George Duggan v. Department of Defense , 883 F.3d 842 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE DUGGAN, No. 16-73640
Petitioner,
MSPB No.
v. SF-1221-14-0544-W-2
DEPARTMENT OF DEFENSE,
Respondent. OPINION
On Petition for Review of an Order of the
Merits Systems Protection Board
Argued and Submitted December 8, 2017
San Francisco, California
Filed February 26, 2018
Before: Susan P. Graber and N. Randy Smith, Circuit
Judges, and Michael H. Simon,* District Judge.
Opinion by Judge Graber
*
The Honorable Michael H. Simon, United States District Judge for
the District of Oregon, sitting by designation.
2 DUGGAN V. DEPARTMENT OF DEFENSE
SUMMARY**
Whistleblower Protection Act
The panel denied a petition for review in an action
brought by a senior auditor at the Defense Contract Audit
Agency (“DCAA”) under the Whistleblower Protection Act
against the Department of Defense, alleging that the
Department took several adverse personnel actions against
him in retaliation for his protected disclosures at the DCAA.
The panel held that substantial evidence supported the
Merit Systems Protection Board’s ultimate determination that
the DCAA’s personnel actions were not in retaliation for
petitioner’s whistleblowing. Specifically, the panel assumed
for purposes of its analysis that petitioner established a prima
facie case that all seven of his communications were
protected disclosures. The panel adopted the Federal
Circuit’s test, outlined in Carr v. Social Security
Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999), for
determining whether the agency – the DCAA – carried its
burden of proving by clear and convincing evidence that it
would have taken the same personnel actions against
petitioner in the absence of his protected disclosures.
The panel also held that the administrative law judge
permissibly excluded disputed evidence.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
DUGGAN V. DEPARTMENT OF DEFENSE 3
COUNSEL
Mark Hostetter (argued), Law Office of Mark W. Hostetter,
San Jose, California, for Petitioner.
David R. Pehlke (argued), Trial Attorney; Allison Kidd-
Miller, Assistant Director; Robert E. Kirschman Jr., Director;
Chad A. Readler, Acting Assistant Attorney General; Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
OPINION
GRABER, Circuit Judge:
Petitioner George Duggan brought this action under the
Whistleblower Protection Act against the Department of
Defense, alleging that the Department took several adverse
personnel actions against him in retaliation for his protected
disclosures about misconduct at the Defense Contract Audit
Agency (“DCAA”). Following an unsuccessful appeal to the
Merit Systems Protection Board (“Board”), Petitioner timely
seeks review. We must set aside the Board’s decision on the
merits if it is: “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law;
(2) obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c); Coons v. Sec’y of
U.S. Dep’t of Treasury, 383 F.3d 879, 888 (9th Cir. 2004).
For the reasons that follow, we deny the petition.
4 DUGGAN V. DEPARTMENT OF DEFENSE
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner works as a Senior Auditor at the DCAA. The
events leading to the present dispute began in October 2012,
when DCAA hired Vivian Cusi as its Fremont Branch
Manager. Cusi supervised an audit team that included
Petitioner.
Cusi visited the audit team for the first time on January
22, 2013. She approached Petitioner’s cubicle to introduce
herself. According to the supervising auditor, David Downer,
who accompanied Cusi, Petitioner was “hostile” and
“disrespectful”; he shook Cusi’s hand only “reluctantly” and
“questioned her presence.” Downer further described
Petitioner as “angry” and “unfriendly” when he first met
Cusi. Downer also characterized the encounter as “quite
alarming,” in contrast to the uneventful introductions to other
members of the team.
Later that day, Cusi and Downer convened a meeting with
the audit team. Witnesses testified that Petitioner dominated
the meeting and prevented the group from addressing the
items on the agenda. In addition, Petitioner questioned Cusi’s
experience, speaking in an “aggressive,” “angry,” and
“disruptive” tone. Because of Petitioner’s behavior, the
meeting was cut short before all agenda items could be
covered.
