Craine v. National Science Foundation ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 26, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
JOSEPH MITCHELL CRAINE,
Petitioner,
v. No. 16-9536
(National No. I14040010)
NATIONAL SCIENCE FOUNDATION, (National Science Foundation)
Respondent,
and
KANSAS STATE UNIVERSITY,
Intervenor - Respondent.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, McHUGH, and MORITZ, Circuit Judges.
_________________________________
Dr. Joseph Mitchell Craine petitions for review of a decision issued by the
National Science Foundation (NSF) under the National Defense Authorization Act’s
Pilot Program for Enhancement of Contractor Protection from Reprisal for Disclosure
of Certain Information (“Pilot Program”), 41 U.S.C. § 4712. The Pilot Program
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
protects employees of government contractors and grantees from reprisal for making
certain types of disclosures. NSF determined the disclosures made by Dr. Craine, a
former employee of Kansas State University (KSU), did not fall within the Pilot
Program’s whistleblower protections. Proceeding pro se, Dr. Craine now challenges
NSF’s decision. We have jurisdiction under 41 U.S.C. § 4712(c)(5) and deny the
petition for review.
I
The Pilot Program prohibits government contractors and grantees from
subjecting their employees to reprisal for disclosing gross mismanagement, waste,
and other harms or wrongdoing relating to federal contracts or grants. The statute
provides:
An employee of a contractor, subcontractor, grantee, or subgrantee or
personal services contractor may not be discharged, demoted, or
otherwise discriminated against as a reprisal for disclosing to a person
or body described in paragraph (2) information that the employee
reasonably believes is evidence of gross mismanagement of a Federal
contract or grant, a gross waste of Federal funds, an abuse of authority
relating to a Federal contract or grant, a substantial and specific danger
to public health or safety, or a violation of law, rule, or regulation
related to a Federal contract (including the competition for or
negotiation of a contract) or grant.
41 U.S.C. § 4712(a)(1). The persons or bodies to whom a protected disclosure must
be made are:
(A) A Member of Congress or a representative of a committee of
Congress.
(B) An Inspector General.
(C) The Government Accountability Office.
2
(D) A Federal employee responsible for contract or grant oversight or
management at the relevant agency.
(E) An authorized official of the Department of Justice or other law
enforcement agency.
(F) A court or grand jury.
(G) A management official or other employee of the contractor,
subcontractor, or grantee who has the responsibility to investigate,
discover, or address misconduct.
Id. § 4712(a)(2).
Upon receipt of a complaint by a person who believes he has been subjected to
a prohibited reprisal, the Inspector General of the executive agency involved “shall
investigate the complaint and, upon completion of such investigation, submit a report
of the findings of the investigation to the person, the contractor or grantee concerned,
and the head of the agency.” Id. § 4712(b)(1). Within thirty days of receiving the
Inspector General’s report, the agency head must “determine whether there is
sufficient basis to conclude that the contractor or grantee . . . has subjected the
complainant to a reprisal prohibited by subsection (a) and shall either issue an order
denying relief” or remedy the reprisal. Id. § 4712(c)(1). The controlling burdens of
proof are set forth at 5 U.S.C. § 1221(e). 41 U.S.C. § 4712(c)(6). These burdens
require an employee to show that a protected disclosure contributed to the adverse
personnel action. 5 U.S.C. § 1221(e)(1). Even if the employee meets that burden,
the employer need not take any corrective action if it presents “clear and convincing
evidence that it would have taken the same personnel action in the absence of such
disclosure.” Id. § 1221(e)(2).
3
II
Dr. Craine was a Research Assistant Professor in KSU’s Division of Biology.
In 2012, he attended a graduate student’s presentation on the growth of plant species
at a Long-Term Ecological Research (LTER) site, known as the Konza Prairie. The
site is funded by grants from NSF. The student’s preliminary analysis found that one
type of plant species experienced an abrupt, non-linear growth jump in one year. At
the end of the presentation, Dr. Craine questioned whether the growth jump might be
explained by “observer bias,” or a change in the researchers at the LTER site, R. at
754. The student, Zak Ratajczak, apparently denied that his findings were skewed by
observer bias, but he incorrectly assumed that just one researcher had monitored the
plant growth throughout the research period. After the presentation, Dr. Craine
confronted the student’s supervisor, Dr. Jesse Nippert, who refused to talk with
Dr. Craine because he believed Dr. Craine was denigrating his student. Eventually,
Mr. Ratajczak, Dr. Nippert, and another colleague submitted a manuscript of their
findings to an academic journal, Ecology, for publication.
