Losada v. Department of Defense , 484 F. App'x 529 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
MANUEL LOSADA,
Petitioner,
v.
DEPARTMENT OF DEFENSE,
Respondent.
__________________________
2012-3020
__________________________
Petition for review of the Merit Systems Protection
Board in case no. DC0752100800-I-1.
__________________________
Decided: June 12, 2012
___________________________
MANUEL LOSADA, Avon Park, Florida, pro se.
A. BONDURANT ELEY, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and MARTIN F.
HOCKEY, JR., Assistant Director.
__________________________
LOSADA v. DEFENSE 2
Before BRYSON, DYK, and MOORE, Circuit Judges.
PER CURIAM.
Manuel Losada (“Losada”) petitions for review of a de-
cision of the Merit Systems Protection Board (“Board”),
which affirmed a decision of the Department of Defense
Education Activity (“DoDEA”) to remove Losada for
misconduct. Losada v. Dep’t of Defense, No. DC-0752-10-
0800-I-1 (M.S.P.B. Sept. 16, 2011) (“Final Order”); Losada
v. Dep’t of Defense, No. DC-0752-10-0800-I-1 (M.S.P.B.
Feb. 14, 2011) (“Initial Decision”). We vacate and re-
mand.
BACKGROUND
In January 2009, Losada was employed by DoDEA as
a guidance counselor at Naples Elementary School
(“NES”), a school for military dependents overseas. In
June 2010, DoDEA removed Losada for (1) “Unauthorized
disclosure of confidential information” (the “unauthorized-
disclosure charge”) and (2) “Failure to follow procedures
governing the reporting of child abuse” (the “failure-to-
report charge”). The unauthorized-disclosure charge was
based on four disclosures of confidential information in
March and April 2010 to a reporter for Stars and Stripes
magazine about identifiable students and teachers, in-
cluding information about students’ medical conditions
and about a co-worker’s discipline for misconduct. The
failure-to-report charge was based on an e-mail sent on
March 17, 2010, to the Office of Special Counsel (“OSC”), 1
with the subject “child hurt yesterday at NES by an
adult,” describing an incident of suspected abuse which
Losada had not reported to the local Family Advocacy
1 The Board erroneously stated that the March 17
e-mail was also sent to the Stars and Stripes reporter, but
it was actually sent to Jennifer Pennington at OSC.
3 LOSADA v. DEFENSE
Program (“FAP”) officer or to his immediate supervisor, as
required by DoDEA Regulation 2050.9. 2
Losada appealed his removal to the Board, alleging
that he was removed in retaliation for protected whistle-
blowing activity and that the penalty of removal was
disproportionate to the offense. The administrative judge
(“AJ”) noted that Losada had stipulated to the facts
supporting the unauthorized-disclosure charge, and found
that DoDEA had proven the failure-to-report charge by a
preponderance of the evidence based on the March 17 e-
mail. In particular, the AJ found that DoDEA Regulation
2050.9 requires personnel to “report all suspected or
alleged child abuse to the local FAP officer and also the
reporting employee’s immediate supervisor,” that Losada
had been specifically reminded of this policy by his super-
visor, and that Losada had testified that he was aware of
the regulation and did not report the incident of suspected
child abuse that he described in the March 17 e-mail.
Initial Decision, slip op. at 5-6. The AJ concluded that the
penalty of removal was reasonable under the factors set
out in Douglas v. Veterans Administration, 5 M.S.P.R.
280, 305-06 (1981).
2 The regulation states that “[i]t is DoDEA policy
that all DoDEA personnel will participate in the identifi-
cation of child abuse and the protection of children by
promptly reporting all suspected or alleged child abuse to
the local Family Advocacy Program officer and to the
reporting employee’s immediate supervisor.” DoDEA
Regulation 2050.9, available at
http://www.dodea.edu/foia/iod/pdf/2050_9.pdf. “Child
Abuse” is defined to include “physical injury, sexual
maltreatment, emotional maltreatment, deprivation of
necessities, or combinations for a child by an individual
responsible for the child’s welfare under circumstances
indicating the child’s welfare is harmed or threatened.”
