UNITED STATES OF AMERICA

BEFORE THE MERIT SYSTEMS PROTECTION BOARD

In the matter of:

ROBERT J. FRAZIER, JR.,

CHARLES E. MORRIS,

WILLIAM C, REILLY,

TERRY E. LOVE,

AND

WILLIAM E, HALL, DIRECTOR,

U.S. MARSHALS SERVICE,

CHARLES F. C. RUFF,

ACTING DEPUTY ATTORNEY GENERAL,

U.S DEPARTMENT OF JUSTICE,

AND

BENJAMIN R. CIVILETTI,*

ATTORNEY GENERAL OF THE

UNITED STATES

Docket No.

SC-79-3

Order No.

SCC-80-1

OPINION

This case presents the Board with a request for an order requiring correction of personnel practices which it is alleged violate the

Civil Service Reform Act of 1978.1 The petition was presented by

the Special Counsel of the Merit Systems Protection Board.2 The

•When the Special Counsel first brought this matter before the Board, the Attorney General was Honorable Griffin B. Bell and the Deputy Attorney General was

Benjamin R. Civiletti.

1

 Pub. L. No. 95-454, 92 Stat. 1111 (effective Jan. 11, 1979). Title I of the Reform

Act (6 U.S.C. §§ 2301-2305) establishes the merit system principles that govern

federal personnel management and prohibits specified personnel practices, in*

eluding reprisals for employees' disclosures of agency wrongdoing (whistleblowing).

The protection of whistleblowers is a primary purpose of the Act. At the same time,

the restrictions on managerial abuses and protection of employees established by

Title 1 must be construed in light of the Act's legislative history, which reveals a

complementary, but somtimes countervailing, purpose to improve the efficiency of

the civil service by facilitating removal of the employees who fail to perform their

duties. Thus an employee's claim to be a whistlebiower roust be carefully scrutinized to insure that whistleblowing protection is not being misused in an attempt to

thwart needed disciplinary action.

2

 Title II of the Reform Act, along with Reorganization Plan No. 2 of 1978, created

three new executive agencies: the Office of Personnel Management to administer

personnel matters; the Merit Systems Protection Board and its Office of Special

Counsel to investigate and adjudicate claimed violations of merit system principles;

and the Federal Labor Relations Authority to exercise jurisdiction over collective

bargaining in the federal sector. See 5 U.S.C. §§ 1101,1201,1204 and 7104.

159
Special Counsel is authorized by 5 U.S.C. § 1206 to investigate and

seek corrective action for personnel practices which are prohibited

by the Act. The Special Counsel's petition and the Board's consideration of his request are authorized by 5 U.S.C. § 1206(c)(l)(B).3

The case arose when shortly after the Reform Act became effective, the Special Counsel undertook an investigation of personnel

actions by officials of the United States Marshals Service. The investigation was prompted by allegations of prohibited personnel

practices, which were submitted to the Special Counsel on

February 26, 1979, by James R. Rosa, General Counsel, American

Federation of Government Employees, AFL-CIO, on behalf of

Deputy United States Marshals Robert J. Frazier, Jr., Charles E.

Morris, William C. Reilly and Terry E. Love. The complaining

deputies requested the Special Counsel to investigate charges that

they were transfered from their office in Atlanta, Georgia to other

offices of the Marshals Service throughout Texas and Florida

because they had complained in the spring of 1978 to Senator Herman Talmadge and Congressman Wyche Fowler about certain

problems in the Atlanta office.

Subsequent to the initiation of his investigation, the Special

Counsel, on March 6,1979, requested the Board to order a stay for

a period of 15 days of any action taken or which might be taken by

the Director of the marshals Service, or his designee, to transfer the

four deputies.4 This request was based on the Special Counsel's

determination that there were reasonable grounds to believe that

personnel actions had been or were about to be taken by the marshals Service against the deputies in reprisal for their

"whistleblowing" to Members of Congress, a prohibited personnel

practice in violation of 5 U.S.C. § 2302(b){8).5

3

 This section provides in pertinent part:

If, after a reasonable period, the agency has not taken the corrective action

recommended, the Special Counsel may request the Board to consider the matter

4

 As introduced H.R. 11280, 95th Cong., 2d Sess. (1978) and S. 2640, 95th Cong., 2d

Sess. 11978) provided that the Special Counsel could issue stays of certain personnel

actions. See § 202(a) of both bills. During the legislative debates, however, a clear

delineation evolved between the prosecutorial role of the Special Counsel and the

adjudicatory role of the Merit Systems Protection Board. All adjudicatory powers

were removed from the Office of the Special Counsel and placed in the Merit

Systems Protection Board. Thus, the Special Counsel does not make adjudicatory

findings. See S. Conf. Rep. No. 1272, 95th Cong., 2d Sess. at 132-133 (1978).

5

 Under 5 U.S.C. § 1208(a), the Special Counsel must allege in his stay petition that

there are "reasonable grounds to believe that a personnel action was taken, or is to

be taken, as a result of a prohibited personnel practice." The Board member reviewing the case "shall order such stay" unless under the "facts and circumstances involved ... a stay would not be appropriate." If no action is taken on the stay request within three days of its filing, a stay is automatically granted by operation of

law. There is no right to a hearing. See generally In re Frazier, \ MSPB 2 (1S79).

160
Two days later, on March 8, 1979, the Chairwoman granted the

stay.6 On March 23, 1979, upon the request of the Special Counsel,

the Chairwoman extended the stay under the provisions of 5 U.S.C

§ 1208{b) for an additional 30 days. During the pendency of these

stays, the Special Counsel concluded his investigation and found

reasonable grounds to believe that prohibited personnel action had

been taken by the Marshals Service. From his investigation the

Special Counsel determined that the transfers were ordered in

reprisal for exercise of "appeal rights*' protected under section

2302(b)(9), as well as for disclosures protected under section

2302(b)(8). Accordingly, on April 11, 1979, acting under section

§ 1206(c)(l|(AK he forwarded a report of his determination, together

with his findings and recommendations for corrective action, to the

Board, the Office of Personnel Management, and to the Department

of Justice (of which the Marshals Service is a subunit).7 The

Special Counsel recommended to the Department of Justice that,

among other things, it rescind the proposed reassignments of the

four deputies and review the action of U.S. Marshal Ronald E.

Angel and Marshals Service Director William E. Hall in initiating

the reassignments. The Special Counsel requested the Attorney

General to review the matter and report his conclusions to the

Special Counsel.

The Department of Justice, under the signature of the Attorney

General, responded to the Special Counsel's recommendations on

May 21,1979, by declining to comply with the recommended corrective action. The Department took the position that there had been

no prohibited personnel actions on the part of the Marshals Service

and, accordingly, no corrective action was required. Consequently,

the Special Counsel, on May 19, 1979, filed the petition for corrective action now before the Board. The Special Counsel also requested the Board to extend its initial stay for a period of 90 days

or such lesser period as might be necessary for the Board's decision

on the petition for correction action.8 The Board on June 15, 1979,

6

 Though the legislative history of section 1208(a) requires that "great deference"

or "great weight" be given the Special Counsel's determination, this does not

totally preclude board review of his determination. Thus, the Special Counsel's stay

petition will be denied only if—

... the facts and circumstances reveal that the request is so intrinsically or inherently irrational as to be arbitrary or capricious.

In re Fr&zier, ibid.

7

 Such a report by the Special Counsel is required by section 1206(c)(l)(A).

8

 Section 1208{c), 5 U.S.C., authorizes the Board to extend its stay for an appropriate period when it concurs in the Special Counsel's determination after an opportunity for comment is provided to the agency involved and the Special Counsel.

A subsection 1208(c) stay proceeding is not a determination on the merits. Rather—

... the Board will give the benefit of the doubt to the Special Counsel's findings

with respect to those disputed facts which tend to support a finding that there

161
entered an order which extended the stay of the reassignments until a final decision on the matter was reached. In extending the stay,

the Board issued an opinion dated June 20, 1979, which concurred

in the Special Counsel's determination that there were reasonable

grounds to believe that the reassignments were undertaken in

reprisal for the deputies' disclosures of mismanagement and violations of law and regulations.

On June 29, 1979, the Marshals Service responded to the Special

Counsel's petition for corrective action, and the Office of Personnel

Management provided its comments on the matter. On July 11,

1979, the American Federation of Government Employees (AFGE)

moved to intervene in the proceeding and, on July 12, 1979, the

Board permitted the AFGE's attorneys to appeal on behalf of the

four deputies.

Thereafter, in its order of July 12, 1979, the Board scheduled a

hearing on the merits of the petition and discovery ensued pursuant to the terms of a Board order. The Board held three days of

hearings on August 8 through 10, 1979, and resumed for another

day on August 23, 1979. In accordance with the Board's posthearing briefing schedule, final briefs in the matter were filed on

October 8, 1979.

FINDINGS OP FACT

After hearing the witnesses and reviewing the transcript from the

hearing and the evidence contained in the record, the Board has

made the following findings of fact.

A. Background

For a number of years, the U.S. Marshals Service (the Service)

has been beset by problems resulting from efforts to make its law

enforcement efforts more professional. The Director of the Service,

William Hall, is a civil servant faced with the difficult task of

supervising 94 United States Marshals Service offices, each

headed by an independent Presidential appointee. Notwithstanding this ambiguous relationship with district marshals, Hall must

insure that each carries out the policies of the Service and he must

take final action on any significant personnel matters affecting any

of the 1,400 deputy marshals, including removals and transfers.

are reasonable grounds to believe that a prohibited personnel practice has occurred .... [S]hould the Board find that the allegations fall outside the range of

rationality, the Board will not hesitate to deny a §120&(c) stay application,

In re Frazier, supra (Opinion dated June 20,1979 at 6).

Therefore because of the reduced standard of proof involved in a section 1208(c) stay

application, the stay relief available is interim in nature, and thus ancillary to final

relief under other statutory sections such as 5 U.S.C. §§ 1206(c)(l)(B) and 1206(h)

(corrective action), 1205(e) (OPM regulation review) or 7701 (Board appeal).

162
Throughout the fall and early winter of 1978, Hall periodically

received reports on the 94 districts of the Service, including the

Northern District of Georgia {the Northern District), which has its

headquarters in Atlanta. The Northern District has been numbered

among the particularly troubled and poorly managed districts in

the Service. Among other things, it was the source of an unusually

large number of complaints charging equal employment opportunity (EEO| violations.

Between 1976 and 1978, the total workforce of the Northern

District averaged about 30 persons, yet at least 12 employees of

that district filed discrimination complaints. Both management

and personnel problems pre-existed the administration of the present Marshal, Ronald Angel, but continued after his arrival in

September 1977.

In the late spring of 1978, some Northern District deputies took

their complaints to the Atlanta offices of Senator Herman

Talmadge and Congressman Wyche Fowler. A staff member of

Wyche Fowler's office contacted the Service to request that the

matters complained of be investigated. During this period, Hall

first became aware that the Northern District was split into factions, one composed of certain deputies and the other composed of

supervisors and the remaining deputies. He was also aware that

some deputies had contacted Congressman Fowler regarding the

situation in that district. In July 1978, Hall received a written request from Marshal Angel that four disruptive deputies be

transferred to other districts.9 Hall did not act on the request on the

grounds that the U.S. Marshal should deal with the problems in his

district:

Over the next six months the situation in the Northern District

became increasingly troublesome. Hall continued to receive

periodic reports about the management problems being encountered by Angel and the increasingly frequent personnel problems arising in that district.

Finally, in late December, following a visit by Angel to Service

headquarters, Hall was informed by his staff that the situation in

Atlanta was deteriorating rather than improving. Hall became convinced that a fresh look should be taken at the entire Atlanta situation, and therefore appointed a six-man management team to go to

Atlanta.