On October 19, 2013, while the manuscript was under prepublication review,
Dr. Craine sent an e-mail to Ecology’s editor in chief, Dr. Donald Strong, accusing
the paper’s authors of fraud:
Hi Don,
If you are considering a paper by Ratajczak et al. regarding woody
species at Konza, you might want to reconsider it.
It pains me to say this, but I think the paper is fraudulent.
4
I think you can understand that it would be better for me to address this
discretely [sic] during the review process. I would prefer not to force a
retraction publicly.
If this paper is not currently within Ecology, I apologize. If I can
provide more information, please let me know.
--Joe
Id. at 807.
In response, another editor at Ecology, Dr. Debra Peters, asked Dr. Craine to
review the manuscript. The same day, Dr. Craine wrote back:
Recommendation: Reject (not worthy of publication)
....
The authors write[,] “Since 1996, the data collection has been
performed by one individual with extensive knowledge of the local flora
(e.g. Towne 2002, Craine et al. 2012), ensuring that changes in shrub
cover were not related to change in observer . . . [.]”
This is false.
....
If you correct for observer bias, there is little if any abrupt transition in
woody species cover. No abrupt transition, . . . [j]ust a smooth, steady
increase in woody cover.
I used the word “fraudulent” in my initial email—and take my word for
it, I don’t like to—because this paper at the very least represents
deliberate ignorance. . . . [S]ince being alerted, there has been no effort
by the authors to correct for this.
Id. at 812-13.
Dr. Peters responded that she was “not concerned about observers changing
through time.” Id. at 834. Nevertheless, after learning of Dr. Craine’s allegations,
5
Dr. Nippert and Mr. Ratajczak reanalyzed their data but found no impact on their
conclusions. Thus, they corrected their appendices to accurately reflect the number
of observers and on February 19, 2014, resubmitted their manuscript to Ecology.
On February 28, Dr. Craine again e-mailed Dr. Strong at Ecology, stating, “I’d
like to see the appendices in order to know whether the authors are still making false
statements.” Id. at 836. He suggested that the authors had lied in their manuscript,
that others in the program had committed misconduct, and that he might reach out to
NSF’s Office of Inspector General (OIG):
[T]he issue is rooted deep enough in the LTER (observer data has been
taken off-line, the [Principal Investigator] of the LTER accused one of
their staff (not me) of providing the anonymous review on the paper and
then threatening them against ever doing so) that I may need to involve
NSF OIG.
Id. In reply, Dr. Strong wrote, “Joe: Ask the authors. Regards, Don.” Id.
News of Dr. Craine’s allegations soon reached Dr. John Blair, the Principal
Investigator at the LTER site, whom Dr. Craine had accused of misconduct in his
earlier e-mail. On March 27, not knowing that Dr. Craine had threatened to involve
OIG, id. at 821, Dr. Blair e-mailed Dr. Craine to request a meeting to discuss his
accusations as well as KSU’s policy on making allegations of academic misconduct.
Dr. Blair wrote:
[Y]ou have now raised serious allegations of scientific misconduct
involving . . . LTER scientists and LTER data (re[:] knowingly
misrepresenting or misinterpreting LTER data in peer-reviewed
publications). This was apparently done without actually discussing
your concerns with the scientists involved. Further, it appears that you
implied in correspondence with the [editors at Ecology] that I tried to
“cover-up” this alleged misconduct by threatening an LTER staff
6
member and by removing LTER data from our on-line database. Those
allegations are patently false. Accusing a scientist of this kind of
misconduct is serious business, and will not be taken lightly. I quote
from the University Handbook, Appendix O: Policy on Integrity in
Research and Scholarly Activity[:] “It should be emphasized that
reporting misconduct in scholarly work is a responsibility shared by
everyone at the University. However, frivolous, mischievous, or
malicious misrepresentation in alleging misconduct cannot be tolerated.
