William Hugenberg v. Department of Commerce ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM C. HUGENBERG, JR., DOCKET NUMBER
Appellant, DE-1221-10-0530-B-2
v.
DEPARTMENT OF COMMERCE, DATE: August 11, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
William C. Hugenberg, Jr., Grand Junction, Colorado, pro se.
Tyree P. Ayers, Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the remand initial decision,
which denied his request for corrective action in this individual right of action
(IRA) appeal. Generally, we grant petitions such as this one only in the following
circumstances: the remand initial decision contains erroneous findings of
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
material fact; the remand initial decision is based on an erroneous interpretation
of statute or regulation or the erroneous application of the law to the facts of the
case; the administrative judge’s rulings during either the course of the appeal or
the remand initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the remand
initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 The Board remanded this appeal for limited proceedings consistent with the
U.S. Court of Appeals for the Federal Circuit ’s decision in Whitmore v.
Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012), and instructed the
administrative judge to take further testimony and to revisit his findings and
determinations regarding the relevancy of disallowed witnesses. Hugenberg v.
Department of Commerce, 120 M.S.P.R. 381 (2013). This appeal is now before
us after remand.
¶3 The agency terminated the appellant from his position as Local Census
Office Manager for the Grand Junction Local Census Office (GJLCO) on
February 23, 2010, prior to the end of his term appointment, based on
unacceptable conduct and performance. Hugenberg v. Department of Commerce ,
MSPB Docket No. DE-1221-10-0530-W-1, Initial Appeal File (IAF), Tab 11,
Subtab 2. The appellant subsequently filed a whistleblower reprisal complaint
with the Office of Special Counsel (OSC). IAF, Tab 6, Subtab 15. After
receiving OSC’s closeout letter, he filed the instant IRA appeal, in which he
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alleged that the agency terminated him in retaliation for his protected
whistleblower disclosures. 2 IAF, Tab 1.
¶4 On appeal, the appellant claimed that the Regional Census Center (RCC)
caused the problems that prevented him from successfully selecting, enrolling,
hiring, and training employees and that he was “being set up as a scapegoat” in
retaliation for making two whistleblowing disclosures. Id. Specifically, the
appellant claimed his first disclosure was a lette r dated February 20, 2010, which
he sent to the agency’s Office of the Inspector General (OIG), with copies to the
Census Bureau Director, U.S. Senators Michael Bennett and Mark Udall, and
U.S. Representative John Salazar. Id., Exhibit 3. In the letter, the appellant
requested an investigation into “poor prior planning and software defects noted in
[the OIG’s February 2010 Quarterly] report,” and he asserted that, due to
problems with the agency’s payroll software, the GJLCO was unable to meet
hiring goals and certain GJLCO employees were being underpaid. Id.¶5 The appellant claimed his second disclosure concerned complaints he made
to the Regional Manager for Quality Assurance from December 2009 , through
February 2010, regarding the Regional Technician (RT). Hugenberg v.
Department of Commerce, MSPB Docket No. DE-1221-10-0530-W-3, Appeal
File (W-3 AF), Tab 5 at 14-17. The appellant indicated that he had observed the
RT’s disheveled and unkempt appearance and erratic b ehavior. He also
contended that the RT had been involved in inappropriate relationships with
females in the GJLCO, which violated sexual harassment rules, significantly
interfered with hiring, and, in one instance, caused a safety issue when a female
staffer’s boyfriend became aware of the RT’s purported affair with the staffer.
Id.2
A more detailed background is set forth in our remand decision and the administrative
judge’s initial decision. Hugenberg, 120 M.S.P.R. 381, ¶¶ 2-8; Hugenberg v.
Department of Commerce, MSPB Docket No. DE-1221-10-0530-W-3, Initial Decision
at 2-6 (Mar. 6, 2012).