That team presented Hall with a management report in midJanuary and, among other things, recommended the transfers of

four deputy marshals involved in this case, along with the chief

deputy marshal. On January 29, 1978, Director Hall acted on the

9

 The four were deputies Frazier, Morris and Reilly, along with Deputy Theodore

Jordan. Deputy Love was not included.

163
recommendation of the management report and ordered the

transfers of the five individuals.

After the director ordered the reassignment, the Special Counsel

conducted the investigation which eventually resulted in this petition for correction of the alleged prohibited personnel practices.

The hearing in this case was conducted to obtain the factual information necessary to determine whether the transfers of the four

deputy marshals are prohibited by 5 U.S.C. § 2302.

B. Whistleblowing Activities of the Deputies

In the late spring and early summer of 1978, a small group of

deputies decided to visit the Atlanta offices of two Members of

Congress to complain about the way the Northern District office

was being run. At various times this group included the four

deputies involved in this case—Robert Frazier, Charles Morris,

William Reilly, and Terry Love—all of whom had become extremely alienated from the management of the office.10

At the time the various deputies visited the offices of Senator

Talmadge and Congressman Fowler, Deputies Frazier and Morris

were aware that disciplinary charges might be brought against

them. Frazier knew of an investigation pending with regard to his

involvement in an off-duty autmobile accident a year earlier. Northern District management already had warned Morris a number of

times that he was in violation of the Service's personal grooming

regulations and that disciplinary action might result. Service headquarters in fact authorized formal disciplinary action against

Frazier and Morris on these grounds subsequent to Marshal

Angel's July 19, 1978 recommendation of the reassignment of

Deputies Frazier, Morris, Reilly and Jordan.

The event which apparently triggered the visits of the group of

deputies to the two congressional offices was a training session and

barbecue at the Cobb County Pistol Range on April 25, 1978. Marshal Angel had planned the day of training and fellowship hoping

to improve morale among the deputies; outings of a similar nature

were widely held throughout the districts of the Service.

Marshal Angel had purchased ribs and soft drinks at his own expense. Following the firearms training in the morning, all of the

deputies stayed for a barbecue lunch. At the lunch, Marshal Angel,

as well as some of the deputies, including William Reilly, Reginald

Boyd, and Theodore Jordan, consumed beer. Some of the deputies

used government vehicles to carry alcoholic beverages to the pistol

range. There is conflicting and inconclusive evidence regarding

10

 The group included Robert J. Frazier, Lee Edward Mott, Theodore Jordan,

William C. Reilly, Larry Sapp, and Charles Morris; Terry Love appears not to have

attended the meetings, but to have delivered documents to Fowler's office and

talked briefly with his aide.

164
weapon firing on the pistol range after drinking. After the lunch,

some of the participants, including Marshal Angel, played poker

for small stakes until around 5:00 p.m.

About a month later, Deputies Frazier, Lee Mott, and Theodore

Jordan went to the Atlanta office of Senator Herman Talmadge to

voice complaints about the management of the Northern District

office. They spoke with Lowell Connor, an aide to the Senator, who

told them he was a long-time friend of Marshal Angel and offered to

discuss their complaints with the Marshal. The deputies left the office shortly thereafter. Connor and Angel both testified that Connor did not contact Angel or anyone else about the visit until

sometime after the reassignment of four deputies had been ordered.

Around June 3,1978, a small group of deputies made visits to the

Atlanta office of Congressman Wyche Fowler. On these visits, the

various deputies met with Charles Jackson, an aide to Congressman Fowler, and on one occasion, Congressman Fowler

himself.

While there is some confusion as to the exact documents

delivered to the Congressman's office, and when they were

delivered, it was clear that, various deputies complained, however

inarticulately, about harassment and racial discrimination against

blacks; incompetent supervisors; problems in the transportation of

prisoners; and the Cobb County Pistol Range incident.

While Jackson acknowledges that he did not undertand clearly

the nature of the complaints made by the various deputies, he and

Congressman Fowler were impressed with the seriousness of their

allegations and phoned the congressional liaison office of the

Department of Justice.

Eventually Jackson was referred to Frank Vandergrift, Chief of

the General Operations at the Service. At no time during these contacts did Jackson identify the complaining deputies.

At the direction of Twomey, Deputy Director of the Service,

Vandergrift went to Atlanta on July 6, 1978, and visited with

Jackson. Vandergrift had difficulty understanding the particular

allegations made to Jackson. Jackson gave Vandergrift papers

which appear to have been some of those which the various

deputies had earlier given to Jackson.

After examining the papers overnight, Vandergrift was still

unable to identify particular problems. The next morning, before

returning to see Jackson, Vandergrift phoned Ray Lora, then

Acting Special Assistant for EEO Affairs to Service Director

William Hall,11 and asked him to handle the inquiry from Fowler's

11

 Lora had recently been appointed acting special assistant to Director Hall

specifically for the purpose of handling EEO matters. He had no formal access to

Hall and saw him only at staff meetings or by appointment.

165
office.18

 When Vandergrift returned to see Jackson, he told

Jackson that Lora would follow up on the Congressman's inquiry.

When he returned to headquarters, Vandergrift spoke briefly

with Twomey about his visit to Atlanta, telling him that he could

not determine what the problem was, and that he had referred the

matter to Lora. Lora confirmed that he would follow up with Congressman Fowler and did not report to Vandergrift further about

the matter. Vandergrift did not discuss his trip to Atlanta with

Director Hall.

When Lora arrived in Atlanta on July 16, 1978 to follow up on

Fowler's inquiry and investigate an EEO complaint by Deputy

Morris, Marshal Angel called an impromptu meeting to introduce

him to the deputies. At that meeting, Angel stated that he knew

some deputies had complained to a congressman about the pistol

range incident.13

Lora interviewed Marshal Angel, Supervisory Deputies Warren

and Brookhart, Chief Deputy Bowler and several deputies, including Frazier, Jordan, Reilly, Morris, Boyd, Mott, Navarro,

Hood, Cutler, and Connors.

Lora and Angel visited Congressman Fowler's aide, Jackson, to

assure him that the deputies' complaints were being handled by the

Service. Fowler's office made no further inquiries about the matter

until June of 1979, nearly one year later. By that time, the management team review team had completed its study and recommended

the transfer of the four deputies involved in this case. Moreover,

the Special Counsel had completed his investigation and petitioned

for corrective action.

Shortly after returning from Atlanta, Lora met briefly with Director Hall and discussed his trip to Atlanta in terms of management

problems in the Northern District and the polarization of staff

there. He told Hall that he agreed with Angel's recommendation

that some deputies be transferred. Lora apparently did not tell him

about visits by the deputies to Fowler's or Talmadge's office or

give him names of particular deputies.

The record is devoid of any subsequent references to

"whistleblowing" prior to the visit of the headquarters management team to the Northern District in January 1979. There is conflict in the testimony, however, as to whether any of the deputies interviewed by the team told team members that they had complained to Fowler's or Talmadge's office.14

12

 There is a confict in the testimony regarding whether Vandergrift read to Lora

any of the names of signatories to the documents given him by Jackson. Vandergrift

testified that he could not make out most of the names.

13

 Angel testified that he did not know the identities of the deputies.

14

 The team members were William Russell, Marshals Service director of administration; Gary Mead, chief of the personnel division; Benjamin Butler, special

166
All team members denied that any of the four deputies they

subsequently recommended for reassignment mentioned any visit

to a Member of Congress. While some of the deputies and a union

official present at the interviews stated that they did tell members

of the team about visits to Members of Congress, their testimony is

internally inconsistent.15

C. Exercise of Appeal Rights by theDeputies

1. Deputy Robert J. Frazier

Deputy Robert J. Frazier has been assigned to the Northern

District since 1971 and became involved in EEO activities in that

district beginning in 1973. There is no evidence that he experienced

any disciplinary problems until after he became a counselor for the

Marshals Service EEO program. Thereafter, Chief Deputy William

Bowler, Supervisory Deputies Lewis Warren and William

Brookhart repeatedly harassed Frazier personally by threatening

disciplinary actions against him.16

In August 1977 Frazier attended an EEO training session despite

his supervisor's objections. Shortly thereafter, on September 9,

1977, he was accused of leaving his Service-issued weapon unattended in a vehicle.

In February of 1977, shortly after he counseled Tennyson

Thompson, a black deputy, in connection with a race discriminaassistant to the director for EGO matters; William Zamora, chief deputy for the New

Mexico district; Anthony Furkah, chief deputy for the Washington, D.C. district;

and Simon Barr of the headquarters audit staff.

16

 Deputy Frazier testified that he asked the team members who interviewed him,

Gary Mead and Anthony Furkah, whether their visit was in response to some

deputies having gone to see Congressman Fowler. He did not, however, tell them

that he had seen Senator Talmadge or Congressman Fowler, or that he had provided

documents to either of them. Further, Frazier's statements were contradicted by

George Kelley, a union official present at Frazier's interview by Mead and Furkah;

Kelley testified that Frazier told Mead he had been to "the congressmen."

Deputy Morris testified that he told team members that he discussed problems

with a congressman. However, Morris did not testify that he told team member

Butler he had been to Congressman Fowler.

Deputy Reilly testified that he offered Russell documents and told Russell that

they were copies of the ones given to Congressman Fowler; Russell admits that

Reilly offered and later delivered documents to him, but denies being told they had

been given to Fowler. Union representative Kelley stated that Reilly told Russell

and Zamora, the other team member interviewing him, that some of the deputies had

complained to Fowler's office.

Deputy Love testified on direct examination that he told team members Mead and

Furkah that several deputies had visited Congressman Fowler and that he had provided information to Fowler, On cross-examination, however, Love stated merely

that he thought he told Mead that he attended a meeting at Fowler's office, and then

stated that he did not remember what he told Mead.

16

 Neither Bowler, Brookhart nor Warren was called by the Marshals Service to

testify at the hearing in this case;

167
tion complaint, Frazier again was threatened by then Marshal Henson with a letter of reprimand related to his haying left his weapon

unattended some five months earlier.

On February 25, 1977, Frazier filed a complaint of reprisal17

against the Marshals Service in connection with his activities as

EEO counselor. Approximately one week later, Chief Deputy

Bowler informed him that he proposed to issue a letter reprimanding Frazier for alleged violations of the grooming regulations. On

March 9, 1977, Bowler sent Frazier another notice of proposed

reprimand regarding his failure to safeguard his weapon.

A few days later, on March 21,1977, Supervisory Deputy Bowler

advised Frazier that his problems were related to being in too many

"activities." Frazier alleges that during that March 21st conversation, Bowler offered to drop the proposed letter of reprimand concerning the unattended -weapon incident in return for Frazier's

EEO counselor resignation. Bowler suggested to Frazier that he

could expect to encounter less difficulty in his work if he dropped

his union and EEO responsibilities. Later that same day, Frazier,

who had begun to experience psychological problems, submitted to

Bowler a letter of resignation as EEO counselor, citing "job

pressures" as his reason. Strikingly, the record reflects that immediately after Frazier's resignation, Bowler advised Frazier that

the proposed reprimand would be dropped. About a week later,

Bowler informed Frazier by a memorandum that the proposed letter of reprimand was rescinded.

On April 17, 1977 Frazier was in an automobile accident involving his off-duty use of a government vehicle. A few weeks later he

was admitted to a hospital for psychiatric treatment. While Frazier

was in the hospital, he was ordered to return to work or be deemed

absent without leave.

When Frazier returned to work in mid-May, he was relieved of his

weapon and told that he would be assigned administrative duties.