Misconduct in scholarly work may take many forms, but it does not
include honest error or honest differences in interpretations or
judgments of data.”
Id. at 838. In preparing for this meeting, Dr. Blair discovered on March 31, 2014 that
Dr. Craine threatened to involve OIG. Id. at 822.
On April 7, 2014, Dr. Blair and several KSU officials met with Dr. Craine.
Dr. Craine failed to justify his accusations. But later that day, Dr. Craine e-mailed
OIG. According to the OIG intake memo, Dr. Craine claimed he was being subjected
to reprisal “for alerting an editor of a journal that a manuscript he reviewed contained
a false statement.” Id. at 2. As he had done before, Dr. Craine specifically identified
this erroneous statement in the manuscript regarding the number of observers:
“Since 1996, the data collection has been performed by one individual with extensive
knowledge of the local flora (e.g. Towne 2002, Craine et al. 2012), ensuring that
changes in shrub cover were not related to change in observer . . . [.]” Id. at 3
(internal quotation marks omitted). He also claimed he was facing reprisal for
supposedly breaching KSU’s “policy and procedure in reporting the alleged false
statement to university officials first.” Id. at 2.
On April 14, 2014, the director of KSU’s biology division, Dr. Brian Spooner,
notified Dr. Craine that he was initiating an action against him under the University
7
Handbook, Appendix O. He based this action on Dr. Craine’s having made
unsubstantiated allegations of fraud and misconduct without first presenting his
concerns to the persons involved or university officials as required by Appendix O.
Dr. Spooner advised that the action would encompass whether the manuscript authors
had indeed committed academic misconduct and whether Dr. Craine engaged in
frivolous, mischievous, or malicious conduct by alleging fraud and misconduct.
A KSU Inquiry Team composed of university professors investigated and
found no academic misconduct by the manuscript’s authors. In addition, the Inquiry
Team determined that Dr. Craine had maliciously misrepresented that the manuscript
was fraudulent and frivolously misrepresented that Dr. Blair had engaged in
misconduct. For this, the Inquiry Team recommended that Dr. Craine be terminated
from employment. On September 8, 2014, KSU’s Provost, Dr. April Mason, met
with Dr. Craine to afford him “a full opportunity to dispute the Inquiry Team’s
findings and conclusions.” R. at 897. She allowed him to present his side of the
matter but later concurred with the Inquiry Team’s conclusion. She terminated
Dr. Craine’s employment effective October 24, 2014. Dr. Craine contested his firing
before a KSU Grievance Panel composed of different professors, but after two days
of open hearings, the panel unanimously upheld Provost Mason’s decision.
Meanwhile, OIG also investigated. During an interview with an OIG lawyer,
Dr. Craine acknowledged that he had not reported a violation of a rule, regulation, or
condition tied to NSF’s funding of the LTER site. Instead, Dr. Craine said, he had
complained about a false statement of “a scientific issue.” Id. at 175. The OIG
8
report did not conclude whether Dr. Craine was subjected to a prohibited reprisal.
But the report did note that his termination centered on his violation of Appendix O,
for failure to “report his concerns to his department head, dean, or provost prior to
going to the Journal.” Id. at 50. Further, the report concluded that Dr. Craine had
presented “no direct evidence that the Inquiry Team or Provost acted with a
retaliatory motive.” Id. at 52.
Later NSF issued a summary ruling concluding that Dr. Craine’s e-mails to the
Ecology editor were not protected disclosures under the Pilot Program, and even if
they had been, NSF found insufficient evidence that Dr. Craine had been subjected to
a prohibited reprisal. Dr. Craine appealed, and we remanded to NSF because its
summary ruling was inadequate to permit judicial review. See Craine v. Nat’l Sci.
Found., 647 F. App’x 871, 872 (10th Cir. 2016) (unpublished). NSF issued a
detailed amended decision denying relief, and Dr. Craine now seeks review.
