King v. Department of Veterans Affairs , 248 F. App'x 192 ( 2007 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3225
DIANE KING,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Diane King, of Deatsville, Alabama, pro se.
Maame A.F. Ewusi-Mensah, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent. With
him on the brief were Peter D. Keisler, Assistant Attorney General, Jeanne E. Davidson,
Director, and Kathryn A. Bleecker, Assistant Director.
Appealed from: United States Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3225
DIANE KING,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
___________________________
DECIDED: September 14, 2007
___________________________
Before RADER, Circuit Judge, CLEVENGER, Senior Circuit Judge, and DYK, Circuit
Judge.
PER CURIAM.
Diane King (“King”) appeals from the decision of the Merit Systems Protection
Board (“Board”) in AT-1221-06-0781-W-1, denying her request for corrective action
under the Whistleblower Protection Act (“WPA”) after she was suspended from her
position for one day. Because we conclude that the various errors alleged by King are
without merit, we affirm.
BACKGROUND
King is a Medical Technologist, GS-09, at the VA Health Care System in
Alabama. On November 10, 2005, the VA proposed to reprimand King for making false
statements about a co-worker. According to King’s own admission, on November 15,
2005, she was off-duty but on the VA’s East Campus in Tuskegee for a doctor’s
appointment and went into the canteen to do Christmas shopping. She approached a
supervisor, who said hello, and King responded: “You know, I didn’t get my law degree
out of a cracker jack box. You’re going to wish you hadn’t started this.” Based on this
conduct, the agency suspended her for one day for “disrespectful conduct.” King
claimed that she was disciplined for protected whistleblowing, alleging that she had
engaged in protected whistleblowing in making the statements about the other
employee for which the earlier reprimand was proposed. She exhausted her remedies
with the Office of Special Counsel and then filed an Individual Right of Action with the
Merit Systems Protection Board (“Board”). After a hearing, the Administrative Judge
issued an initial decision denying corrective action, which became the final decision of
the Board upon denial of review. King timely appealed to this court, and we have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
The Board’s decision must be affirmed unless it is found to be arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; obtained
without procedures required by law, rule, or regulation; or unsupported by substantial
evidence. 5 U.S.C. § 7703(c) (2000); Yates v. Merit Sys. Prot. Bd., 145 F.3d 1480,
1483 (Fed. Cir. 1998).
Even assuming, solely for purposes of this appeal, that King made a protected
disclosure and that the protected disclosure was a contributing factor in the personnel
action, the agency can sustain the discipline if it can show by clear and convincing
evidence that it would have taken the action in the absence of the protected disclosure.
5 U.S.C. § 1221(e)(2). We conclude that the Board’s finding that the agency would
have taken its action regardless of the protected alleged activity was supported by clear
2007-3225
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and convincing substantial evidence. As found by the Board, the evidence of
disrespectful conduct was both “strong” and “undisputed” and the agency had imposed
far more serious discipline on “similarly situated individuals,” whom the Board found
were not whistleblowers.
While King argues that the suspension was improper because she was off-duty
at the time of the incident, adverse personnel actions may be taken for off-duty conduct
if there is a nexus between the conduct and the “efficiency of the service.” Allred v.
Dept. of Health & Human Servs., 786 F.2d 1128, 1130 (Fed. Cir. 1986). We conclude
that the record provides substantial evidence of a nexus, including the fact that the
incident happened at her employer’s facility and involved a supervisor. King also
argues that her statements were protected by the First Amendment, but the government
may restrict speech if it “reasonably believe[] [it] would disrupt the office, undermine [a
supervisor’s] authority, and destroy close working relationships.” Connick v. Myers, 461
U.S. 138, 154 (1983). The record discloses substantial evidence to support a
conclusion that this is such a situation.
King makes a variety of other arguments, each of which we have considered
carefully and find to be without merit. We therefore affirm.
No costs.
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