no discipline. When Smith began to complain about GSA’s ineffective collection and management practices, his supervisor warned him to communicate his concerns only to his supervisor. He was eventually suspended for failure to follow that instruction and his relationship with his supervisor deteriorated. Smith was also disciplined for disrespect toward his supervisor and failing to remove his computer access card from his laptop, although Smith, a quadriplegic, was physically unable to remove the card. The Merit Systems Protection Board agreed that GSA retaliated against him for his repeated disclosure of gross mismanagement; Smith was a whistleblower, 5 U.S.C. 2302(b)(8), and his protected disclosures contributed to the decision to remove him. The Board nevertheless upheld the removal. Without addressing evidence relevant to GSA’s motive to retaliate or its treatment of other similarly situated non-whistleblowers, the Board ruled that because GSA had strong evidence of misconduct, removal was justified. The Federal Circuit vacated. The Board conflated two distinct inquiries: whether the penalty was reasonable and whether the agency would have imposed that same penalty absent Smith’s protected whistleblowing. Given Smith’s disability and his supervisors’ knowledge that he could not remove his computer access card, the GSA policy did not apply to him.