III
We review NSF’s decision under the standards set out in the Administrative
Procedure Act (APA), 5 U.S.C. § 701-06. See 41 U.S.C. § 4712(c)(5). “Under the
APA, a ‘reviewing court shall hold unlawful and set aside agency action found to be
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.’” Copar Pumice Co. v. Tidwell, 603 F.3d 780, 793 (10th Cir. 2010) (quoting
5 U.S.C. § 706(2)(A) (ellipses omitted). “This standard requires us to determine
whether the agency considered the relevant data and rationally explained its
9
decision.” WildEarth Guardians v. EPA, 770 F.3d 919, 927 (10th Cir. 2014). We
will not disturb the agency’s action unless it
relied on factors which Congress has not intended it to consider, entirely
failed to consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed to a difference
in view or the product of agency expertise.
Id. (quotation omitted). In conducting our review, “we accord agency action a
presumption of validity [and put the burden] on the petitioner to demonstrate that the
action is arbitrary and capricious.” Copar Pumice, 603 F.3d at 793.
NSF gave four reasons why Dr. Craine’s allegations of fraud and misconduct
sent to the Ecology editor did not fall within the Pilot Program’s protection: (1) the
editor is not an enumerated person or body under the statute; (2) Dr. Craine’s
allegations did not qualify as protected disclosures; (3) Dr. Craine did not reasonably
believe his allegations related to the subject matter of the statute; and (4) Dr. Craine
was not subjected to a prohibited reprisal. We next examine Dr. Craine’s challenges
to these rulings.1
1. Enumerated Persons or Bodies
Dr. Craine contends that KSU subjected him to reprisal for his e-mails to the
editor of Ecology, Dr. Strong, on October 19, 2013 and February 28, 2014. NSF
ruled that these communications were not protected because “[e]ditors of academic
journals are simply not qualifying persons under the statute.” R. at 966. We agree.
1
We construe Dr. Craine’s pleadings liberally but do not act as his attorney.
See Merryfield v. Jordan, 584 F.3d 923, 924 n.1 (10th Cir. 2009).
10
The statute lists seven qualifying categories of persons or bodies, none of
which include editors of periodicals. See 41 U.S.C. § 4712(a)(2). “[W]hen the
statute’s language is plain, the sole function of the courts—at least where the
disposition required by the text is not absurd—is to enforce it according to its terms.”
United States v. Collins, 2017 WL 1304283, at *5 (10th Cir. Feb. 14, 2017) (internal
quotation marks omitted). Although Dr. Craine did eventually involve OIG, a body
listed under the statute, he claimed he was facing reprisal—not for contacting them—
but for contacting the editor at Ecology. This failed to qualify him for relief.
Dr. Craine argues that the editor should be considered a “management official”
of KSU under § 4712(a)(2)(G) because Ecology reviewed the manuscript and
effectively acted as a contractor for KSU.2 He posits that Ecology’s parent
corporation receives money from KSU, a portion of which is used to pay its editors’
salaries. But Dr. Craine acknowledges that Ecology’s parent corporation (not KSU)
pays its editors. Because Dr. Craine has failed to show that the Ecology editor is a
qualifying person under the statute, NSF’s conclusion was not arbitrary or capricious.
2. Protected Disclosures
NSF also concluded that Dr. Craine’s allegations were not protected
disclosures because they did not pertain to the subject matter of the Pilot Program.
Again, we agree.
2
Dr. Craine does not identify any specific KSU “management official or other
employee . . . who has the responsibility to investigate, discover, or address
misconduct.” 41 U.S.C. § 4712(a)(2)(G).
11
The statute requires the disclosure of “gross mismanagement of a Federal
contract or grant, a gross waste of Federal funds, an abuse of authority relating to a
Federal contract or grant, a substantial and specific danger to public health or safety,
or a violation of law, rule, or regulation related to a Federal contract . . . or grant.”
41 U.S.C. § 4712(a)(1). NSF correctly concluded that Dr. Craine’s communications
did not fall within the statute. Dr. Craine pointed to the error in the manuscript that a
single observer had monitored the LTER site. Dr. Craine questioned Mr. Ratajczak’s
findings at the initial presentation based on this error; he told Dr. Strong that the
manuscript was fraudulent on this basis; he recommended to Dr. Peters that the
manuscript be rejected on this basis; he suggested to Dr. Strong in his second e-mail
that the authors had made false statements on this point; and he told OIG that he was
facing reprisal for reporting this error. Yet reporting a research error is not a
statutory basis for protection under the Pilot Program.