Instead he was assigned, unarmed, to transport prisoners and serve

process in high crime areas. Thereafter, in May and June of 1977,

he was denied sick leave despite his physician's request. During

this same time period, Frazier was subjected to a lengthy interrogation regarding the April 17, 1977 automobile accident involving his

off-duty use of a government vehicle. A 30-day suspension of

Frazier was proposed by Angel on July 20, 1978 on the grounds of:

(1) willful unauthorized use of government property and (2)

17

 This was the first of two complaints filed by Frazier which are contained in the

record. The second complaint was filed over a year later, in May 1978. The record

reflects that at the time of the Board's hearing in this case, the Service still had not

completed its processing of either of these complaints despite Frazier's diligence in

pursuing his requests that the complaint be processed.

168
falsification, mis statement, exaggeration or concealment of a

material fact in connection with an investigation.18

On July 28, 1977, Frazier returned to the office to provide an affidavit in an EEO investigation of the discrimination complaint of

Tennyson Thompson, a deputy whom Frazier had counseled during

the informal complaint stage. Frazier returned to duty in

September 1977, and apparently was again assigned to transport

prisoners without a weapon, despite his physician's request that he

be placed on limited duty.

All the foregoing events occurred during the tenure of James

Henson as Marshal of the Northern District. On September 28,

1977, Marshal Angel arrived. In October 1977, Angel was instructed by Marshals Service headquarters to place Frazier on

limited duty status. However, Angel retained Frazier on full duty

status. On October 24, 1977, Frazier submitted his resignation, effective January 2, 1978, explaining that his mental condition required his resignation.

A few days later, Marshal Angel placed Frazier on administrative leave on the grounds that Frazier's mental condition

required that he be relieved of all duties. Frazier withdrew his

resignation in December 1977, and asked to return to work. He was

retained in leave without pay (LWOPf status until July 1978, seven

months later. Although Frazier was on LWOP status, an EEO

counselor, Art Worthy, was assigned to counsel Frazier for several

days regarding the EEO complaint he had filed a year earlier. On

May 8,1978, Frazier filed a second formal complaint of discrimination based on interference and harassment related to his EEO activities. A month later on July 12, 1978, Marshal Angel informed

Frazier that headquarters had ordered him to reinstate Frazier, and

told him to report to work the following day.

Within days of his return to work, Frazier was interviewed by

Joseph Tolson, an EEO invesitigator in connection with the investigation of a complaint filed by Deputy Morris. Moreover, he

was interviewed by Ray Lora from headquarters. The record

reflects that Lora asked Frazier what he required in exchange for

withdrawing all of his complaints. Lora also inquired how Frazier

would react to being transferred. After his visit to Atlanta, Lora

told Director Hall he concurred in Marshal Angel's recommendation regarding the transfer of four deputies.

18

 While this matter is still unresolved, Marshal Angel later sent a memorandum

to Floyd Wheeler of Marshals Service headquarters personnel which stated that the

proposed 30-day suspension could not be sustained because, "I find office practices

and procedures that existed in the Northern District of Georgia in April 1977, to be

such that would render it technically impossible to adjudge the use of the government vehicle in the instant case to be unauthorized." Angel recommended a 15-day

suspension on the second ground, to run concurrently with the period Frazier had

been on leave without pay.

169
In late October 1978, Frazier provided a lengthy affidavit recounting the history of his own EEO case to Stanford Gorrin,

another EEO investigator dispatched by headquarters to investigate his complaints.

In view of the protracted nature of Frazier's EEO activities, of

Angel's contacts with headquarters regarding his case, and of the

management team's knowledge of his EEO involvement, we find

Director Hall had actual or constructive knowledge of Frazier's

EEO activities.

2. Deputy Charles E. Morris

Deputy Charles E. Morris was assigned to the Northern District

in 1976. From the outset of Marshal Angel's tenure in the district,

Morris challenged his authority by refusing to comply with the Service's hair grooming policy, by objecting to courtroom duty and excessive close supervision, and by complaining continually about

relatively petty matters such as the office leave policy.

Morris resisted courtroom duty because he felt that performing

personal services for judges was beneath his dignity. He was

openly contemptuous of his supervisors, and his constant agitation

disrupted the office and caused dissension among the deputies.

Morris often asked to be excused from particular work assignments

for his personal convenience. On some occasions when Morris took

issue with his superiors, he was ordered to get a haircut or was

reported for grooming policy violations.

On May 17, 1978, Morris presented an oral grievance19 to Marshal Angel concerning the office work rotation roster and bid

system. After Morris finished his grievance, Angel rejected his suggestions and informed Morris that he was in violation of the Service hair grooming policy, and that he would be suspended for the

maximum time for which Angel could obtain approval from headquarters. Following that interview, Angel sent Morris a memorandum advising him of the requirements for formalizing his oral

grievance, but there is no evidence that Morris ever followed

through.

Morris testified that he felt Angel instituted the grooming policy

charges in retaliation for his having given affidavits supporting

EEO complaints of Frazier and Thompson. Morris contacted Ray

Lora, who advised him not to file an EEO complaint in regard to the

proposed suspension. On June 5, 1978, however, Morris did file an

EEO complaint charging Angel with retaliation. Ultimately Morris

was suspended on the hair grooming charge for two days in August

of 1978.

On July 17, 1978, Lora arrived in Atlanta to investigate Morris'

EEO complaint and the disclosures to Congressman Fowler. After

19

 See p. 189, infra.

170
interviews with Morris and other deputies, Lora became convinced

that Morris was the "eye of the storm" in Atlanta and told Morris

in a second interview that he would try to have him transferred.

On September 5, 1978, Morris filed an EEO complaint against

Lora for reprisal. On October 30,1978, Lora received a copy of Morris' complaint against him and sent it to Director Hall with a note

stating that Morris was one of the deputies whose transfer Angel

had recommended. Hall received Lora's note.

Benjamin Butler, who interviewed Deputy Morris during the

management review team's visit to Atlanta, testified that Morris

said during the interview that he was aware he could file an EEO

complaint. Butler said he knew that Morris had filed an EEO complaint. Simon Barr, another member of the team, was present during the interview. It is not clear from the testimony whether Barr

knew Morris had filed a complaint. There is no evidence warranting

an inference that any other member of the team knew of Morris'

EEO complaints or that any member of the team considered Morris' EEO activities in recommending his transfer. Nor is there any

basis for an inference that Hall considered Morris' EEO complaint

against Lora in ordering the transfer.

3. Deputy William C. Reilly

Deputy William C. Reilly was assigned to the Northern District

in January of 1976. At the outset, he began openly criticizing the

supervisory staff for poor management and lack of effective communications with the deputies. Reilly complained about unfair performance rating procedures and in March of 1978 was partially successful in challenging one of his own ratings.

Reilly constantly complained about his duties and particularly

objected to courtroom duty. On occasion he complained openly and

bitterly about performing such "demeaning" duties as pouring

water for witnesses and assisting an infirm judge in donning his

judicial garb.20

20

 The highly speculative and irresponsible nature of a charge made by Deputy

Reilly to Russell during a management team interview seriously undercuts the

credibility of his other complaints. According to Russell, Deputy Reilly told him

that he suspected that the Marshal and other Northern District personnel, including

William Brookhart, may have been taking "kickbacks" from an airline. Russell

stated that Reilly based his suspicion on the fact that the front office did all the

scheduling for travel—a practice which Reilly believed was unusual. Russell added

that Reilly mentioned that Brookhart's wife was a stewardess for the airline in question. Russell believed that Reilly was serious about his allegation.

Russell stated that management scheduling of all travel is not unusual, since that

practice can prevent the need for paying excessive overtime on travel. Marshal

Angel, in fact, stated that he had centralized travel arrangements in the front office

as a direct result of the need to keep overtime costs within new budget allocations.

He further states that the institution of this management practice seemed to have

resulted in a reduction of overtime hours.

171
Reilly never filed an EEO complaint and no disciplinary action

was ever proposed against him. On May 24, 1978, Reilly joined

eight other deputies in sending a letter to Ray Lora asking that an

EEO counselor be sent to Atlanta. On July 13, 1978, he gave an

EEO investigator from Marshals Service headquarters an affidavit

in support of the EEO complaint of Henry Buckner, a black deputy,

against Marshal Angel. However, the record is devoid of any further evidence of EEO activity on his part. There is no proof that

either Hall or the management review team had any knowledge of

these activities.

4. Deputy Terry E. Love

Deputy Terry Love was assigned to the Northern District in

March of 1974. At first he apparently did not complain, but later

complained to the Marshal about factionalism among the deputies,

harrassment of black deputies and their white friends, and bias

against the better educated deputies. Although his complaints appear to have been more personal than systemic, he did once object

to Supervisor Brookhart's physical and verbal abuse of prisoners

and to the inability of Chief Deputy Bowler and Supervisor Warren

to communicate with the deputies. Love never filed an EEO complaint, although he provided assistance to Deputies Frazier and

Morris and information to Deputy Thompson for use in their EEO

complaints. During his interviews with the review team, Love was

vociferous in expressing his complaints. He was described by team

members as the most hostile and disenchanted of the deputies, and

was said to have used extremely crude language in describing

management personnel of the team. He was especially upset about

alleged bias against better educated deputies, and persisted in

asserting that Marshal Angel was hostile toward the educational

process. He admitted, however, that Angel had relieved him from

overtime duty to accommodate his night school master's program.

Deputy Reilly's description of his conversation with Russell on this subject indicated the highly speculative nature of his apparent allegations regarding

"kickbacks." On cross-examination, Reilty appeared almost to withdraw his charge,

stating that he had no direct knowledge of kickbacks, denying mention of specific

persons to Russell, and characterizing his suspicions as jocular:

And in jest, I speculated that it would possibly lead me to believe, being a

trained investigator, as are other people in the office, that if one were to be

suspicious, and one were to speculate, that we were no longer permitted to make

our own reservations on any airline that might be going to that particular

destination, that the disproportionate number of airline flights on Eastern

would lead a suspicious person to believe that someone in the office either had a

friend at Eastern, or may receive some gratuity, but no names were mentioned

at all, and it was speculation on my part. But I in no way mentioned the name or

position of any individual that I may have suspected. (Tr. II, 97-98)

172
D. Management Team Report

In the spring of 1978, Director Hall became aware that the Northern District was beset by management and personnel problems

and was split into factions, one composed of certain deputies and

the other composed of the remaining deputies and management. He

also knew that a large number of EEO complaints had been filed by

employees in that district, and that some Northern District

deputies had contacted Congressman Fowler, although he did not

know their identities.

When Hall received Marshal Angel's request for reassignment of

Deputies Robert J. Frazier, Charles E. Morris, William C. Reilly

and Theodore Jordan in July of 1978, he did not act on it because he

felt that it was Angel's responsibility to take care of the problems

in his office. He stated:

[The request] allude[d] to situations which are strictly within

the District [of Marshal Angel], and I felt that Marshal Angel,

as the Manager of that District, and was paid a good salary,

and the compensation which we paid for included his handling

of situations such as this.

Hall did, however, ask William Russell, Director of Administration, to counsel Angel in solving the managerial and personnel

problems of the office.21

Throughout the fall and winter of 1978, Hall received reports on

the Northern District along with reports on the other 93 districts of

the Marshals Service.

On December 28, 1978, Marshal Angel travelled to headquarters

to discuss problems in his district with senior management officials in the Marshals Service. Angel met with Russell, Mead and

Butler, among others. At that meeting, Marshal Angel vented his

frustrations over a wide range of administrative matters as well as

certain personnel problems in his district. Angel discussed equipment requests and budget procedures as well as the disruptive

nature of some employees in the district and his inability to obtain

answers from headquarters on pending personnel actions. In

discussing how the headquarters had handled personnel actions

improperly, Marshal Angel brought up the "Frazier case,"

specifically, his suspension, and demanded answers before he left

the meeting. Director Hall and other senior staff were unwilling to

reach any conclusions at that time since they felt that Angel had

made a one-sided presentation. There was no evidence that the

names of the other three deputies (Morris, Reilly, and Love) were

mentioned during that meeting.