When the minutes of the meeting were circulated by
email, Cusi replied that they were incomplete. Because Cusi
thought that Petitioner’s behavior should be recorded and
addressed separately, she did not insist that a description of
it be included in the minutes. But the minutes did record that
Cusi “stopped the meeting” because, in her view, it “was not
DUGGAN V. DEPARTMENT OF DEFENSE 5
productive and [Petitioner] was monopolizing it.” Petitioner
replied in an email that Cusi’s “reaction to the team minutes
is disappointing,” and he described the meeting as
“disastrous.”
On February 14, 2013, Cusi informed the audit team that
she, Downer, and other supervisors were focused on
providing “guidance on team norms.” She added that she was
concerned that everyone in the branch should understand “the
nuances of being candid and being respectful.” Petitioner
emailed back, copying the whole team:
Your response below is so arrogant and
beyond the pale, like telling victims they
asked for it. . . .
In fact, you were the one who was
disrespectful to us by, without provocation or
acceptable reason, calling us “unprofessional”
multiple times just because we deigned to call
you on your rote, poorly reasoned and
dangerous mgmt. concepts. . . .
Your statement “nuance of being candid”
below is just an oxymoron. . . . Accept your
mistakes and learn from them but do not try to
disguise them by blaming those who made
none.
It is just too low to blame the victims for
their victimization. So, your response below
is again disappointing and insulting, as it is
you that need “to improve” your conduct, and
6 DUGGAN V. DEPARTMENT OF DEFENSE
change the toxic environment you have
created.
Other recipients found Petitioner’s email to be rude,
disrespectful, and disparaging. Cusi was shocked and
offended.
On March 27, 2013, Petitioner received notice of a
proposed 10-day suspension for “disrespectful and/or
disruptive conduct.” The three specifications were his
behavior during the introduction to Cusi at his cubicle, his
behavior during the January 22 afternoon team meeting, and
the February 14 email. The notice also pointed out that this
was Petitioner’s third offense for inappropriate behavior. He
responded to the notice by stating, in part: “I have no
illusions of the monolithic mind-set of DCAA management
and their hatred beyond reason of me, so I expect this
retaliation will go to court.” On May 1, 2013, Petitioner was
suspended for 10 days.
On July 31, 2013, Petitioner received an annual
performance appraisal. He was rated only “minimally
successful” in the “Critical Element” of “Communication and
Organizational Support.” The appraisal recorded that
Petitioner resisted participating in meetings and challenged
the need for them, told supervisors to communicate with him
only by email and not in person, communicated in a
disrespectful way, and sent some emails that were
“particularly harsh.” He was admonished that he “must
consistently communicate in a professional and effective
manner and strive to work more harmoniously” with his
supervisors.
DUGGAN V. DEPARTMENT OF DEFENSE 7
Because Petitioner received only a “minimally
successful” rating in a “critical” area, DCAA revoked his
telework agreement. That action conformed to DCAA policy,
pursuant to which an employee’s performance must be at
least “fully successful” for the employee to be eligible for the
privilege of teleworking. Petitioner received no monetary
performance award for 2013; but no employee of DCAA did,
due to budgetary constraints.
After exhausting the whistleblower complaint procedures
with the Office of Special Counsel, Petitioner filed an
Individual Right of Action appeal on May 7, 2014. He
alleged that seven protected disclosures contributed to
DCAA’s decision to suspend him for 10 days, to rate his
performance as only minimally successful, to revoke his
telework agreement, and not to grant him a cash award in
2013. After conducting a hearing, an administrative judge
found that Petitioner had made four protected disclosures and
that they were a contributing factor to the challenged
personnel actions. But the administrative judge went on to
find that DCAA had shown by clear and convincing evidence
that it would have taken the same personnel actions even
without the protected disclosures.
Petitioner appealed to the Board, which issued a final
order affirming the administrative judge’s decision. The
Board also ruled that the administrative judge had acted
within his discretion when he denied certain discovery and
witnesses proposed by Petitioner. Petitioner timely seeks
review.