On appeal, Dr. Craine offers a new theory: He says that by reporting the
academic error, he was, in effect, disclosing a violation of 45 C.F.R. § 689, which
addresses misconduct in NSF-funded research. We need not consider this argument,
however, because Dr. Craine did not cite this regulation before the agency, nor did he
contend that he was reporting a regulatory violation related to an NSF grant. In fact,
he affirmatively disavowed that theory to the OIG investigator, stating that “the terms
of grants and conditions of grants was not something I was thinking about.” R. at
175. Under these circumstances, we will not consider an argument Dr. Craine failed
to make before the agency. See Ariz. Pub. Serv. Co. v. EPA, 562 F.3d 1116, 1127
12
(10th Cir. 2009) (refusing to consider argument that petitioner failed to raise before
the agency).
3. Reasonable Belief
Next, NSF determined that Dr. Craine did not reasonably believe that his
e-mails to Dr. Strong were protected under the Pilot Program. We conclude that this
was neither arbitrary nor capricious.
The Pilot Program requires that employees “reasonably believe[]” that they are
disclosing information evincing gross mismanagement, waste, or other harms relating
to federal contracts or grants. See 41 U.S.C. § 4712(a)(1). When considering the
term “reasonable belief” in a separate federal whistleblower statute, we have
explained that the term includes “both a subjective and an objective component,”
which means “an employee must actually believe in the unlawfulness of the
employer’s actions and that belief must be objectively reasonable.” Lockheed Martin
Corp. v. Admin. Review Bd., U.S. Dep’t of Labor, 717 F.3d 1121, 1132 (10th Cir.
2013) (examining whistleblower provision of the Sarbanes-Oxley Act, 18 U.S.C.
§ 1514A(a)(1)). “Objective reasonableness is evaluated based on the knowledge
available to a reasonable person in the same factual circumstances with the same
training and experience as the aggrieved employee.” Id. (internal quotation marks
omitted).
NSF focused on the objective prong, asking whether “a disinterested observer
with knowledge of the facts readily ascertainable by the employee could reasonably
conclude that there has been misconduct.” R. at 967 (internal quotation marks
13
omitted). NSF ruled that Dr. Craine could easily have learned that the manuscript’s
authors had corrected the error, had reanalyzed their data, and had found no impact
on their conclusions. It further ruled that Dr. Craine could have learned that Dr. Blair
had not removed any data from KSU’s on-line database and that the raw data
regarding the number of observers at the LTER site was still available. Dr. Craine
asserts these facts are untrue, but substantial evidence in the record supports these
findings. See, e.g., id. at 757-58 (Nippert Decl.); id. at 820-21 (Blair Decl.).3
3
Dr. Nippert signed a declaration acknowledging that Mr. Ratajczak had
incorrectly assumed that just one person acted as an observer for the specific dataset
used in their research. R. at 754-55. But Dr. Nippert explained their assumption was
based on previous comments by Dr. Craine, who apparently used the same dataset in
his own manuscript without regard for observer bias. Dr. Nippert stated he and
Mr. Ratajczak “reanalyzed all of the data[, and] found multiple lines of evidence that
supported the [manuscript’s] conclusions, such that observer bias was not (and never
was), an issue.” Id. at 757-58. Accordingly, they removed an incorrect statement
from their manuscript’s appendices, which had not been in the manuscript itself. Id.
at 758.
Dr. Blair also signed a declaration in which he agreed that observer bias did
not impact the manuscript’s findings. Additionally, he explained why Dr. Craine
could not find the on-line information he was seeking:
If Dr. Craine had contacted me or . . . the former Konza LTER
information manager . . ., we could have explained to him that changes
in the Konza LTER database were made due to the LTER Network’s
new standards for data management and NSF’s expectations regarding
standardization of data across all LTER sites.