21

 Russell denied having been asked to do so.

173
Following Angel's visit, Hall was informed by members of his

senior staff that the problems in the Northern District had not improved, but were intensifying. Hall then became convinced that it

would be appropriate to appoint a management review team, a

problem-solving approach which the Service had used in several

other districts. William Russell was appointed to head a six-man

team which included Gary Mead, Chief of the Marshal Service Personnel Management Division; Benjamin F. Butler, Special Assistant to Hall for EEO matters;22

 Simon Barr, a member of the headquarters audit staff; Anthony J. Furkah, Chief Deputy for the

Washington D.C. District; and William N. Zamora, Chief Deputy in

the New Mexico District. The team was chartered to investigate all

facets of the Atlanta office's operation and to make any recommendation that would rectify the problems in that office. They were to

consult with all the deputies, the supervisory deputies, the Marshal

and the administrative staff, as well as members of the judiciary

and employees of the U.S. Attorney's office.

Beginning on January 15, 1979, the six-man team conducted a

three and one-half day investigation of the Atlanta office. They interviewed all members of that office, using two questionnaires

developed by team member Mead to gather information from those

interviewed. Those questionnaires were based on standard management evaluation forms used by OPM and the Department of

Justice.23

Following the investigation, the team made a written report to

Hall which incuded some ten findings and 54 recommendations.

The report found that the morale of the deputies in the district was

very low because of the lack of an effective chain of command,

perceptive performance evaluations, training opportunities, fair

rotation of assignments and opportunities for deputies to gain

supervisory experience. It stated that discipline was used to control employees rather than to encourage acceptable performance,

and there was no meaningful employee counseling. A wide range of

recommendations dealing with improvements in the structure and

management of the Atlanta office were made to correct each of

these deficiencies.24

22

 Butler was appointed in November 1978 to succeed Ray Lora as Special Assistant to the Director for EEO matters. He was responsible for managing the Service's

affirmative action program,

23

 While the Board has serious concerns about the adequacy of the specific questions that allegedly were designed to ferret out problems with the EEO procedures,

this issue was not explored in any depth with Service witnesses during crossexamination by the Special Counsel or by the intervenors. Unfortunately, the record

is insufficient on this important line of inquiry to warrant negative inferences

regarding why the Service failed to include more probing questions regarding the

adequacy of EEO procedures in the Atlanta office.

24

 The report contained no meaningful analysis, evaluation or recommendations

relating to the EEO program in the Northern District, and, in fact, confuses such

174
In terms of personnel, the report found that a majority of

employees and management felt that a small group of employees

was disruptive to the office and that inter-personal conflicts had

resulted in lower productivity and poor morale. The team determined that four deputies, Frazier, Morris, Reilly and Love, were

totally alienated and distrustful of district management and had

become so embittered that they could no longer present rational

arguments to support their concerns. Moreover, in their testimony

before the Board, the team members reiterated some of their findings and the bases upon which they were reached. Gary Mead

testified that Deputy Frazier was "paranoid" with respect to

district management, and was unable to support his general complaints. Mead testified that Love was extremely contemptuous of

the district management staff to whom he referred in extremely

crude terms. Russell testified that Deputy Reilly was "totally

polarized" and made unfounded allegations that district management took kickbacks from airlines used to transport prisoners.

The report was also critical of the manner in which the Atlanta office was managed. The report states that the mangement staff (Marshal Angel, Chief Deputy Bowler and Supervisor Brookhart) has

"assumed a totally defensive and inflexible posture." Lines of

communication had been damaged and personnel policies were not

being followed. In addition, it was found that the performance and

personalities of the Chief Deputy and one of the supervisory

deputies had contributed to the escalation of the situation and

would interfere with any attempts at positive change. The team

recommended the transfer of Chief Deputy Bowler. It further

recommended intensive training in inter-personal relations for

Supervisory Deputy Brookhart, suggesting that a demotion action

be initiated if he did not improve within 120 days.

j LEGAL ANALYSIS

i

A. The Proceeding and the Burden of Proof

The Special Counsel and counsel for the deputy marshals in this

case have objected to the Board's determination to conduct a hearing in response to Special Counsel's petition. Broadly stated their

contention is that Special Counsel has authority to make

dispositive fact findings and that the Board therefore exceeded its

statutory authority in holding an evidentiary hearing. This question can best be resolved by looking to the statutory provision that

articulates the powers of the Board as an adjudicatory body, and at

the statutory scheme providing actions under section 1206(c)(l).

Section 1205(a) confers upon the Board the plenary power to:

managerial deficiencies as lack of supervision and lack of rotation with the reasons

why employees filed EEO complaints.

175
(1) hear, adjudicate, or provide for the hearing or adjudication, of all matters within the jurisdiction of the Board under

this title, ... or any other law, rule, or regulation, and, subject

to otherwise applicable provisions of law, take final action on

any such matter,...

This language, read together with that which follows in subsections

(2), (3), and (4), indicates clearly that Congress constituted the

Board to be a quasi-judicial body whose functions are to adjudicate

(section 1205(a)(l), (2) and {4)) and to study and report to Congress

and the President (section 1205(a)(3))-

In light of subsections 1205(a)(l) and (2), it is clear that the adjudicatory roles described therein are involved in the corrective action proceeding set out in section 1206(c)(l)(B), which provides:

(B) If, after a reasonable period, the agency has not taken the

corrective action recommended, the Special Counsel may request the Board to consider the matter. The Board may order

such corrective action as the Board considers appropriate,

after opportunity for comment by the agency concerned and

the Office of Personnel Management.

The lack of specificity of the statutory language under which the

corrective action proceeding is conducted permits the Board to exercise broad discretion in determining what kind of hearing is appropriate to the almost endless variety of circumstances that may

be involved in corrective action requests. As the Board noted in its

June 20, 1979 opinion issued in conjunction with granting the section 1208(c) stay in this case, the Congress intended the Board to

make an independent determination whether "reasonable grounds

to believe" exist for purposes of granting a section 1208(c) stay.

That stay provides only for interim relief. It follows, a fortiori, that

the Board must make a determination that the weight of the

evidence supports the contention of the Special Counsel that corrective action is needed.^6

A close analysis of the operation of the subsection serves to buttress this conclusion. Under the provisions of section 1206{c)(l)(A),

the Special Counsel is empowered to report to the Board, the President, OPM, and the agency involved any determination, findings or

recommendations arising out of any investigation where he concludes that there are "reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken

25

 The conclusion that the Special Counsel, in his initial determination, and the

Board, in its final determination, perform sequential fact finding roles is reflected in

the legislative history which provides that "[wjhether the disciplinary action is a

result of ... reprisal ... is a matter for judgment to be determined in the first instance by the agency, and ultimately by the Special Counsel and the Merit Systems

Protection Board." S. Rep. No. 969,95th Cong., 2d Sess. 22 (1978).

176
which requires corrective action." This initial presentation of the

findings and recommendations is made for the purpose of affording

the agency knowledge that prohibited practices appear to be occurring or are about to occur in its operations. The agency head,

upon receipt of such information, logically would be expected to

look into the matter and undertake to correct it, and that is the apparent purpose of the subsection 1206(c)(l)(A) procedure. Subsection 1206{c}(l}(B) comes into play only in cases where, as here, the

agency declines to take the corrective action recommended.

Whenever that occurs, two governmental entities—the Special

Counsel and the agency—are in conflict regarding the manner in

which each interprets a factual situation. There is no ready way to

resolve the conflict between the two, since each is entitled to the

classic presumption that it, as a governmental instrumentality, is

acting in good faith and according to the law. See, e.g., Mazaleski v.

Truesdell, 562 F.2d 701, 717 (D.C. cir. 1977). It is in that

dichotomous posture that the matter comes to the Board. Thus,

although the statute itself is silent regarding the nature of the proceeding before the Board, it is manifest that the Board must employ

some appropriate method of inquiring into the relative validity of

the positions taken by the Special Counsel and the agency. The

Board is obliged to makes its factual determinations and cannot be

bound by those made by the Special Counsel.26

This is especially so in view of the purpose and operation of the

statutory scheme and the absolute discretion conferred upon the

Board under section 1206(c)(l){B). That discretion permits the

Special Counsel only to "request" the Board to consider the matter, whereupon the Board "may order such corrective action as the

Board considers appropriate." (Emphasis supplied.) The use of this

precatory language indicates that the Board can refuse altogether

to entertain the request. Certainly, it cannot be bound by the fact

findings that underlie it.27

In making its fact findings, the Board has concluded that it is appropriate to place the burden of proof on the Special Counsel and to

apply a preponderance of the evidence standard. This conclusion

26

 Indeed, in instances where issues of credibility or motivation are at issue, the

presentation of live witness testimony before the Board is particularly appropriate.

See Nasem v.Brown, 595 F.2d 801, 807 (D.C. Cir. 1979).

27

 This reading of the statute was adopted by the Comptroller General of the

United States in his decision dated November 27, 1979 (No. B-l 96680), where he

stated (p. 3):

... since the Special Counsel can only determine that there are reasonable

grounds to believe, not find, that an improper action has occurred and since he

can only recommend, not order, corrective action, we believe that the Civil Service Reform Act did not confer "appropriate authority" status [with power to

award attorney fees) under 5 U.S.C. § 5596 upon the Special Counsel.

177
comports with existing case law in analogous areas of administrative adjudication. The burden of proof question has arisen

in various circumstances, and the generally accepted rule is that

the proponent bears the burden of persuasion. See, e.g, McCormick,

Evidence § 355 (2d ed. 1972); 4 Mezinea, Stein, Gruff, Administrative

Law, § 24.03 (1979). The Special Counsel, as the entity asserting the

need for corrective action, certainly is the proponent in the proceeding now before the Board, and properly must bear the burden

of proof.

This leaves unanswered, however, the issue of the standard of

proof. Of the standards applicable in court proceedings, that of

preponderance of the evidence is most applicable to the situation

here. That is the standard most commonly invoked in agency proceedings (see, e.g., Polcover v. Secretary of Treasury 477 F.2d 1223

{D.C. Cir. 1973) cert, denied, 414 U.S. 1001 (1973)) and it is the one

that seems to be required to be applied under the Administrative

Procedure Act (5 U.S.C. § 556(a)).28 Although some courts have

fashioned a standard that is intermediate between

"preponderance" and "clear and convincing," that higher standard has been applied primarily in cases involving civil fraud29

and seems peculiarly inapplicable here.30 Accordingly, the Board

has adopted the preponderance standard as the standard most

suited to the type of case (corrective action) and the sanction to be

imposed (rectifying internal agency personnel procedures).

B. Whistleblowing by the Deputies

Special Counsel and the deputies contend that the disclosures to

Congressman Fowler and Senator Talmadge's aide were protected

by 5 U.S.C. § 2302(b)(8)(A). That section provides in material part

that—

28

 The language used in 5 U.S.C. § 556(d), however, confuses the issue. That

subsection provides that no rule or order may be issued "except on consideration of

the whole record or those parts therof cited by a party and supported by and in accordance with the reliable, probative, and substantial evidence." This type of

language has been interpreted as being the standard for review. See Woodby v. Immigration Service, 38 U.S. 276 (1966).

29

 Collins Sec. Corp. v. Sec. & Bxchg. Com'n, 562 P.2d 820 (D.C. Cir. 1977); Fairfax

Hospital Ass'n, Inc. v. Califano, 585 F.2d 602, 612 (4th Cir. 1978).

30

 Other courts have applied a standard lower than preponderance, but these cases

appear to be a clear minority. See Strachan Shipping Co. v. Shea, 276 F. Supp. 610

(S.D. Tex. 1967), aff'd, 406 F.2d 521 (5th Cir. 1969), cert, denied, 395 U.S. 921 (1969). It

should be noted, moreover, that the petitioner in that case was attempting to qualify

for workmen's compensation, and the court deliberately opted to apply a lesser standard, resolving all doubtful questions of fact in favor of the injured employee. 406

F.2d at 522, 523.