4
¶6 On appeal, the administrative judge found Board jurisdiction over the
appellant’s IRA appeal and held a hearing. W-3 AF, Tab 8, Initial Decision (ID)
at 5. The administrative judge ultimately found that the agency proved that it
would have terminated the appellant in the absence of his disclosures regarding
the RT. ID at 10-15. Therefore, the administrative judge denied the appellant’s
request for corrective action. ID at 15. The Board granted the appellant’s
petition for review, finding that the administrative judge failed to identify all of
the issues and denied relevant evidence, and remanded the appeal for further
adjudication. Hugenberg, 120 M.S.P.R. 381.
¶7 On remand, the administrative judge granted the appellant’s request to
consider his February 18 and 19, 2010 disclosures directly to RCC management
concerning problems he found with the Decennial Application Personnel and
Payroll System (DAPPS) as protected disclosures which were contributing factors
in the agency’s decision to terminate his employment. Hugenberg v. Department
of Commerce, MSPB Docket No. DE-1221-10-0530-B-2, Remand Initial Decision
(RID) at 5 (Apr. 28, 2016). The administrative judge also reconsidered the
parties’ request for relevant witnesses and revisited his findings and
determinations as to the relevancy of the remaining proposed witnesses. After
holding a supplemental hearing, the administrative judge found that management
officials involved in the appellant’s termination lacked any retaliatory motive
because they credibly testified tha t they had not received the appellant’s
February 20, 2010 letter prior to taking the action to terminate him. The
administrative judge further analyzed the appeal in accordance with Whitmore
and again found that the agency presented clear and convincing e vidence that it
would have removed the appellant in the absence of his protected disclosures
concerning the RT and his allegations that he made disclosures concerning the
DAPPS problems. RID at 8-13. Accordingly, the administrative judge denied the
appellant’s request for corrective action. RID at 14.
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¶8 The appellant has filed a petition for review of the remand initial decision.
Remand Petition for Review (RPFR) File, Tab 1. The agency has filed a
response. RPFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶9 The appellant argues on review that the administrative judge erred in
denying his motion to add his disclosure of inaccurate pay rates to his appeal, and
he asserts that the administrative judge failed to explain the basis for the denial.
RPFR File, Tab 1 at 5. In this connection, the appellant asserts that, after finding
that the inaccurate pay rate claim was not properly before the Board, the
administrative judge further erred by excluding his witness L.N., based on his
finding that “her alleged bias against him is unrelated to any accepted
whistleblowing disclosures.” RPFR File, Tab 1 at 5-7; Hugenberg v. Department
of Commerce, MSPB Docket No. DE-1221-10-0530-B-1, Remand File (RF),
Tab 14.
¶10 However, contrary to the appellant’s assertion otherwise, the administrative
judge explicitly stated in his February 14, 2014 Order and Summary of Status
Conference, that he denied the request to add the pay rates disclosure. RF,
Tab 14. He reasoned that the appellant failed (1) to show that he raised and
exhausted this alleged disclosure before OSC, or (2) to show that he raised it
before the Board in his prior petition for review. Id. As to the denial of L.N. as a
witness, the administrative judge has wide discretion under 5 C.F.R.
§ 1201.41(b)(8), (10) to exclude witnesses whe n it has not been shown that their
testimony would be relevant, material, and nonrepetitious. Franco v. U.S. Postal
Service, 27 M.S.P.R. 322, 325 (1985). Here, because the proffered testimony for
the witness was related to the appellant’s pay rates disclosure, the administrative
judge properly denied the witness because the proffered testimony was irrelevant
to any accepted whistleblowing disclosure. RF, Tab 14. While the appellant
disagrees with administrative judge’s rulings concerning the inaccurate pay rate
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claim and witness L.N., he has provided no basis upon which to disturb the
rulings.