The database changes involved moving from flat ascii text files, which
had been used since the early 1980s, to a relational database format
using SQL Server software. This transition began in 2004 . . . and has
continued through the present. In the SQL Server data, there is no field
for observer ID in the PVC021 dataset. And because [a researcher] later
made minor changes to the data gathered by other observers, [the
14
4. Reprisal
Finally, NSF concluded that KSU had not subjected Dr. Craine to a prohibited
reprisal. Applying the burden-shifting framework from 5 U.S.C. § 1221(e), NSF
concluded that Dr. Craine had failed to show that a protected disclosure contributed
to his termination, and that even if it had contributed, KSU presented clear and
convincing evidence that it would have fired him anyway. This conclusion was
neither arbitrary nor capricious.
NSF provided a rational explanation for its conclusion that a protected
disclosure did not contribute to Dr. Craine’s termination. NSF observed that KSU
fired him because he violated Appendix O of the University Handbook by making
malicious and frivolous allegations of fraud to the editor of Ecology without first
consulting University officials. See R. at 968. Dr. Blair invoked Appendix O in his
e-mail to Dr. Craine on March 27, 2014, before he or any other KSU faculty member
knew that Dr. Craine had threatened to contact OIG. See id. Dr. Blair first learned of
Dr. Craine’s reference to OIG on March 31, 2014. See id.; see also id. at 691, 822.
information manager] determined that it would be inappropriate to
associate the original observer IDs with modified data.
[The] LTER’s online data files are consistent with how other LTER
sites maintain their online data files for similar datasets.
If any investigator (including Dr. Craine) were to request archival data,
Konza LTER can and will provide access to all of the raw data,
including copies of the original archived field data sheets, the original
ascii text files with uncorrected data and notes detailing any subsequent
modifications, and modified files with . . . corrections.
Id. at 820-21.
15
And Dr. Craine did not actually involve OIG until after meeting Dr. Blair on April 7,
by which time it was apparent that he was facing discipline—not for making a
protected disclosure, but for violating Appendix O. As the agency concluded, a
protected disclosure was not a contributing factor to his termination from
employment.
Further, even if Dr. Craine had made a protected disclosure, NSF explained
that KSU presented clear and convincing evidence that he would have been fired
anyway for violating Appendix O. Id. at 968. As NSF explained, the KSU Inquiry
Team concluded that Dr. Craine had provided no evidence to support his accusations,
had made no attempt to uncover such evidence, and in fact, had used the same data he
alleged to be fraudulent in his own earlier publication. NSF noted that the Inquiry
Team concluded Dr. Craine had violated Appendix O by failing “to exercise
reasonable caution” before making external allegations of fraud to a prestigious
academic journal without first conferring with the authors of the manuscript. Id. at
356. Based on these and other findings, the Inquiry Team recommended that he be
fired. Provost Mason concurred and terminated him, saying afterwards that she never
heard of OIG until she met with Dr. Craine and that his “reference to OIG was
inconsequential.” Id. at 897. She stated that she would have fired him for his
“egregious” conduct, even if he had made a protected disclosure. Id. at 898.
Moreover, NSF recognized that the Grievance Panel voted unanimously to uphold his
termination, with full knowledge of Provost Mason’s statements and Dr. Craine’s
earlier threat to involve OIG. This is clear and convincing evidence that Dr. Craine
16
would have been fired for violating Appendix O, regardless of whether he made a
protected disclosure. Given such evidence, NSF’s conclusion was not arbitrary or
capricious.4
5. Dr. Craine’s Arguments
Notwithstanding the foregoing analysis, Dr. Craine advances three additional
arguments. First, he says the Pilot Program required NSF to notify him of his rights
under the statute, and that NSF’s failure to do so rendered its decision arbitrary and
capricious. But whether or not he had notice of his statutory rights is entirely
irrelevant to whether NSF’s decision is arbitrary or capricious. Dr. Craine contends
the failure to provide such notice can interfere with an employee’s rights under other
federal statutes, in particular the Family Medical Leave Act (FMLA), 29 U.S.C.