178
(b) Any employee who has authority to take, direct others to

take, recommend, or approve any personnel action, shall not,

with respect to such authority—

(8) take or fail to take a personnel action with respect to any

employee or applicant for employment as a reprisal for—

(A) a disclosure of information by an employee or applicant which the employee or applicant reasonably believes

evidences—

(i) a violation of any law, rule, or regulation, or

(ii) mismanagement, a gross waste of funds, an abuse of

authority, or a substantial and specific danger to public health

or safety.

The Marshals Service asserts that the disclosures were not protected "whistleblowing" because they were not made in the

reasonable belief that the matters disclosed constituted

mismanagement, gross waste, abuse of authority or threats to

public safety within the meaning of section 2302{b)(S)(A). Rather,

the Service contends that the deputies "blew the whistle" to prevent proposed disciplinary actions against them.

The parties essentially are in agreement that, in order to prove a

case of "whistleblowing," the proponent must demonstrate that a

protected disclosure was made and that retaliation resulted. It

necessarily follows that, to establish retaliation, it must be shown

that the official accused of taking the retaliatory action against the

whistleblower had knowledge that the protected disclosure has

been made and by whom.31

We turn first to the assertion of the Marshals Service that the

deputies' disclosures were not protected by section 2302(b)(8){B)

because of pending disciplinary actions. This argument is without

merit. It is true that two of the deputies, Frazier and Morris, had

been threatened with disciplinary actions at the time of their

31

 S. Rep. No. 696, 95th Cong., 2d Sess. 23 (1978), enumerates the knowledge requirement for placing responsibility on any individual vis-a-vis prohibited personnel practices:

Subsection (c) specifically designates the head of each Executive Agency as the

individual responsible for preventing prohibited personnel practices, and for

insuring that applicable civil service laws, rules, and regulations, including

merit system principles, are complied with. The same duty and responsibility is

placed on any individual within the agency who is given authority for personnel

management. Thus, to the extent that managerial or supervisory authority is

delegated, this section means that responsibility for insuring compliance with

the merit system, and potential disciplinary liability for failing to ensure compliance, will follow such a delegation. The delegation will not, however, relieve

the head of the executive agency or other top officials for ultimate responsibility for personnel actions and policies within the agency, to the extent that

such officials have knowledge or should have knowledge of the actions taken or

policies implemented.

179
disclosures.32

 That, however, does not dispose of the question

whether the deputies reasonably believed that the matters which

they disclosed to the Congressman and Senator constituted

"mismanagement... and abuse of authority, or a substantial and

specific danger to public health or safety" within the meaning of

section 2302{b}(8). The report of the management review team itself

establishes that there were serious management deficiencies in the

Atlanta office. Moreover, the deputies' complaints were not limited

to the Atlanta office, and Director Hall himself acknowledged that

a number of management problems existed in the Marshals Service

generally. In addition, as discussed elsewhere in this opinion, there

was a reasonable basis to believe that the manner in which some

EEO complaints and some disciplinary actions were handled in

Atlanta constituted both mismanagement and an abuse of authority. It is true, as the Marshals Service has emphasized, that Congress expressed great concern that the whistleblower provisions

not be abused by dissident employees who have no legitimate basis

for disclosures, but rather are bent upon disruption or upon

creating smoke screens to obscure their own wrongdoing.33 This,

however, does not mean that there can never be an element of selfinterest in whistleblowing activities protected by section 2302{b}(8).

Indeed, since the matters complained of by the deputies in this case

directly affect the deputies themselves, their interest is quite consonant with the public interest in improving the management and

operations of the Marshals Service.

Accordingly, since we have found that the deputies in this case

made disclosures protected by section 2302(bH8)» we turn to the

question whether, on the evidence before the Board, it can be found

that Director Hall acted with retaliatory intent when he ordered

their transfers. As we have noted, retaliation cannot be attributed

to Hall unless the record shows that he had knowledge the deputies

32

 No formal proposal of disciplinary actions had been made when the disclosures

occurred.

33

 The Senate Committee was quite explicit in expressing this concern (id. at 22):

Finally, it should be noted that this section is a prohibition against reprisals.

The section should not be construed as protecting an employee who is otherwise

engaged in misconduct, or who is incompetent, from appropriate disciplinary

action. If, for example, an employee has had several years of inadequate

performance, or unsatisfactory performance ratings, or if an employee has

engaged in action which would constitute dismissal for cause, the fact that the

employee "blows the whistle" on his agency after the agency has begun to initiate disciplinary action against the employee will not protect the employee

against such disciplinary action. Whether the disciplinary action is a result of

the individual's performance on the job, or whether it is a reprisal because the

employee chose to criticize the agency, is a matter of judgment to be determined

in the first instance by the agency, and ultimately by the Special Counsel and

the Merit Systems Protection Board.

180
whose transfers he ordered had engaged in protected disclosures. It

is upon this point that the case presented by the deputies and

Special Counsel fails. We are compelled by the record here to conclude that Director Hall did not have actual or constructive

knowledge that these deputies had engaged in protected activities.

Rather, he acted in full reliance upon the recommendation of the

management review team which, as discussed at some length

elsewhere in this opinion, was for the most part based upon sound

management considerations.

Special Counsel and the deputies dwell at great length in their

briefs upon the facts that, some six months before Director Hall

ordered the transfers in issue, Ray Lora, Franklin Vandergrift and

arguably Marshal Angel, knew that disclosures had been made to

Congressman Fowler and to Senator Talmadge's office and that the

names of at least some of the deputies were known to them.34 The

essential fact that Special Counsel fails to grasp, however, is that

nowhere in this regard is there any persuasive evidence to support

the inference that Director Hall knew that four deputies in this case

had made protected disclosures. Hall testified that he did indeed

learn in the summer of 1978 that some deputies in the Northern

District had made some congressional contacts. He also testified,

however, that he did not know at the time he ordered the transfers

who those deputies were, and that he did not consider the congressional contacts in reaching the decision. On the contrary, he

testified that he relied exclusively on the recommendation of the

review team. This testimony was not shaken on cross-examination

and no contrary evidence was offered.

Special Counsel seems to suggest that the Board must infer that

the names of the deputies necessarily were known to Hall because

of the nature of the events involved in this case. The evidence,

however, is to the contrary. So far as the record shows, Vandergrift,

who was sent to Atlanta by John Twomey, Deputy Director of the

Marshals Service, never discussed the inquiry from Fowler's office

with Hall or any member of the Russell team.

The extent of Lora's communication to Hall regarding his trip to

Atlanta was to tell Hall that he concurred in Marshal Angel's

transfer recommendation. There is no persuasive evidence that

Angel ever discussed the congressional contacts of the deputies

with Hall. The Marshals Service, like most federal agencies,

routinely receives congressional inquiries, and on this record, there

34

 Special Counsel suggests in his post-trial brief that Angel's and Lora's recommendations that Deputies Frazier, Morris, Keilly be transferred were prohibited

personnel practices within the meaning of 5 U.S.C. §2302(b)(8). This argument is, of

course, raised too late. Moreover, it is without any merit since those recommendations were made prior to the effective date of the Civil Service Reform Act, and, accordingly, would not be unlawful under its terms.

181
is no reason to believe that this one was so extraordinary as to command the personal attention of Hall, who had delegated responsibility for handling such inquiries to subordinates within the Marshals Service.

Special Counsel also places great reliance upon the deputies'

testimony that they told members of the management review team

about their disclosures to Congress. He argues that Director Hall

must, therefore, be charged with actual or constructive knowledge

of the disclosures. The difficulty with this argument is that it is

predicated upon the self-serving testimony of the four deputies

whose transfers were ordered. The testimony of Deputies Frazier

and Love on this point was not consistent on cross-examination.

Moreover, the testimony of George Kelley, a union representative

who sat in on the interviews, was not consistent with the testimony

of Frazier and Love. In contrast, the members of the management

review team uniformly testified that they did not know that the

four deputies whose transfers they recommended had made

disclosures to the offices of Fowler or Talmadge. Indeed, Special

Counsel and counsel for the deputies did not even cross-examine

four of the six members of the team—Furkah, Butler, Bar and

Zamora—on this point.

Of course, we cannot speculate as to what might or might not

have been established had Special Counsel elected to use his broad

investigatory authority to conduct a full exploration of the facts

underlying this case. Suffice it to say that he chose instead to rely

upon his view that the Board must infer from the unpersuasive,

self-serving testimony of the deputies, who claimed to have told the

management review team that they were whistleblowers, that Hall

had actual knowledge of the whistleblowing. The result, quite

simply, is a failure of proof on the question of retaliatory motive on

the part of Hall.

Moreover, contrary to Special Counsel's contention, there is no

basis in this case for reliance upon the "small plant" doctrine

sometimes applied in certain labor cases. The doctrine recognizes

that an inference of employer knowledge of an employee's protected union activity may arise where the employee "engaged in inplant union activity and the plant is relatively small." A. T. Krajewski Manufacturing Co. v. NLRB, 413 F.2d 673, 676 {1st Cir. 1969).

Director Hall, however, is not the supervisor of a small group of

employees. Rather, he is responsible for some 1,400 deputies

employed nation-wide in the 94 districts of the Marshals Service.

Thus, he cannot reasonably be charged with the specific knowledge

of the employees in any single one of those districts. This is

especially so since there was no further expression of interest in the

Atlanta office by Congressman Fowler following Lora's visit in

July of 1978. Moreover, assuming that Marshal Angel had the

182
requisite knowledge and acted with retaliatory intent in recommending the transfers of Deputies Frazier, Reilly, Morris and Jordan, that recommendation was a nullity since Hall did not act on it.

Instead, Hall ordered the transfers of Chief Deputy Bowler and

Deputies Love, Reilly, Morris and Frazier, acting in reliance upon

the recommendations of the management review team. For the most

part that recommendation was based upon sound management considerations. The deputies were hostile, frustrated, disruptive and

demonstrably unable to function effectively in Atlanta.

As the management review team readily recognized, the alienation of the four deputies was attributable in part to bad management in the district. That, however, does not indicate that the

recommendations of the management review team were unsound,

but instead favors a contrary conclusion. It must be remembered

that the team also recommended the transfer of Chief Bowler, a

member of the management staff responsible for much of the

dissension because of his harassment of, and isolation from, these

and other deputies, and his inability to establish workable rules

and procedures in the office. Further, the team recommended steps

to improve the management techniques of Marshal Angel and other

members of the supervisory staff. The team acknowledged that the

deputies whose transfer was proposed have excellent potential, and

that their transfers can be expected to have a positive effect on

their careers by providing them with an improved working environment. Thus it is apparent that the recommendations of the team

were sound, in light of the circumstances in Atlanta, and that they

were designed to accommodate the competing needs of the dissident deputies and those of the Atlanta office.

C. Deputies'Exercise of Appeal Eights

The Special Counsel further contends that the involuntary

transfers of Deputies Frazier, Morris, Reilly and Love were

ordered, at least in part, as a reprisal for their filing of EEO complaints and their involvement in the EEO activities of other

deputies in the Northern District of Georgia and that such actions

constituted a violation of 5 U.S.C. § 2302<b}(9).35 Thus a threshold

question is whether the filing of an EEO complaint or participation

35

 Section 2302(b)(9) provides:

Any employee who has authority to take, direct others to take, recommend, or

approve any personnel action, shall not, with respect to such authority—. .. take or fail to take any personnel action against any employee or applicant for employment as a reprisal for the exercise of any appeal right granted

by any law, rule, or regulation.

A personnel action for purposes of section 2302(b)(9) includes a transfer. 5 U.S.C.

§ 2302(a)<2)(iv|.