¶11 The appellant also asserts that the administrative judge failed to apply the
Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112-199,
126 Stat. 1465, and he appears to argue that, because this case was remanded for
the administrative judge to apply Whitmore to the analysis of his disclosures
concerning the RT, the administrative judge was required to thoroughly reanalyze
all of the claims he raised below and even address new arguments he raised for
the first time on remand. RPFR File, Tab 1 at 7. For example, the appellant
argues on review that the adminis trative judge erred by failing to consider all of
the potential categories of protected disclosures that were raised in his original
initial appeal but were not addressed in the initial decision. Id. at 8. The
appellant contends that, as a result, the Board “had no knowledge” of the various
other potential categories of protected disclosures when it issued the decision
remanding the appeal and limited the Whitmore analysis to only “disclosures
regarding the RT.” Id.¶12 We disagree. The Board remanded this appeal for the limited purposes of
determining whether the appellant’s February 20, 2010 letter was a contributing
factor in his termination, additional findings and an analysis under Whitmore as to
the appellant’s disclosures concerning the RT, to have the administrative judge
revisit his findings and determinations about the relevancy of the remaining
proposed witnesses, and further reasoning for his excluding any witnesses. Thus,
contrary to the appellant’s arguments, the administ rative judge appropriately
limited his review to those areas.
¶13 Furthermore, if the appellant believed that there were issues not addressed
in the original initial decision that should have been considered by the Board on
review, it was the appellant’s responsibility to raise those arguments in his earlier
petition for review. The appellant did not do so, and the Board will not address
his arguments regarding the initial decision for a first time on review absent a
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showing that they are based on new and mate rial evidence not previously
available despite his due diligence. The appellant has not made such a showing
here.
¶14 Similarly, the appellant argues for the first time on review that the
administrative judge erred by “ignoring the extent” that the agency “ab used its
authority” by subjecting him to a “hostile work environment.” RPFR File, Tab 1
at 9. However, because the appellant has made no showing that this argument is
based on new and material evidence not previously available despite his due
diligence, the Board has not considered it on review. Banks v. Department of the
Air Force, 4 M.S.P.R. 268, 271 (1980).
¶15 The appellant also argues that the administrative judge failed to properly
apply Whitmore, failed to apply the “cat’s paw analysis” and the “mosaic” theory
of retaliation, and he reasserts that the administrative judge misapplied the clea r
and convincing standard, favored the agency, and cherry picked the evidence.
RPFR File, Tab 1 at 10-11, 18-22. We disagree. In raising these arguments, the
appellant merely reiterates his claim that his termination was pretext , and he
challenges the administrative judge’s interpretation of the evidence and his
credibility determinations concerning the hearing testimony. Id. at 18-22, 24-28.
Additionally, the appellant argues that the administrative judge discounted his
fully corroborated testimony. Id. at 23.
¶16 We have considered the appellant’s arguments on review concerning the
administrative judge’s weighing of the evidence, however, and we discern no
reason to reweigh the evidence or substitute our assessment of the record
evidence for that of the administrative judge. See Crosby v. U.S. Postal Service ,
74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the administrative
judge’s findings when she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions on issues of credibility); Broughton v.
Department of Health & Human Services , 33 M.S.P.R. 357, 359 (1987) (same);
see also Haebe v. Department of Justice , 288 F.3d 1288, 1302 (Fed. Cir. 2002)
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(finding that the Board may overturn credibility determinations that are implicitly
or explicitly based on demeanor only when it has “sufficiently sound” reasons for
doing so).
¶17 Specifically, the administrative judge revisited hi s findings and
determinations concerning witnesses, he provided the parties the opportunity to
request additional relevant witnesses, and he explained why the appellant decided
not to call five additional witnesses. RID at 5 n.5. In addition, the adminis trative
judge provided valid reasoning for his exclusion of L.N. as a witness. RF,
Tab 14. The administrative judge also performed a thorough and detailed
Whitmore analysis as instructed in the Board’s remand decision, and he made the
necessary findings regarding the appellant’s disclosures concerning the RT. RID
at 6-13. Based upon our review, we find that the administrative judge correctly
found that the agency presented clear and convincing evidence that it would have
removed the appellant in the abs ence of his protected disclosures related to
DAPPS and the RT. Accordingly, we conclude that the appellant has shown no
basis upon which to disturb the remand initial decision.
NOTICE OF APPEAL RIGHTS 3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below d o not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
3
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matt er.
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immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ula r
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court (not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative re ceives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
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Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be ad dressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particula r
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.