8 DUGGAN V. DEPARTMENT OF DEFENSE
DISCUSSION
We address the following two issues:1 (1) whether the
Board erred in finding that the DCAA established by clear
and convincing evidence that it would have taken the same
personnel actions had Petitioner not made protected
disclosures; and (2) whether the Board erred in ruling that the
administrative judge did not abuse his discretion in excluding
various witnesses and documents. We hold: (1) Substantial
evidence supports the Board’s ultimate determination that the
DCAA’s personnel actions were not in retaliation for
Petitioner’s whistleblowing; and (2) the administrative judge
permissibly excluded the disputed evidence.
A. Substantial Evidence
Once an employee establishes a prima facie case by
showing that a protected disclosure was a contributing factor
in the agency’s personnel action, the burden shifts to the
agency to establish by “clear and convincing evidence that it
would have taken the same personnel action in the absence of
such disclosure.” 5 U.S.C. § 1221(e)(2); Whitmore v. Dep’t
of Labor, 680 F.3d 1353, 1367 (Fed. Cir. 2012). “Clear and
convincing evidence is that measure or degree of proof that
produces in the mind of the trier of fact a firm belief as to the
allegations sought to be established.” 5 C.F.R. § 1209.4(e).
As noted, we assume, without deciding, that all seven
communications that Petitioner has identified constituted
protected disclosures. We also assume that all the disclosures
were a factor in the DCAA’s personnel actions, as the
1
We assume, without deciding, that all seven disclosures that
Petitioner made were protected.
DUGGAN V. DEPARTMENT OF DEFENSE 9
administrative judge and the Board found with respect to four
of the disclosures. Thus, we assume for purposes of our
analysis that Petitioner established a prima facie case.
The pivotal question for decision, then, is whether
substantial evidence supports the Board’s finding that the
DCAA proved by clear and convincing evidence that it would
have taken the same personnel actions against Petitioner in
the absence of his protected disclosures. See Kewley v. Dep’t
of Health & Human Servs., 153 F.3d 1357, 1359 (Fed. Cir.
1998) (reviewing such a finding for substantial evidence).
Substantial evidence in this context is “such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.” McEntee v. Merit Sys. Prot. Bd., 404 F.3d 1320,
1325 (Fed. Cir. 2005) (quoting Consol. Edison Co. of N.Y. v.
NLRB, 305 U.S. 197, 229 (1938)).
We adopt the Federal Circuit’s test for determining
whether, in a given case, an agency has carried its burden. In
Carr v. Social Security Administration, 185 F.3d 1318, 1323
(Fed. Cir. 1999), the court listed three factors to consider:
(1) “the strength of the agency’s evidence in support of” the
action taken; (2) “the existence and strength of any motive to
retaliate on the part of” the decision-makers; and (3) “any
evidence that the agency takes similar actions against”
similarly situated employees who are not whistleblowers.
With respect to the proposed 10-day suspension and the
resulting performance rating of only “minimally successful”
in the area of communication,2 we also adopt the Federal
2
The restriction of teleworking privileges followed automatically, by
policy, from the “minimally successful” rating in the annual performance
appraisal. And the absence of a 2013 bonus for all employees resulted
10 DUGGAN V. DEPARTMENT OF DEFENSE
Circuit’s holdings to the effect that an employee may be
disciplined for the way in which he or she communicates a
protected disclosure. That is, an employer is entitled to
demand basic civility even in this context. As the Federal
Circuit has explained, 5 U.S.C. § 1221(e)(2) does not require
“that the adverse personnel action be based on facts
completely separate and distinct from protected
whistleblowing disclosures.” Watson v. Dep’t of Justice,
64 F.3d 1524, 1528 (Fed. Cir. 1995) (internal quotation marks
omitted). Accordingly, “wrongful or disruptive conduct is
not shielded by the presence of a protected disclosure.”
Greenspan v. Dep’t of Veterans Affairs, 464 F.3d 1297, 1305
(Fed. Cir. 2006) (emphasis added). To be sure, an employer
may not punish an employee merely for being blunt or critical
of management when making a protected disclosure. Id. at
1305–06. For that reason, the court in Greenspan ruled in
favor of the employee. Id. at 1299. But the court there
declined to consider whether the employee’s behavior went
beyond blunt to become “disruptive” or “disrespectful,”
because the agency had not relied on such behavior as a
ground for the discipline imposed. Id. at 1304–05. Finally,
we note that the Federal Circuit definitively put to rest
Petitioner’s argument here, that the manner in which an
employee communicates a protected disclosure cannot be
disciplined. In Kalil v. Department of Agriculture, 479 F.3d
821, 825 (Fed. Cir. 2007), the court emphasized that
Greenspan does not mean that “once a disclosure qualifies as
protected, the character or nature of that disclosure can never
supply support for any disciplinary action.”
from budgetary considerations. As to those actions, we readily conclude
that the agency has met its burden.