183
in an agency's internal administrative EEO complaint process constitutes "the exercise of any appeal right granted by any law, rule,

or regulation" for purpose of applying section 2302.

The Marshals Service argues that because reprisals for job

discrimination complaints are prohibited by 5 U.S.C.

§ 2302(b)(l)(A), which incorporates the prohibitions of employment

discrimination found in Title VII of the Civil Rights Act of 1964 (42

U.S.C. § 2000e et seg.), such reprisals are outside the scope of section 2302(b)(9).36

 We conclude that such a narrow reading of section

2302(b)(9) is neither required nor warranted.37 The various provisions of section 2302(b) overlap to some extent in proscribing certain agency actions. For example, the prohibitions of section

2302{b)(10)38 and (b)(ll)39 encompass a variety of personnel actions

or requirements which would also be cognizable under other

subsections. The Service's argument also ignores the statutory

scheme, which in (b)(l) prohibits all discriminatory personnel actions proscribed by Title VII40

 and in (b)(9) prohibits reprisals for

the exercise of Title VII and other remedial rights. We believe this

36

 The Marshals Service appears to concede that a claim of reprisal for EEO activities would constitute a cognizable claim of prohibited personnel practice under

section 2302(b)UHA). We agree. The protections against employment discrimination

on the basis of race, color, religion, sex or national origin enjoyed by private

employees under Title VII have been extended to federal employees under section

717 of the Act (42 U.S.C. §2000e-16), enacted as part of the Equal Employment Opportunity Act of 1972. The same substantive and remedial rights provided private

employees by Title VIJ were granted to federal employees by section 717. Douglas v.

Hampton. 512 F.2d 976, 981 (D.C. Cir. 1975); Parks v. Dunlop, 517 F.2d 785, 787 (5th

Cir. 1975). See S. Rep. No. 415, 92d Cong., 1st Sess. 16 (1972). See Chandler v.

Roudebush, 425 U.S. 840 (1976). These protections include the right under section

7Q4(al (42 U.S.C. §2000e-3(a)l to be free from reprisals for opposition to employment

practices made unlawful by Title VII or for participation in any manner in the

remedial processes established by the statute. Ayon v. Sampson, 547 F.2d 446, 450

(9th Cir. 1976); DeMedina v. Reinhardt, 444 F. Supp. 573, 580 (D.D.C. 1978); Hunter v.

Stetson, 444 F. Supp. 238, 240 (E.D.N.Y. 1977). The Reform Act states in subsection

(d) of section 2302 that such section "shall not be construed to extinguish or lessen

any effort to achieve equal employment opportunity through ... any right or

remedy available under... section 717."

37

 Nor can we accept the Service's narrow reading of "any appeal right" as including only rights to review of final agency actions. We believe the remedial

aspects of the statute require a broader reading of the phrase.

38

 This subsection bars discrimination "on the basis of conduct which does not

adversely affect the performance of the employee or applicant or the performance of

others..."

39

 This subsection prohibits personnel actions which violate "any law, rule, or

regulation implementing, or directly concerning, the merit system principles contained in section 2301."

40

 This prohibition includes retaliation for "opposition" to unlawful employment

practices as defined in section 704(a); such opposition does not need to be a part of a

formalized process. See Sias v. City Demonstration Agency, 588 F.2d 692, 695 (9th Cir.

1978).

184
interpretation gives section 2302(b)(9) its plain meaning and accordingly conclude that an agency's internal administrative EEO process is both "granted by," and indeed required by and enacted pursuant to "law, rule, or regulation. See 29 C.F.R. Part 1613. This

compels us to conclude that it is a prohibited personnel practice

under section 2302(b)(9) to transfer a federal employee for the exercise of remedial or appeal rights provided by section 717 of Title

VII and regulations implementing the statute.

Even if the Board were to accept the argument that the matters

covered by subsections (b)(l) and (b)(9) are exclusive of each other,

it is clear that the Service was on notice that the Special Counsel

was seeking relief for actions he alleged were taken in part in

reprisal for participation in the EEO remedial process. Administrative pleadings are liberally construed, and technical

pleading rules will not be applied by the Board in a proceeding

under section l206(c)(l)(B) to preclude its ordering appropriate corrective action where the agency has had notice of the substance of

the matter alleged and the opportunity for comment provided by

that section. "So long as fair notice is afforded, an issue litigated at

an administrative hearing may be decided by the hearing agency

even though the formal pleadings did not squarely raise the issue."

National Rlty. & C. Co. v. Occupational S. & H.R. Com'n, 489 F.2d

1257, 1264 (D.C. Cir. 1973). The record in this case demonstrates

that retaliation against the deputies for their EEO activites was an

issue recognized by all parties from the outset.

Since we have concluded that reprisal or retaliation against an

employee who exercises rights or participates in an administratively mandated EEO proceeding constitutes a violation of subsection (b)(9), we must turn to an analysis of what acts, and what

evidence thereof, will constitute proof of such reprisal. In construing (b)<9) the Board will be guided, without being bound, by

judicial interpretations of federal statutes containing similar prohibitions against reprisals.41

 Under all these statutes, the

guarantee of freedom from reprisal extended to persons who invoke

the aid of a remedial administrative process is designed to insure

the integrity of the process. Protection against reprisal is necessary

to prevent employer intimidation of prospective complainants and

witnesses, which would dry up the channels of information and

undermine the implementation of the statutory policy which the administrative process was established to serve.42

 Thus section

41

 Statutory provisions making it unlawful for an employer to discriminate

against an employee for use of the remedial procedures established elsewhere in the

statute include section 8(a)(4) of the National Labor Relations Act (29 U.S.C.

§158<a)<4)), section lMa)(3) of the Fair Labor Standards Act (29 U.S.C. §215{a)(3|), and

section 704(a) of Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e-3(a»).

42

 NLRB v. Scrivener, 405 U.S. 117, 122 (1972); Mitchell v. Robert Demario Jewelry,

Inc., 361 U.S. 288, 292 (1960).

185
704(a) of Title VII (42 U.S.C. § 2000e-3(a)} makes it unlawful for an

employer to discriminate against an employee "because he has

made a charge, testified, assisted, or participated in any manner in

an investigation, proceeding, or hearing under this subchapter." A

violation of section 704(a) is shown when an employee (or applicant

for employment) establishes that he or she engaged in an activity

protected by this section; that he or she subsequently was treated

in an adverse fashion by the employer; and that there is a causal

connection between the protected activity and the adverse action(s). Hochstadt v. Worcester Foundation, 425 F. Supp. 318, 324 (D.

Mass. 1976), aff'd, 545 F.2d 222 (1st Cir. 1976).43 The causal connection which the employee must show merely consists of an inference

of retaliatory motive for the adverse employer action, EEOC v.

Locals 14 and 15, Intern. U. of Oper, Eng., 438 F. Supp. 876, 881

(S.D.N.Y. 1977), rev'd in part on other grounds, 553 F.2d 251 (2d Cir.

1977). We believe the reasoning of the Title VII cases is particularly

instructive in defining the elements constituting employer reprisal

for protected employee activities under section 2302(bK9) in light of

our conclusion that subsections (b)(l) and (b)(9) are complementary

rather than mutually exclusive.44

Turning to the facts of the instant case, the Board has found that

all deputy marshals in this case participated, to varying extents, in

Marshals Service EEO procedures. However, the Board is unable

to conclude from the record that the decision makers responsible

for the transfer at issue considered the EEO activities of any deputy besides Robert Frazier in recommending or ordering the

transfers. There is no persuasive evidence that the director or the

management review team were even aware of protected EEO activities by Deputies Reilly and Love. Retaliatory motive, of course,

presupposes knowledge of the activity which is sought to be

discouraged.48 Given such knowledge, however, motive must in

almost all situations be inferred from circumstantial evidence.

Courts have consistently permitted such inferences in employment

discrimination cases. Loeb v. Textron, Inc., 600 F.2d 1003, 1014 (1st

Cir. 1979); Rutherford v. American Bank of Commerce, 565 F.2d 1162,

1164 (10th Cir. 1977); Gates v. Georgia-Pacific Corp., 326 F. Supp.

397, 399 (D. Or. 1970), aff'd, 492 F.2d 292 (9th Cir. 1974)

43

 A finding of reprisal for protected exercise of remedial rights does not, of

course, decide the merits of the underlying claim. See Pettway v. American Cast Iron

Pipe Co., 411 F.2d 998, reh. den., 415 F.2d 1376 (5th Cir. 1969).

44

 The elements of prohibited retaliation under section 8(a)(4) of the National

Labor Relations Act (29 U.S.C. §168(a)(4)) are essentially the same. SeeDubin-HaskeU

Lining Corp. v. NLRB, 386 F.2d 306, 309 (4th Cir. 1967), cert, denied, 393 U.S. 824

H968).

45

 Although two of the team members and the director were also aware that Dep-

. uty Morris had filed an EEO complaint, there is no convincing evidence on the

record that this fact was considered. See discussion,-mfro, at p. 189.

186
In the case of Deputy Frazier, it is manifest on the record, as summarized in our findings of fact, that he was subjected to systematic

threats and harassment in retaliation for his EEO activities from

the time he became an EEO counselor in 1974 through his transfer

in January of 1979. Frazier's superiors repeatedly threatened him

with long-unresolved disciplinary charges in a concerted effort to

thwart his efforts to counsel other deputies regarding EEO complaints and to obtain redress for his own EEO complaints.46

 Defiance of statutory provisions conferring appeal rights is reprehensible. The personal harassment of Frazier, even when he attempted

to obtain time off for psychiatric treatment, is even more shocking.

In contrast to the whistleblowing activities of the deputies,

Frazier's EEO activities were known to and considered by the

management review team in recommending his transfer. Gary

Mead, Chief of Personnel, testified that the team members discussed Frazier's EEO complaints in determining that he should be

transferred. Benjamin Butler was appointed Hall's special assistant for EEO affairs in November, 1978. He was a member of the

review team and, because of his position, obviously knew the

nature and extent of Frazier's EEO activities. In light of this, and

since Marshals Service Director Hall specifically directed the team

to investigate the large number of EEO and other complaints in the

Northern District, Hall himself undoubtedly was aware of the extent of Frazier's EEO involvement. Not only were the director of

the Marshals Service and his management review team aware of

Frazier's unresolved complaints alleging improper interference

with th$ retaliation for his activities as an EEO counselor, they

also had specific knowledge of the unusually long history of

Frazier's efforts to obtain relief from allegedly retaliatory

actions;47 the substantial nature of his allegations; and the fact that

the inescapable effect of any involuntary transfer of Frazier would

be to frustrate further his efforts to exercise his appeal rights.

With respect to intent, the evidence amply demonstrates that

there were many instances in the Atlanta Office when personnel actions were taken against Frazier immediately after protected EEO

activities. Because of the large number of these incidents and their

similarity, the Board infers that the management of the Atlanta office was continuously retaliating against Frazier for his EEO activities. This retaliatory intent is attributable to Mr. Hall and the

headquarters staff because of its widespread nature and because of

the repeated direct involvement of headquarters in Frazier's EEO

46

 These charges, which were used in bad faith against Prazier by the Northern

District management, are the same charges which the Marshals Service contends

destroy Frazier's credibility as a whistleblower in this case.

47

 We reiterate our findings, supra, that the Service did little, if anything, to

resolve Frazier's complaints in a timely fashion.

187
matters. From this, the Board infers that Mr. Hall was at least a

silent participant in retaliation against Frazier.