§§ 2601-54, and the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-19. See
29 C.F.R. § 825.300(e) (addressing consequences for failing to give requisite notice
under FMLA); 29 U.S.C. § 203(m) (conditioning wage determination for tipped
4
Dr. Craine contends NSF should have considered three factors in assessing
whether KSU would have taken the same action if he made a protected disclosure:
the strength of the employer’s evidence supporting its action, whether the employer
had a retaliatory motive, and whether there was evidence of similar adverse action
against non-whistleblowers. See Pet’r Br. at 44-53. Dr. Craine offers no authority
for applying these factors, but the Merit Systems Protection Board weighs these
factors when assessing reprisal under 5 U.S.C. § 1221(e). See Alarid v. Dep’t of
Army, 122 M.S.P.R. 600, 609 (M.S.P.B. 2015). Assuming it was appropriate for NSF
to weigh these factors, the agency detailed the evidence and expressly ruled that
Dr. Craine’s “firing had nothing to do with OIG, and everything to do with [his]
having impugned the reputation of [his] colleagues to the editors of an academic
journal.” R. at 968. NSF did not discuss evidence of similar adverse action against
non-whistleblowers because there was none. We perceive no error.
17
employees in part on providing requisite notice under FLSA). But Dr. Craine cites
no analogous authority under the Pilot Program. And in any event, he was not
prejudiced by any lack of notice because he understood as early as February 28,
2014, that he could involve OIG. That was the date he sent a second e-mail to
Dr. Strong indicating he might need to reach out to OIG. Thus, whether or not NSF
provided notice, Dr. Craine knew he could involve OIG, and yet he elected to contact
the editor instead.5
Dr. Craine’s second argument raises a due-process challenge to the agency’s
decision-making process, which challenge is reviewable under the APA. See Robbins
v. U.S. Bureau of Land Mgmt., 438 F.3d 1074, 1085 (10th Cir. 2006). Dr. Craine
focuses on some 200 pages of evidence that KSU compiled during and after his
termination proceedings. This evidence includes letters that KSU sent to Dr. Craine
notifying him of the status of proceedings and the conclusions of the Inquiry Team,
Provost Mason, and the grievance panel; e-mails between Dr. Craine, KSU faculty,
and the editors at Ecology; sworn declarations by Dr. Nippert, Dr. Blair, and Provost
Mason; the academic manuscript coauthored by Dr. Craine and Dr. Nippert;
Appendix O of KSU’s handbook; and transcripts of OIG interviews. KSU attached
this evidence to a twenty-six page letter that KSU sent to NSF to give the agency its
5
In his reply brief, Dr. Craine insists he was prejudiced because he would have
directly contacted OIG rather than the editor if he had known of his rights and
remedies under the Pilot Program. He says he did not know about the statute until
after he contacted OIG. His second e-mail to the editor refutes this argument,
however, as does the OIG intake memo, which clearly indicates that Dr. Craine was
alleging retaliation and “requesting federal whistleblower protection,” R. at 2.
18
side of the case. Except for the declarations, it appears this evidence was already
part of the record compiled by OIG. Dr. Craine contends NSF violated his due
process rights by admitting this evidence during the administrative decision-making
process.
Once again, however, Dr. Craine cannot show prejudice. See 5 U.S.C. § 706(“[T]he court shall review the whole record or those parts of it cited by a party, and
due account shall be taken of the rule of prejudicial error.”); St. Anthony Hosp. v.
U.S. Dep’t of Health & Human Servs., 309 F.3d 680, 698-99 (10th Cir. 2002)
(rejecting due process challenge to administrative proceeding absent showing of
prejudice); see also St. Anthony Hosp., 309 F.3d at 698 (“The duty of establishing
prejudice rests upon [the party seeking to set aside the agency’s decision].”). None
of the contested findings in NSF’s decision, all of which we have considered and
found immaterial to his rights under the statute, establish that the editor of Ecology is
a statutorily enumerated person or body, that Dr. Craine’s allegations qualify as
protected disclosures, that Dr. Craine reasonably believed his emails were protected,
and that he was subjected to a prohibited reprisal.
Finally, Dr. Craine asserts NSF should have independently assessed whether
his termination violated his First Amendment rights. But resolving this argument is
not within the purview of the agency’s statutory authority under § 4712(c)(1), and in
any event, he failed to raise this argument before NSF, see Ariz. Pub. Serv. Co.,
562 F.3d at 1127.
IV
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The petition for review is denied.
Entered for the Court
Gregory A. Phillips
Circuit Judge
20