Id.LOSADA v. DEFENSE 4
The AJ also rejected Losada’s Whistleblower Protec-
tion Act (“WPA”) defense. Losada alleged that beginning
in May 2009, he had made repeated disclosures about
NES’s mishandling of child abuse. Losada’s list of pro-
tected disclosures in his initial appeal included the disclo-
sures to the Stars and Stripes reporter in March and
April 2010, as well the e-mail to OSC on March 17, 2010,
although it did not include copies of these disclosures.
The AJ rejected a prehearing documentary submission by
Losada because it was untimely and not served on Do-
DEA, but the AJ advised Losada that he could admit any
relevant documents during the hearing. At the hearing,
Losada did not move to admit any documents, and the AJ
found that he had failed to show that he had made any
disclosures besides the charged disclosures to the reporter
in March and April 2010. The AJ found that the disclo-
sures to the reporter were not protected under the WPA
because they mostly described “child-on-child” incidents,
which are not “child abuse” under the applicable regula-
tions. Initial Decision, slip op. at 14-15. The AJ men-
tioned Losada’s WPA allegation that “on March 17, 2010,
he ‘contacted’ [OSC] ‘regarding the physical abuse of a
child, which [he] witnessed first hand,’” but concluded
that Losada “failed to introduce documentary evidence to
support th[is] allegation[],” apparently not realizing that
this was the same March 17 e-mail that was the basis for
the failure-to-report charge. Id. at 10. The AJ also found,
in the alternative, that even if Losada had demonstrated
that he made a protected disclosure, DoDEA demon-
strated that it would have removed him absent the pro-
tected disclosure. The AJ thus affirmed DoDEA’s removal
action. Id. at 23.
The Board denied Losada’s petition for rehearing.
The Board rejected Losada’s argument that he had im-
proper ex parte communications with the AJ, noting that
5 LOSADA v. DEFENSE
the parties had agreed to waive the prohibition against ex
parte communications for settlement discussions. The
Board also held that the statements attributed to the AJ
did not establish bias; that the AJ did not err in rejecting
Losada’s untimely prehearing submission; and that
Losada’s new evidence involving unrelated misconduct by
a DoDEA official was irrelevant. In reference to the WPA
defense, the Board stated that the AJ’s findings regarding
Losada’s disclosures to the reporter were “supported by
the weight of the evidence in the record.” Final Decision,
slip op. at 5. Finally, in response to Losada’s argument
that NES officials offered inconsistent testimony at the
hearing and in their depositions, the Board stated that it
would defer to the AJ’s credibility determinations. Except
as modified by its discussion, the Board adopted the AJ’s
decision as the Board’s final decision. Id. at 6. Losada
timely appealed to this court, and we have jurisdiction
under 28 U.S.C. § 1295(a)(9).
DISCUSSION
Our review of final Board decisions is limited. Under
5 U.S.C. § 7703(c), we may only set aside agency actions,
findings, or conclusions of law found to be “(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.”
The WPA prohibits agencies from taking a personnel
action with respect to an employee who makes a disclo-
sure “which the employee or applicant reasonably believes
evidences—(i) a violation of any law, rule, or regulation,
or (ii) gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to
public health or safety.” 5 U.S.C. § 2302(b)(8)(A); see
LOSADA v. DEFENSE 6
Chambers v. Dep’t of the Interior, 515 F.3d 1362, 1367
(Fed. Cir. 2008).
Losada’s primary argument on appeal is that the
Board erred in rejecting his prehearing submission, which
he alleges contained evidence of numerous protected
disclosures under the WPA other than the five e-mails.
We see no error in the Board’s rejection of this submis-
sion. During the prehearing conference, the AJ extended
the period for Losada to file a prehearing submission until
December 2, 2010. Losada filed 111 disorganized pages
on Friday, December 3, which did not match the docu-
ments he served on DoDEA. At the hearing on Monday,
December 6, the AJ said, “I’m going to reject the docu-
ments for now, and to the extent that Mr. Losada wants
to introduce those documents as evidence during the
examination of witnesses, we’ll address each exhibit as we
move forward.” Resp’t’s App. 135. Losada did not move to
admit any documents during the hearing. After the
hearing, Losada asked to admit a limited number of
documents—not including his alleged disclosures—which
the AJ admitted. “We leave discovery and evidentiary
issues to the ‘sound discretion of the board and its offi-
cials,’ and ‘will not overturn the board on such matters
unless an abuse of discretion is clear and is harmful.’”