The Board does not dispute the general proposition that reassignment of employees, based on interpersonal conflicts and resulting

tensions which interfere with productivity, is a legitimate tool of

management.48 For this reason alone, resolution of the question of

management motivation, based in large part on circumstantial

evidence, is a difficult and close matter. When there is evidence of

both legitimate and retaliatory motives for the same employer action, varying standards have been applied under both Title VII and

the National Labor Relations Act in determining the degree to

which the impermissible motive must influence the action so as to

render it illegal. Some courts have found a prohibited reprisal for

protected activity where the retaliatory motive played any part in

the employer's decision.49 Other courts require a showing that

retaliation was the employer's primary or dominant motive.50 We

believe that the appropriate test for finding a violation of section

2302(b)(9) is whether retaliation for the exercise of appeal rights is a

significant factor in the challenged personnel action. The Special

Counsel has satisfied this standard with respect to the role played

by retaliation in the decision to transfer Deputy Robert Frazier.

In the case of the other deputies, we cannot find from the

evidence that they were transferred because of their EEO activities. The Special Counsel and the deputies have failed to show

that the director of the Marshals Service and the review team had

any knowledge that Deputies Reilly and Love had participated in

48

 The Special Counsel, contrary to Ms representations at the pretrial conference,

argued in his post-trial brief that the proposed transfers violated Justice Department regulations and, as a result, 5 U.S.C. §2302(b)(ll). This subsection prohibits

personnel actions which violate a law, rule, or regulation implementing or directly

concerning a merit system principle. Because of the Special Counsel's failure to

raise this issue in his stay applications, report of investigation, petition for corrective action, or at the hearing, the Board considers it unfair at this date to decide an

issue not pleaded, tried, or adequately addressed by any of the parties. Moreover,

we view this question as immaterial in light of our determination that the transfers

of Morris, Reilly and Love were based on sound management considerations and

that Frazier's transfer violated section 2302(b)(9(. A recent decision the Tenth Circuit Court of Appeals, Hernandez v. Alexander, (No. 78-1550, Oct. 18, 1979), specifically recognized that an employing federal agency may, as a "legitimate management decision," transfer an employee whose "intransigence and opposition to

management decisions at all levels" created such "intense personal conflicts" as to

constitute a "serious threat" to the agency's mission.

49

 E.g., NLRB v. Retail Store Employees Union. Local 876, 570 F.2d 586, 590 (6th Cir.

1978), cert, denied, 439 U.S. 819 (1978); E.E.O.C. v. Kallir, Philips, Ross, Inc., 401 F.

Supp. 66, 72 n. 17 (S.D.N.Y. 1975), supplemented, 420 F. Supp. 919 (S.D.N.Y. 1976),

aff'd, 559 F,2d 1203 (2d Cir. 1977}, cert, denied, 434 U.S. 920U977).

50

 E.g., NLRB v. South Shore Hospital, 571 F.2d 677, 684 (1st Cir. 1978); Tidwell v.

American Oil Co., 332 F. Supp. 424,430 (D. Utah 1971).

188
EEO procedures.51

 The decision-makers knew that Deputy Morris

was one of a considerable number of deputies in the Northern

District jwho had filed EEO complaints. However, the record does

not show, as it does in Frazier's case, that Morris' exercise of appeal rights was considered in arriving at the transfer decision. Morris' EEO activities were not remarkable because of their extent, the

seriousness of the allegations made, or the time during which they

were left unresolved. The director and the review team's mere

knowledge of these activities does not support an inference of

retaliation.52

The Special Counsel has alleged that grievances, including oral

grievances, are also cognizable under section 2302(b)(9) as "the exercise of any appeal right granted by any law, rule, or regulation."

We find that there is insufficient evidence in the record to ascerain

whether the employees involved were covered by a master agreement providing for a negotiated grievance procedure. The Special

Counsel has provided us with nothing to indicate whether, when, or

what kind of master agreement might have existed, other than the

reference in Marshal Angel's memorandum to Deputy Morris dated

May 17, 1978, giving Morris notice of his right to reduce his oral

grievance to writing. Marshal Angel referred to a "master agreement between the Marshals Service Locals AFGE, Article 24." Accordingly, we have no way of knowing whether the regulations

under 5 C.F.R. § 771.101 et seq. apply, or whether these grievances

fall under section 771.117, entitled Negotiated Grievance System,

which provides:

This subpart does not apply to a grievance system established

through a negotiated agreement between an agency and a labor

organization to which exclusive recognition has been granted.

Since the record is barren of evidence regarding the contents of a

master agreement or the time it was in effect, we have no basis for

61

 See our findings of fact, supra, at pp. 22-24.

52

 We need not decide whether the "but for" rule enunciated in Mt. Healthy City

School Dist. v. Doyle, 429 U.S. 274 (1977) is applicable in appeal reprisal cases under

section 2302(b)(9). In this case, the Supreme Court announced that the discharge of a

public employee partially in retaliation for the exercise of First Amendment rights

would not be set aside if the public employer could show by the weight of the

evidence that the discharge would have occurred for other valid reasons regardless

of the protected activity. Here, the Marshals Service has not established by the

weight of the evidence that Mr. Frazier would have been transferred in spite of his

EEO-appeal activities. Moreover, because of the strong inferences of reprisal which

support a determination that the reasons advanced for Frazier's transfer by the

Marshals Service were mere pretexts for the actual retaliatory reasons, we are not

required to rule on whether the mere "articulation of a legitimate nonretaliatory

reason" for Mr. Frazier's transfer would rebut the Special Counsel's prima facie

case of retaliation. Compare, Board of Trustees v. Sweeney, 439 U.S. 24 (1978), with

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

189
ascertaining whether the grievances referred to by the Special

Counsel are timely, in the proper format, were filed with the proper

person, and so forth. Certainly we cannot therefore find that the

grievances constitute an exercise of a "legitimate appeal right"

under 5 U.S.C. § 2302(b)(9). See S. Rep. No. 969, 95th Cong., 2d

Sess. 22 (1978).

CORRECTIVE ACTION

Our finding that a prohibited personnel practice was committed

by the Marshals Service with respect to Robert Frazier requires us

to address the issue of whether and to what extent corrective action

is warranted. 5 U.S.C. § l206(c)(l)(B) provides that the Board "may

order such corrective action as the Board considers appropriate."53

Words such as "may"54 and "consider appropriate"55 show a clear

Congressional intent to provide the Board with broad discretion in

the type and scope of the corrective action ordered, if any.56

The message is unmistakable: the Reform Act is aimed at protecting against and correcting merit system abuses, as the very name

of this Board indicates. Therefore, upon its finding of a prohibited

personnel practice, the Board, in ordering corrective action, must

determine if the practice or practices were caused by underlying

and systemic abuses. Thus in an appropriate case, corrective action

may need to be of substantially broader scope than mere correction

of a specific personnel action. Factors to be considered by the

Board in determining the scope of corrective action include the

53

 The Civil Service Commission had no authority to order corrective action upon

a finding of merit system abuse. Vaughn v. Rosen, 523 F.2d 1136, 1146 (D.C. Cir.

1975). The Civil Service Reform Act, as proposed by the President, did not empower

the Board to order corrective action; rather, it left the taking of corrective action to

the discretion of the agency involved. See S. 2640, 95th Cong., 2d Sess. (1978) and

H.R. 11280, 95th Cong. 2d Sess. (1978), §202(a). As passed by the House, section

202{a) provided for corrective action in a manner similar to that provided by the present section 1206(c)(l)(B). The bill passed by the Senate provided for mandatory corrective action only if the Special Counsel found a pattern of prohibited practices.

Both provisions ultimately were included in the Act respectively as sections

1206<c)(l)(B) and 1206(h).

64

 Ordinarily the word "may" is considered permissive. 2A Sands, Sutherland

Statutory Construction §57.03 (4th ed.).

65

 Under 49 U.S.C. §1482(c) (1964), the Civil Aeronautics Board was in certain instances authorized to issue an "appropriate order." In interpreting this language

the D.C. Circuit ruled:

... absent a showing of abuse of discretion, it is the Board's sole responsibility

to decide upon the appropriate action and remedy in individual cases. (Emphasis

supplied.).

Capitol International Airways, Inc. v. CAB, 392 F.2d 511, 515 (1968).

56

 It is clear that, even upon a finding of a technical prohibited personnel practice,

the Board is not automatically compelled to set aside the personnel action in question or order any corrective action at all.

190
nature of the prohibited personnel practice, its root causes, and the

likelihood of future similar abuses.

The national policy with respect to equal employment opportunity is clear-cut and strongly stated. Nevertheless, in this case

the Board has found considerable evidence that for a number of

years the U.S. Marshals Service, particularly in its Atlanta office,

retaliated against Robert Frazier because of his EEO-related activites. While the Board finds significant evidence of reprisal by

the Marshals Service against only one of the four deputies, the

evidence of other EEO-related abuses not arising to the level of a

prohibited personnel practice is strong. The Board has found that

the Atlanta office itself was divided along racial lines. Moreover,

the Marshals Service itself admitted that it recognized that

disproportionate number of EEO complaints arose in Atlanta.

Many of the EEO complaints filed by the petitioners in this case

were either ignored or improperly processed. In other cases, the investigation of EEO matters was careless. In sum, no regular EEO

process within the spirit or letter of Title VII of the Civil Rights

Act of 1964 was or is in place and being implemented in the Atlanta

U.S. Marshals Service office.

The Board finds this state of affairs to be prima facie evidence of

merit system abuse warranting specific and detailed corrective action with respect to all phases of equal employment opportunity. If

immediate steps are not taken to correct this situation in the Atlanta office, it is the firm belief of the Board that the federal government's goal of equal employment opportunity for all will be

seriously unpaired. Moreover, in the absence of correction there

will be a greater likelihood of further prohibited personnel practices of the kind in issue here. For these reasons, the Board has

determined it appropriate to order broad-based remedial corrective

action, in addition to particular actions to provide immediate relief

to Deputy Frazier.

Inasmuch as the Board has found a prohibited personnel practice

with respect to the involuntary transfer of Robert Frazier, that

transfer is set aside.57 Secondly, the Board orders the Marshals

Service to cease immediately from retaliating against Deputy

Frazier for his EEO activities. The Board's order is directed to the

Marshals Service, including, in particular, all those in authority in

the Atlanta office. In order specifically to correct the EEO problems in the Atlanta office, the Board believes it is essential that the

content of this opinion and accompanying order be communicated

to all Marshals Service employees and that they be reminded of the

statutory responsibility of the Marshals Service to carry out EEO

principles. Furthermore, to insure compliance with these prin57

 Of course, Mr. Frazier may be voluntarily transferred elsewhere, but only With

his consent.

191
ciples, the Board will require both the immediate appointment of an

EEO counselor from within the ranks of the Atlanta office and the

appointment of a senior-level Equal Employment Opportunity Officer for the northern District of Georgia. The latter individual will

guarantee compliance with the Board's order, conduct EEO

training, and insure that prompt and fair resolution of EEO complaints is accomplished. This officer should have extensive EEO

counseling and complaint management experience and should not

previously have been involved with the Atlanta office.68

To insure that further retaliation and other EEO violations of the

type found by the Board do not continue, the Board will require

periodic reports from the Marshals Service on pending EEO cases.

In this regard, the Board has decided to impose a 90-day deadline

for the investigation of all unresolved EEO complaints.59 This

deadline is consistent with the recent Congressional mandate to

render complete and final agency decisions on EEO complaints

within 120 days. 5 U.S.C. § 7702.60

Because Director Hall reports to the Department of Justice, the

Department of Justice has the responsibility to insure that he and

Marshals Service officers and employees comply with all terms of

this order.

In summary, it is the conclusion of the Board that detailed and

specific steps must be taken immediately by the Marshals Service

to forestall a recurrence of the present situation with respect to

Deputy Frazier. The integrity of the merit system principles will

continue to be undermined if the EEO problems in the Northern

District are not corrected immediately.

For the Board:

RUTH T. PROKOP,

Chairwoman.

ERSAH.POSTON,

Vice Chair.

