Enrico Lucchetti v. Usdoi ( 2018 )

FILED
NOT FOR PUBLICATION
NOV 05 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ENRICO F. LUCCHETTI, No. 17-71081
Petitioner, MSPB No.
SF-1221-16-0091-W-3
v.
U.S. DEPARTMENT OF THE MEMORANDUM*
INTERIOR,
Respondent.
On Petition for Review of an Order of the
Merits Systems Protection Board
Submitted October 11, 2018**
San Francisco, California
Before: McKEOWN, W. FLETCHER, and BYBEE, Circuit Judges.
Enrico Lucchetti challenges the decision of the Merit Systems Protection
Board (“Board”) denying his request for corrective action under the Whistleblower
Protection Act (“WPA”), 5 U.S.C. § 2302(b)(8). Lucchetti claims he was
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
dismissed during his probationary period as a maintenance worker because of his
disclosures about unsafe entries into confined spaces, in violation of 29 C.F.R.
§ 1910.146. The Department of the Interior (“DOI”) responds that Lucchetti was
instead terminated because of unprofessional conduct and unauthorized use of
government buildings.
The Board ruled that Lucchetti made out a prima facie case of whistleblower
retaliation, but that DOI carried its burden of establishing “by clear and convincing
evidence that it would have taken the same [adverse] personnel action” against
Lucchetti absent his protected disclosures. 5 U.S.C. § 1221(e)(2); see Miller v.
Dep’t of Justice, 842 F.3d 1252, 1257 (Fed. Cir. 2016). We have jurisdiction to
review the Board’s decision under 5 U.S.C. § 7703(b)(1)(B) and we affirm.
We must set aside a decision of the Board 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); Duggan v. Dep’t of
Defense, 883 F.3d 842, 843 (9th Cir. 2018). It is not this court’s “function” to
“retry[] factual issues decided . . . by the Board.” See Briley v. Nat’l Archives &
Records Admin., 236 F.3d 1373, 1377 (Fed. Cir. 2001).
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When examining whether an agency has carried its burden of proving
independent causation, we begin with the Carr factors. See Duggan, 883 F.3d at
846. The three nonexclusive Carr factors are: “[1] the strength of the agency’s
evidence in support of its personnel action; [2] the existence and strength of any
motive to retaliate on the part of the agency officials who were involved in the
decision; and [3] any evidence that the agency takes similar actions against
employees who are not whistleblowers but who are otherwise similarly situated.”
Carr v. Social Sec. Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999).
On the first Carr factor, the Board’s conclusion that DOI presented “strong”
evidence in support of the decision to terminate Lucchetti is supported by
substantial evidence. The Board correctly noted that Lucchetti did not deny the
“essential facts” of the stated grounds for his removal. The Board further found
Lucchetti’s “assertion that management never brought to his attention their
concerns about his language and conduct” was “directly contradicted by [his
supervisors’] testimony and by the written record.” Where, as here, the Board
“based its decision on the testimony of agency officials,” its “credibility
determinations . . . are ‘virtually unreviewable’” on appeal. Watson v. Dep’t of
Justice, 64 F.3d 1524, 1531 (Fed. Cir. 1995).
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Lucchetti faults the Board for failing to discuss the cancellation of his
application for a vacant plumber position. But the evidence presented to the Board
about why Lucchetti was not offered the position—concerns about his language
and conduct—is the same evidence the Board credited in finding there were valid
grounds for Lucchetti’s removal. The Board therefore did not “manifestly
ignore[]” “considerable countervailing evidence” when it declined to discuss the
plumber position. See Whitmore v. Dep’t of Labor, 680 F.3d 1353, 1368 (Fed. Cir.
2012).
On the second Carr factor, though this court would have been aided by a
more detailed discussion from the Board, we find substantial evidence to support
the Board’s conclusion that there was “scant evidence” of a retaliatory motive by
those involved in the decision to terminate Lucchetti. There is no evidence that
management was aware of the OSHA complaint filed by the union on confined
space issues when Lucchetti was dismissed. Regarding Lucchetti’s earlier internal
complaints, there is evidence that management was receptive to these concerns.
Even the OSHA notice recognized the agency’s “good faith” efforts to provide
training and did not “invoke violations” for that reason.
We note that, contrary to Lucchetti’s arguments, the motives of one of his
co-workers in making complaints about Lucchetti are not relevant to the second
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Carr factor analysis. The Board’s inquiry is about whether the decision-makers
had an ulterior motive. See Carr, 185 F.3d at 1326 (finding no WPA violation
where the decision makers “were not motivated to retaliate,” even if they “acted on
information that came to them from . . . employees who were”).
On the third Carr factor, the Board did not err in finding that DOI carried its
burden even though it did not present evidence about similarly situated non-
whistleblowers. Though absence of evidence on the third Carr factor can cut
against the agency where it withholds relevant information, a lack of similarly
situated non-whistleblowers can also “effectively remove that factor from the
analysis.” Whitmore, 680 F.3d at 1374; see also Duggan, 883 F.3d at 847 (holding
that, in the absence of evidence, the third Carr factor “plays no role in our
analysis”). Lucchetti agrees that a “similarly situated” employee in this case would
be a “probationary employee with a good work record.” The Board correctly
found there were no such employees.
The Board also accurately noted that “no action whatsoever was taken by the
agency against . . . anyone else who complained about its failure to follow
pertinent regulations regarding confined spaces.” The third Carr factor, by its
terms, does not instruct the Board to consider whether other whistleblowers faced
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adverse personnel actions. See Carr, 185 F.3d at 1323. However, like the Board,
we find such evidence to be instructive.
The Carr factors and the record must be considered “as a whole.” Duggan,
883 F.3d at 847. The Board concluded that the first two Carr factors weigh in
favor of DOI and that the third factor weighs, if at all, also in DOI’s favor. The
record as a whole provides substantial evidence to support the Board’s
conclusions.
AFFIRMED.
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