Pierce v. Department of the Navy , 253 F. App'x 946 ( 2007 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3275
GLENN R. PIERCE,
Petitioner,
v.
DEPARTMENT OF THE NAVY,
Respondent.
Glenn R. Pierce, of Milton, Florida, pro se.
L. Misha Preheim, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. On the brief
were Peter D. Keisler, Acting Attorney General, Jeanne E. Davidson, Director, and
Todd M. Hughes, Deputy Director.
Appealed from: United States Merit Systems Protection Board
NOTE: This decision is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3275
GLENN R. PIERCE,
Petitioner,
v.
DEPARTMENT OF THE NAVY,
Respondent.
___________________________
DECIDED: November 7, 2007
___________________________
Before LOURIE, DYK, and PROST, Circuit Judges.
PER CURIAM.
Glenn R. Pierce (“Mr. Pierce”) appeals from the decision of the Merit Systems
Protection Board (the “Board”) in AT0752060723-I-1, affirming the decision of the
Department of the Navy (the “agency”) to remove him. We affirm.
BACKGROUND
Prior to his removal, Mr. Pierce was employed by the agency as a Firefighter,
GS-07, at the Naval Air Station, Whiting Field, in Milton, Florida. At the time of his
removal, Mr. Pierce had approximately 26 years of federal service, including his prior
military service, and had served with the agency for approximately 12 years. The
agency’s reasons for removing Mr. Pierce were set forth in two charges in a notice of
proposed removal. Both charges asserted that Mr. Pierce engaged in disrespectful
conduct toward a supervisor with respect to two separate incidents on December 15,
2005. 1 The agency’s first charge alleged that at approximately 7:40 on the morning of
December 15, 2005, Mr. Pierce objected to duty assignments that had been posted by
Captain Joseph Gibson. The second charge alleged that while assigned to a special
detail to participate in a holiday event on the base later the same day, Mr. Pierce
complained to Captain Gibson at length about the wisdom of the assignment. In each
case, the charge alleged that Pierce’s conduct toward Captain Gibson was disrespectful
because it was loud and abrasive.
In a decision issued on May 2, 2006, the deciding official and executive officer of
the Naval Air Station Pensacola, William B. Stewart, determined that the charges
against Mr. Pierce were supported by the preponderance of the evidence and merited
his removal. On appeal, after a hearing before an administrative judge (“AJ”), the AJ
affirmed. The AJ noted that the evidence presented at the hearing as to the basis for
the charges against Mr. Pierce was “confused and contradictory,” and did not find that
all of the facts recited in the charge against Mr. Pierce were supported by the conflicting
evidence. Pierce v. Dep’t of the Navy, No. AT-0752-06-0723-I-I, at 3, 6 (M.S.P.B. Dec.
22, 2006). The AJ found, however, that “even when sifting and weighing this tangled
evidence in the light most favorable to [Mr. Pierce], and with special reference to the
testimony of his own witnesses, who evidenced a strong motivation to interpret events
on his behalf, it is plain that he engaged in disrespectful conduct on both occasions on
December 15, 2005.” Id. at 6-7.
1
A third charge, alleging that Mr. Pierce engaged in inappropriate conduct
with respect to a separate incident on December 15, 2005, was not sustained by the
Board.
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The AJ also rejected two retaliation defenses raised by Mr. Pierce, which alleged
that Mr. Pierce’s removal was in retaliation either for a grievance he filed relating to the
agency’s staffing and leave or for protected whistleblowing activity, including a letter he
wrote to Congressman Jeff Miller and a series of reports Mr. Pierce made to the Air
Force Civil Engineer Support Agency. The AJ found that, even assuming that the
disclosures were protected, there was no evidence to establish any connection between
Mr. Pierce’s removal and the disclosures or the grievance. Finally, the AJ determined
that in spite of Mr. Pierce’s long record of federal service, removal was warranted
because of a particular need for respect for authority among firefighters and because of
Mr. Pierce’s history of prior discipline for similar conduct.
The AJ’s decision became the final decision of the Board upon denial of review.
Mr. Pierce timely filed this appeal. 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).
Mr. Pierce raises several arguments on appeal. First, Mr. Pierce challenges the
one-week deadline for filing written arguments in lieu of closing argument set by the AJ,
arguing that this time was insufficient to properly prepare his argument and that it did
not allow him to obtain a transcript prior to drafting the written argument. This argument
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is without merit. Mr. Pierce has not identified any right to a particular time to prepare
such a submission after the close of evidence, or any right to have a transcript prepared
in advance, neither of which would have been available if oral closing arguments had
been presented.