WASHINGTON, D.C., December 17, 1979

68

 Since the activities of this designated senior-level equal employment officer

cannot reasonably be viewed as requiring either the full-time services of any individual or the permanent or temporary assignment of that individual to the Northern District of Georgia, it would be particularly appropriate to assign this responsibility to a Justice Department employee who can perform these functions, including such visits to the Atlanta office as may be appropriate, on a part-time basis,

69

 Many of the EEO complaints in this case had been pending for more than one

year without completion of an EEO investigation.

60

 Requiring the investigation to be completed within 90 days will provide the

minimum allowable investigation period consistent with completion of the cases

within 120 days. Thus, in addition to the time permitted for investigation, the Board

will allow a minimum of 30 days for the Justice Department to complete its final

hearing and render a decision on the case.

192
UNITED STATES OF AMERICA

BEFORE THE MERIT SYSTEMS PROTECTION BOARD

In the matter of:

ROBERT J. FRAZIER, JR.,

CHARLES E. MORRIS,

WILLIAM C. REILLY,

TERRY E. LOVE,

AND

WILLIAM E. HALL, DIRECTOR

U.S. MARSHALS SERVICE

CHARLES F.C. RUFF,

ACTING DEPUTY ATTORNEY GENERAL,

U.S. DEPARTMENT OF JUSTICE,

AND

BENJAMIN R. CIVILETTI,*

ATTORNEY GENERAL OF THE

UNITED STATES

Docket No. SC-79-3

ORDER OF CORRECTIVE ACTION

1. The involuntary transfer or reassignment of Deputy Marshal

Frazier as effected on January 29 and May 22,1979, is permanently

enjoined.

2. It is hereby ordered that the United States Marshals Service

cease retaliating against Deputy Frazier or any other employee of

the United States Marshals Service Office for the northern District

of Georgia who has filed, assisted in filing, or otherwise participated in the filing, investigation or adjudication of any charge

of discrimination or discriminatory reprisal pursuant to 29 C.'F.R.

Part 1613 and Sections 272 and 274 of the U.S. Marshals Manual.

3. It is further ordered that Director William Hall shall:

A. Communicate within five days to all employees of the

Northern District of Georgia the adherence of the United

States Marshals Service to equal employment opportunity

principles including those of non-reprisal.

B. Within five days, post a copy of this Order in a conspicuous place within each establishment of the Marshals Service in the Northern District of Georgia for a period of 60 days.

C. Within 60 days, compile and serve on the Board and all

parties a list of unresolved complaints and charges of

When the Special Counsel first brought this matter before the Board, the Attorney General was Honorable Griffin B. Bell and the Deputy Attorney General was

Benjamin R. Civiletti.

193
discrimination and reprisal in the northern District of

Georgia. Such list shall reflect: the date filed; the nature of the

complaint; and what, if any, action has been taken in accordance with Marshals Service Manual Sections 272 and 274 or

29 C.F.R. Part 1613.

D. Appoint, within ten days of this Order, an EEO

Counselor for the Northern District of Georgia as described in

29 C.F.R. § 1613.204(c> and take such steps as may be

necessary to insure that the person appointed conducts those

responsibilities described in 29 C.F.R. § 1613.213. If at any

time during the period this Order is in effect such positions

becomes vacant another appropriate individual shall be appointed within 10 days.

E. Within 20 days, designate an employee experienced in

the handling of EEO matters, haying the rank of GS-15 or

above, to be the Special EEO Officer for the Northern District

of Georgia for purposes of monitoring the implementation of

all EEO complaint processing in the Northern District of

Georgia, and guaranteeing compliance with this Order.

F. Insure that the Special EEO Office conducts training of

all supervisors and management officials within the Northern

District of Georgia on EEO procedures found at 29 C.F.R. Part

1613 and Section 272 and 274 of the Marshals Service Manual

within 60 days.

G. No later than January 2 and July 1 of the years 1980 and

1981, and commencing July 1, 1980, serve upon the Board and

all parties a written report containing the following information:

i) the number of unresolved and resolved EEO complaints

in the Northern District of Georgia based on the following time

periods: from the effective date of this Order to June 1, 1980;

from June 2,1980 to December 1,1980; from December 2,1980

to June 1,1981; and from June 2,1981 to December 1,1981.

ii) the minimum, maximum and average processing time

for EEO complaints (calculated from the filing date to the date

of final agency action) in the Northern District of Georgia.

iii) the minimum, maximum, and average processing time

for EEO complaints, similarly computed, for ten other district

offices selected by random sample, and

iv) the disposition of each resolved EEO complaint in the

Northern District of Georgia during the applicable time period

(i.e., withdrawal, informal settlement, finding of no discrimination, finding of discrimination).

H. Insure that investigation (such as that provided for in 29

C.F.R. § 1613.216) of complaints or charges of discrimination

of reprisal within the meaning of 42 U.S.C. § 2000(e)-16 or 29

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C.F.R. part 1613 which ar^ pending or subsequently arise in

the Northern District of Georgia be completed within 90 days

of the date of filing (as defined in 29 C.F.R. § 1613.214), or

within 90 days of the date of this Order, whichever is later. If

compliance with such time limitation cannot be accomplished

with the exercise of due diligence, for reasons beyond the control of the Marshals Service, written documentation of the

reasons for such non-compliance shall be made by the Director

as part of the written report prescribed in Section 3G of this

Order.

4. The United States Department of Justice shall directly supervise compliance by the Marshals Service and its Director with all

apsects of this Order.

5. Nothing contained herein shall be interpreted to permit the

Marshals Service to take any action of reprisal against Deputies

Frazier, Morris, Reilly, or Love for their participation in the proceedings that led to this Order. Nor shall anything contained herein

be interpreted to prevent the Marshals Service from taking any

legal and appropriate action concerning events transpiring after

the effective date of this Order.

For the Board:

RUTH T. PROKOP,

Chairwoman.

EBSA.H. POSTON,

Vice Chair.

December 17,1979.

195
UNITED STATES OF AMERICA

BEFORE THE MERIT SYSTEMS PROTECTION BOARD

In the matter of:

ROBERT.J. FRAZIER, JR.,

CHARLES E. MORRIS,

WILLIAM C. REILLY,

TERRY E. LOVE,

AND

WILLIAM E. HALL, DIRECTOR,

U.S. MARSHALS SERVICE

CHARLES F.C. RUFF,

ACTING DEPUTY ATTORNEY GENERAL

U.S. DEPARTMENT OF JUSTICE

AND

BENJAMIN R. CIVILETTI,*

ATTORNEY GENERAL OF THE

UNITED STATES

Docket No. SC-79-3

ORDER RELATING To THE INTRODUCTION OF DOCUMENTS

On August 23, 1979, the Board, in a bench ruling, ordered the

Special Counsel to submit within five work days an affidavit

listing those exhibits not previously introduced which the Special

Counsel received from the Department of Justice and which the

Special Counsel proposed to introduce. The Board also afforded

the Department of Justice five days to respond to the Special

Counsel's affidavit.

On August 29, 1979, the Special Counsel moved the admission of

58 exhibits, identified in a supporting affidavit, which it has

obtained from the Department of Justice in the course of its

investigation. On September 10, 1979 the United States Marshals

Service filed its objections to the motion of the Special Counsel.

The Marshals Service objected to post-hearing admission of all of

the documents on the grounds that: (1) post-hearing admission of

exhibits would be prejudicial inasmuch as it would deny the

Marshals Service the right to confront and cross-examine with

respect to each document; (2) the documents are cumulative and

repetitive of the testimony presented at the hearing; and (3) posthearing admission would constitute an unwarranted and unwise

practice which could foster abuse of the administrative process.

When the Special Counsel first brought this matter before the Board, the Attorney General was honorable Griffin B. Bell and the Deputy Attorney General was

Benjamin R. Civiletti.

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The Board agrees with the objection of the Marshals Service that

post hearing admission of documents for the truth of the matters

asserted therein would be both prejudicial to the Marshals Service

and would set a dangerous precedent for future proceedings. Many

of the Special Counsel's proposed documents raise issues of fact

never addressed by the testimony of any live witness, nor ever addressed in the Special Counsel's petition for corrective action.

Therefore, with respect to those documents below that the Board

admits, admission is granted only for the limited specific purpose

of proving either that the document existed in the files of the Marshals Service or that the respondents had notice of the matters

asserted in the document, unless otherwise indicated.

Since this was the first evidentiary hearing conducted by the

Board under its corrective action authority, the Board afforded the

parties more latitude in proving their cases than it will allow in the

future. In future evidentiary hearings conducted in conjunction

with the Board's consideration of a petition for corrective action,

the Board will require the parties to identify and introduce at the

proper time all documents proposed to be admitted.

Within these limitations, the following specific rulings are made:

Exhibit No. Rulings

7 Objection sustained. The document is irrelevant to any

issue before the Board.

87 Objection overruled. The document will be considered in

its entirety.

154 Objection overruled. Document admitted to show notice.

155 Objection overruled. Document admitted to show notice.

163 Objection sustained. From the single document presented,

it is impossible to determine its relevance, materiality or

weight.

164 Objection overruled. Document admitted to show notice.

168 Objection overruled. Document admitted to show notice of

allegations raised and to show that the Deputies served

as EEO witnesses.

169 Objection sustained. The issue raised in this document

was not raised at the hearing and is irrelevant to this

case.

174 Objective overruled. Document admitted to show notice.

178 Objection overruled. Document admitted to show notice.

181 Objection overruled. Document admitted to show notice

183 Objection sustained. Robert Frazier testified in this case

but did not raise many of the matters set forth in this affidavit.

184 Objection sustained. It is impossible to tell from the face of

this document its relevance to this case. Moreover,

Christopher Reilly, the affiant, testified in this case, and

his oral testimony on the stand will govern.

189 Objection overruled. This document was discussed by a

number of witnesses and the Department of Justice had

ample opportunity to cross-examine witnesses about it.

Therefore, it is admitted generally.

197
Exhibit No, . Rulings

196 Objection sustained. The document is illegible.

199 Objection overruled. Document admitted to show notice.

202 Objection overruled. Document admitted to show notice.

203 Objection sustained. The issue raised in this document

was not previously raised before the Board. This document is irrelevant.

206 Objection sustained. This document is irrelevant.

207 Objection overruled. This document is admitted to show

notice.

209 Objection overruled. This document admitted to show

notice.

5, 6, 85, 90, 160, • ,

161, 162, 165, 167,

170, 171, 173, 175,

176, 177, 179, 182,

185, 186, 187, 188,

190, 191, 193, 194,

195, 197, 198, 200,

208,210 Objection overruled. Admitted generally.

166, 180, 192, 201,

204,205 Objection overruled. Admitted to show malice or

knowledge.

During the hearings, rulings were reserved with respect to certain

documents. With regard to these documents, the following specific

ruling are made:

Exhibit No. Ruling

9 Objection sustained. This document was not introduced or

identified by any witness at the trial,

50, 55 Objection overruled. Both documents were shown to have

been contemporaneously recorded. See Volume 1, pp.

144-145 and 149.

87 Objection overruled. Although this document appears to

be incomplete, no lack of fairness in considering these

partial notes has been shown. See, e.g., FRE 106.

Moreover, witnesses Russell, at Volume 3, pp. 71-72, and

Meade, at Volume 3, pp. 189-190, identified this document.

148 Objection sustained. This document was not introduced or

identified by any witness at the trial.

Petitioner

Exhibit 4 Objection overruled. This document was properly identified as Volume 1, page 89.

The Board also reserved ruling at Volume 4, page 40, on the admissibility of certain testimony by witness Boyd. The testimony

appears to be generally within the offer of proof at Volume 4, pp.

36-37, and generally relevant. Therefore, the testimony is admitted.

For the Board:

RUTH T. PROKOP.

ERSAH.POSTON.

December 17,1979.

198