George v. Department of the Army , 263 F. App'x 889 ( 2008 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3166
DAVID L. GEORGE,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
Sarah L. Wixson, Stokes Lawrence Velikanje Moore and Shore, P.S., of Yakima,
Washington, for petitioner.
Patrick B. Bryan, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Jeanne E. Davidson, Director, and Todd M. Hughes, Deputy Director. Of
counsel on the brief was Stephen Robert Hart, Office of the Staff Judge Advocate,
United States Department of the Army, of Fort Lewis, Washington.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3166
DAVID L. GEORGE,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
Petition for review of the Merit Systems Protection Board in SF0752060316-I-1.
__________________________
DECIDED: February 7, 2008
__________________________
Before MAYER, DYK, and MOORE, Circuit Judges.
PER CURIAM.
David L. George (Mr. George) appeals the United States Merit Systems
Protection Board’s (Board) final order in George v. Department of the Army,
SF0752060316-I-1 (Feb. 1, 2007). The Board affirmed the administrative judge’s June
6, 2006 initial decision, sustaining the Department of the Army’s (agency) reduction of
Mr. George’s grade from the position of Supervisor Firefighter, GS-8, step 8, to the
position of Firefighter, GS-7, step 10, based upon the agency’s charge that Mr. George
engaged in “Retaliatory Behavior Directed Against a Subordinate for Protected Activity.”
We affirm.
BACKGROUND
Mr. George submitted inaccurate time statements that over-reported the overtime
hours that he and seven of his subordinate firefighters spent in completing training
exercises at the Army’s Yakima Training Center (YTC). Another firefighter posted at
YTC, who was subordinate to Mr. George, discovered the inconsistency and reported it
to the YTC Base Commander. In response, the agency conducted an internal
investigation. During the course of the investigation, Mr. George made comments about
the presence of a “rat” at the YTC fire station. Mr. George also hung a large rat trap on
the wall in a prominent location at the YTC fire station upon which he attached a piece
of paper containing the definition of the term “rat,” which included the following
language: “a contemptible person; as one who betrays or deserts friends or associates.”
Based upon the investigator’s findings, the agency proposed Mr. George’s
demotion from Supervisory Firefighter to non-supervisory position of Firefighter, based
upon a general charge of “Supervisory Misconduct,” which was composed of three
specific charges: (1) “Allowing False Time Cards to be Processed Resulting in
Overtime Payment for Unearned Overtime for Yourself and Subordinates;” (2)
“Falsification of the Official Fire Department Incident Report;” and (3) “Retaliatory
Behavior Directed Against a Subordinate for his Protected Activity.” On December 5,
2005, the Deputy Base Commander of the YTC issued a Notice of Decision, sustaining
the agency’s charges and finding that the penalty of demotion was reasonable.
On February 6, 2006, Mr. George filed an appeal of the agency’s action. On
June 6, 2006, the administrative judge issued an initial decision that affirmed the
agency’s reduction of Mr. George’s grade based upon Charges One and Three.
2007-3166 2
On appeal to the Board, Mr. George argued that the administrative judge erred
as a matter of law by finding that Charge Three did not require a showing by the agency
that Mr. George had taken or threatened to take an adverse “personnel action” against
a subordinate. Although the Board in its February 1, 2007 order found that the
administrative judge incorrectly interpreted Charge One, the Board nevertheless
affirmed the initial decision, finding that Mr. George had not demonstrated that the
administrative judge had erred in sustaining Charge Three. This appeal followed.
DISCUSSION
This court affirms a decision of the Board unless it is arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law, or unsupported by
substantial evidence. 5 U.S.C. § 7703(c). The primary issue in this appeal—whether
the Board erred by sustaining the agency’s charge of “Retaliatory Behavior Directed
Against a Subordinate for His Protected Activity” without requiring proof of an adverse
“personnel action”—is a legal question that this court reviews de novo. See Augustine
v. Dep’t of Veterans Affairs, 429 F.3d 1334, 1338 (Fed. Cir. 2005).
George argues that the term “Retaliatory Behavior” as used in the title of Charge
Three should be interpreted in such a way as to require the agency to prove the
elements of the Whistleblower Protection Act, including proof of a “personnel action.”
The government counters that the agency did not charge Mr. George with taking or
threatening to take a “personnel action” against the subordinate or refer in any way to
the Whistleblower Protection Act in its charging documents. The government contends
that the charging documents indicate that the essence of the charge is Mr. George’s
improper harassment of a subordinate and the creation of a hostile work environment at
2007-3166 3
the YTC fire station. Finally, the government contends that Mr. George’s application of
the Whistleblower Protection Act is inconsistent with its central purposes, as Mr. George
is seeking to invoke the statute as a shield to insulate himself from the effects of his own
misconduct. See Watson v. Dep’t of Justice, 64 F.3d 1524, 1530 (Fed. Cir. 1995) (the
Whistleblower Protection Act was clearly intended to encourage Federal employees to
“blow the whistle on wrongdoing” and to “prevent reprisals against the whistleblowing
employee”).
We agree with the government. The use of the term “retaliatory” in a charge
does not mean that the government must prove that Mr. George engaged in an adverse
“personnel action.” The agency has the right and the duty to discipline employees,
particularly supervisors who engage in acts of harassment, in order to promote the
“efficiency of the service.” See 5 U.S.C. § 7513(a) (an agency may take an “adverse
action” against an employee, such as reducing an employee’s grade, for “such cause as
will promote the efficiency of the service”).
The essence of Charge Three is not that Mr. George violated the Whistleblower
Protection Act, but rather that his behavior in hanging the rat trap and commenting
about the presence of a rat at the YTC fire station led to a hostile work environment. In
the specifications underlying the charge in the proposal letter, the agency characterized
the charge as “retaliatory and harassing behavior that created a hostile work
environment.” The final decision letter specifies that the basis for the agency’s action
was Mr. George’s lapse in judgment as a supervisor by posting the rat trap while
“knowing that an investigation was ongoing” and that the display of the rat trap could be
“construed as harassment.”
2007-3166 4
George also asserts that even if Charge Three is upheld, removal from
supervisory status was not an appropriate penalty. An agency’s penalty determination
should only be overturned when “the agency failed to weigh the relevant factors, or . . .
the agency’s judgment clearly exceeded the limits of reasonableness.” Hunt v. Dep’t of
Health & Human Services, 758 F.2d 608, 610 (Fed. Cir. 1985) (citing Douglas v.
Veterans Admin., 5 M.S.P.B. 313, 333 (1981)). When the Board sustains fewer than all
of the agency’s charges, it may mitigate the agency’s penalty to the maximum
reasonable penalty. Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999). The
Board exercises its mitigation after consideration of the relevant Douglas factors. Adam
v. U.S. Postal Serv., 96 M.S.P.R. 492, aff’d, 137 Fed. Appx. 352 (Fed. Cir. 2005).
Here, the Board balanced the relevant Douglas factors including the absence of
a prior disciplinary history and Mr. George’s years of government service, and
determined that the penalty of reduction was within the tolerable limits of
reasonableness, given Mr. George’s position as a supervisor and the seriousness of the
misconduct. In addition, according to the agency’s Table of Penalties, Mr. George’s
reduction in grade fell within the range of penalties for a first offense of “reprisal.”
For the foregoing reasons, we affirm the Board’s decision.
2007-3166 5