Second, Mr. Pierce argues that the Board erred by failing to exclude or discount
all of Captain Gibson’s testimony, asserting that Captain Gibson’s credibility is undercut
because Captain Gibson asked Mr. Pierce to assist him with a carpentry project, which
Mr. Pierce assumed to be an offer to protect Mr. Pierce from future discipline in
exchange for the assistance. We reject this argument. It does not appear that the
Board relied upon any testimony from Captain Gibson about Mr. Pierce’s conduct on
December 15, 2005, in reaching his conclusion that Mr. Pierce engaged in disrespectful
conduct. Instead, the Board found from the testimony of Mr. Pierce’s own witnesses
that, whatever the specifics of Mr. Pierce’s disagreements with Captain Gibson on
December 15, 2005, Mr. Pierce’s conduct in airing those disagreements was
disrespectful because it became “loud and heated” and “combative, insulting, and
abrasive.” Pierce v. Dep’t of the Navy, No. AT-0752-06-0723-I-I, at 7.
Third, Mr. Pierce contends that the Board’s decision is not supported by
substantial evidence. As noted earlier, Mr. Pierce’s own witnesses described the
disrespectful nature of his actions though supporting Mr. Pierce’s version of the events
in the particulars. The fact that a state administrative body, during the course of Florida
unemployment compensation proceedings, found that “it was not shown that claimant
[Mr. Pierce] was intentionally disrespectful to his superiors or that he acted
inappropriately,” Pierce v. Dep’t of Defense, No. 2006-40378F, slip op. at 2 (Office of
2007-3275 4
Appeals, Fla. Agency for Workforce Innovation, Sept. 6, 2006), does not establish that
the Board’s contrary finding here lacks substantial evidence. Credibility determinations
of the official who actually heard testimony, such as the AJ in this case, will not be set
aside by this court unless the determination is “inherently improbable or discredited by
undisputed evidence or physical fact.” Gibson v. Dep’t of Veterans Affairs, 160 F.3d
722, 725-26 (Fed. Cir. 1998).
Fourth, Mr. Pierce argues that the Board erred in concluding that disrespectful
conduct toward a supervisor is particularly disruptive among firefighters who, like law
enforcement employees, work in a context where “the safety of both co-workers and the
public may often rest upon the maintenance of discipline, and the ready compliance with
the chain of command.” Pierce v. Dep’t of the Navy, No. AT-0752-06-0723-I-I, at 10
(citing Bolton v. United States Dep’t of Justice, 26 M.S.P.R. 658, 663 (1985), aff’d, 790
F.2d 93 (Fed. Cir. 1986)). Mr. Pierce argues that this standard could not be applied to
him because it was not articulated in any official publication of the agency. There is no
such requirement. Rather, the agency must prove, pursuant to 5 U.S.C. § 7513(a), that
removal would “promote the efficiency of the service.” In this case, the Board’s finding
of a special need to respect the chain of command was supported by substantial
evidence.
Fifth, Mr. Pierce argues that the Board’s reasoning in support of removal is
predicated on an assumption that Captain Gibson was a supervisor and that this
assumption is contrary to Bolton v. Merit Sys. Protection Bd., 154 F.3d 1313 (Fed. Cir.
1998), and was not supported by the evidence presented at the hearing. We disagree.
Bolton’s analysis of the statutory term “supervisor” has no bearing on this case,
2007-3275 5
because Bolton concerned the meaning of the term in the context of Board jurisdiction
over appeals by supervisory employees of the United States Postal Service. Id. at
1316-17. In this case, the term supervisor is properly understood in the context of the
firefighting chain of command, and there is no dispute that Mr. Pierce was assigned the
rank of lieutenant on the day in question, which is lower than Captain Gibson’s rank.
Sixth, Mr. Pierce asserts that the Board erred in excluding the testimony of
Royce Johnson. Mr. Johnson was originally requested as a witness for the agency, but
the agency withdrew its request to call Mr. Johnson as of the time of the prehearing
conference. Mr. Pierce had requested the opportunity to call any witness listed by the
government in his filings prior to the prehearing conference, and apparently requested
an opportunity to call Mr. Johnson. The Board excluded Mr. Johnson’s testimony.
Mr. Pierce asserts that if he had been allowed to call Mr. Johnson, his testimony
would have assisted Mr. Pierce in establishing that Captain Gibson was not a
supervisor and in establishing that the incidents upon which Mr. Pierce’s removal was
based were “routine every day occurrence[s] which [Mr. Pierce] reported to the
appropriate supervisor as required.” Petr.’s Br., “Continuation Block 5” (tab 4), at 1-2.
Because Mr. Pierce has made no showing that he made any detailed proffer to the AJ
as to the testimony Mr. Johnson would offer, there is no basis to conclude that the
decision to exclude Mr. Johnson’s testimony was an abuse of discretion.
Finally, Mr. Pierce contends that the Board erred in rejecting his affirmative
defenses based on retaliation for protected whistleblowing and for having filed a
grievance. The Board’s determination that neither the alleged whistleblowing activity
nor the grievance contributed to his removal was supported by substantial evidence.
2007-3275 6
Mr. Stewart testified that his decision to remove Mr. Pierce was not based on the fact
that Mr. Pierce had filed a grievance or on the activities that Mr. Pierce alleges are
protected whistleblowing activities.
For the reasons set forth above, the Board’s decision is affirmed.
No costs.
2007-3275 7