Chambers, 515 F.3d at 1371 (quoting Curtin v. Office of
Pers. Mgmt., 846 F.2d 1373, 1378 (Fed. Cir. 1988)). The
Board did not abuse its discretion in rejecting Losada’s
untimely submission while still allowing Losada to intro-
duce documents during and after the hearing.
Thus, the only disclosures at issue in this appeal are
the ones that were the bases for Losada’s removal
charges: the four disclosures to the Stars and Stripes
reporter supporting the unauthorized-disclosure charge
and the March 17 e-mail to OSC supporting the failure-to-
report charge. The AJ analyzed the four disclosures to
7 LOSADA v. DEFENSE
the reporter and found that they generally described
“child-on-child” incidents, which do not constitute “child
abuse” and are thus not protected disclosures, and the
Board adopted this conclusion. Initial Decision, slip op. at
14-15; Final Decision, slip op. at 5. We affirm the Board’s
decisions that DoDEA has proven the unauthorized-
disclosure charge with respect to those four disclosures,
and that those disclosures are not protected under the
WPA.
A remand is required, however, with respect to the
March 17 e-mail to OSC. The Board found that the
disclosure in this e-mail demonstrated that Losada had
violated DoDEA Regulation 2050.9, which was the basis
for the failure-to-report charge. The Board also adopted
the AJ’s conclusion that Losada “failed to introduce
documentary evidence to support [his] allegation[]” that
“on March 17, 2010, he ‘contacted’ [OSC] ‘regarding the
physical abuse of a child, which [Losada] witnessed first
hand.’” Initial Decision, slip op. at 10. The Board appar-
ently incorrectly believed that the March 17 e-mail
Losada sought to raise as a protected disclosure under the
WPA was different from the March 17 e-mail that was the
basis for the failure-to-report charge, and that the WPA e-
mail was thus not in the record. Because the e-mail was
in fact part of the record, the Board should have ad-
dressed it, even though Losada did not separately obtain
its admission at his hearing.
The March 17 e-mail had the subject “child hurt yes-
terday at NES by an adult,” and it described an incident
in which an unknown adult “was holding down [a stu-
dent’s] hands and forearms very tightly to the desk” and
the child “kept yelling ‘Let me go’, ‘let me go.’” Initial
Decision, slip op. at 5-6. Losada “testified he believed the
incident as described . . . constituted child abuse,” and the
AJ concluded that Losada violated DoDEA Regulation
LOSADA v. DEFENSE 8
2050.9, which requires prompt reporting of child abuse.
Id. If the March 17 e-mail described an incident of child
abuse such that Losada violated DoDEA Regulation
2050.9, then it follows that the e-mail disclosed informa-
tion which Losada “reasonably believe[d] evidences . . . a
violation of any law, rule, or regulation.” 5 U.S.C.
§ 2302(b)(8)(A).
Because the Board failed to address Losada’s WPA de-
fense regarding the March 17 e-mail, we must remand to
the Board. The Board must determine whether the
March 17 e-mail was a protected disclosure that was a
“contributing factor” in the personnel action, and if so,
whether DoDEA has met its burden of showing “by clear
and convincing evidence that it would have taken the
same personnel action in the absence of such a disclo-
sure.” 5 U.S.C. § 1221(e). 3
This case is remanded to the Board for further pro-
ceedings consistent with this opinion.
COSTS
No costs.
3 The Board should also determine whether the
contents of the March 17 e-mail, if a protected disclosure,
can nonetheless be used to establish misconduct by
Losada. See generally Kalil v. Dep’t of Agriculture, 479
F.3d 821, 824-25 (Fed. Cir. 2007); Greenspan v. Dep’t of
Veterans Affairs, 464 F.3d 1297, 1305 (Fed. Cir. 2006);
Watson v. Dep’t of Justice, 64 F.3d 1524, 1528-30 (Fed.
Cir. 1995); Marano v. Dep’t of Justice, 2 F.3d 1137, 1143
(Fed. Cir. 1993).