DUGGAN V. DEPARTMENT OF DEFENSE 11
We next apply the Carr standards against that backdrop.
Considering the record as a whole,3 the evidence in support
of the personnel actions is strong. Nearly all witnesses other
than Petitioner characterized his behavior at the January 22
meeting as disruptive and disrespectful; indeed, the team
could not complete its discussion of the intended topics
because of his conduct. And the Board permissibly
concluded that the February 14 email conveyed a nasty and
condescending tone that went well beyond mere bluntness or
a critique of management practices. Accordingly, the first
Carr factor supports the Board’s decision.
The second Carr factor pertains to motive. In this regard,
we emphasize that the only question is whether Petitioner’s
whistleblowing motivated the challenged personnel actions,
regardless of whether his critiques were valid. We therefore
assume, without deciding, that the substance of his criticisms
was correct. It is highly significant that Petitioner had been
admonished previously for his inappropriate behavior, twice,
before he made any of the protected disclosures. As the
suspension memorandum pointed out: “Considering it is a
3rd offense, this proposed penalty [a 10-day suspension] is
lenient” when viewed in the light of the written disciplinary
policies of the agency. The previous discipline and
counseling also pertained to Petitioner’s behavior when
communicating with others at DCAA; the suspension
memorandum noted that “previous supervisors/managers
have addressed appropriate soft skills.” Petitioner was urged
“to express [his] viewpoints in a respectful manner.” Again,
viewing the record as a whole, substantial evidence supports
3
We are unpersuaded by Petitioner’s argument that the Board failed
to consider all the evidence.
12 DUGGAN V. DEPARTMENT OF DEFENSE
the Board’s finding that the personnel actions were not
retaliatory.
The third Carr factor plays no role in our analysis.
DCAA’s human resources department found no other
employees with three similar offenses. And the suspension
memorandum accurately recorded that Petitioner received a
more lenient penalty than the agency’s progressive-discipline
guidelines provide. (In fact, one non-whistleblowing
employee received a 12-day suspension for his first offense,
though the offenses were not similar to Petitioner’s.)
Considering all the Carr factors and the record as a
whole, we conclude that substantial evidence supports the
Board’s determination that the agency proved, by clear and
convincing evidence, that it would have taken the same
disciplinary action against Petitioner in the absence of his
whistleblowing activities.
B. Excluded Evidence
Petitioner asserts that the administrative judge abused his
discretion by excluding four agency employees as witnesses
and excluding, as well, documents and emails in their
possession that related to Petitioner. He further claims that
the administrative judge erred by excluding, during the
examination of one witness who did testify, documents
related to Petitioner. We review those decisions for abuse of
discretion. Curtin v. Office of Pers. Mgmt., 846 F.2d 1373,
1378 (Fed. Cir. 1988).
The administrative judge granted a motion to compel
discovery of all documents concerning Petitioner to and from
the responsible management officials during the relevant
DUGGAN V. DEPARTMENT OF DEFENSE 13
period. To the extent that the discovery order did not cover
every document now in dispute, the reason is that the
witnesses whose documents were sought were not the
responsible management witnesses. And none of the
excluded witnesses was a decision-maker with respect to the
challenged personnel actions; none influenced the
disciplinary actions.
Finally, Petitioner challenges the administrative judge’s
ruling that denied discovery requests relating to similarly
situated non-whistleblowing employees. But granting those
discovery requests would have resulted in a fruitless search
for similarly situated employees; the uncontradicted evidence
showed that there were no other employees who were
disciplined for the third time for disrespectful or
insubordinate conduct.
Accordingly, the administrative judge did not abuse his
discretion.
Petition DENIED.