Katherine L. Fleming v. Department of the Interior ( 2015 )


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  •                            UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    KATHERINE L. FLEMING,                           DOCKET NUMBER
    Appellant,                        AT-1221-11-0460-B-2
    v.
    DEPARTMENT OF THE INTERIOR,                     DATE: September 22, 2015
    Agency.
    THIS FINAL ORDER IS NONPRECEDENTIAL 1
    Katherine L. Fleming, Homestead, Florida, pro se.
    Vicki V. Mott, Esquire, Atlanta, Georgia, for the agency.
    BEFORE
    Susan Tsui Grundmann, Chairman
    Mark A. Robbins, Member
    FINAL ORDER
    ¶1         The appellant has filed a petition for review of the remand initial decision,
    which denied her request for corrective action in this individual right of action
    (IRA) appeal. Generally, we grant petitions such as this one only when: the
    remand initial decision contains erroneous findings of material fact; the remand
    initial decision is based on an erroneous interpretation of statute or regulation or
    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    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
    the erroneous application of the law to the facts of the case; the 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.        See 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, and based on the following points and authorities, 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. Except as expressly MODIFIED by this Final Order to find that the
    administrative judge took an overly restrictive view of the second factor set forth
    in Carr v. Social Security Administration, 
    185 F.3d 1318
    , 1323 (Fed. Cir. 1999),
    we AFFIRM the remand initial decision.
    BACKGROUND
    ¶2        Effective September 18, 2005, the agency appointed the appellant to a
    GS-11 Museum Curator position with the agency’s National Park Service,
    Everglades National Park (Everglades), for a term not to exceed October 17,
    2006, subject to her completion of a 1-year trial period. Fleming v. Department
    of the Interior, MSPB Docket No. AT-1221-11-0460-W-1, Initial Appeal File
    (IAF), Tab 5, Subtab 4A. Effective June 24, 2006, the agency terminated the
    appellant for unacceptable behavior and unsatisfactory performance.            
    Id., Subtabs 4B-4C.
    After exhausting her administrative remedies with the Office of
    Special Counsel, the appellant filed an IRA appeal and requested a hearing,
    alleging that her termination was in retaliation for her protected whistleblowing
    activity. IAF, Tab 1.
    ¶3        Without holding a hearing, the administrative judge issued an initial
    decision that dismissed the appeal for lack of jurisdiction. IAF, Tab 16, Initial
    3
    Decision. On review, the Board found that the appellant had met her burden of
    showing that the Board has jurisdiction over her IRA appeal.         Fleming v.
    Department of the Interior, MSPB Docket No. AT-1221-11-0460-W-1, Remand
    Order at 11 (Aug. 3, 2012) (W-1 Remand Order). Specifically, the Board found
    that the appellant’s February 6, 2006 disclosure to her second-level supervisor
    (who also was the deciding official in the termination action) that she and a
    coworker had been exposed to toxic chemicals in October 2005, while painting
    cannons at the Dry Tortugas National Park (Dry Tortugas), and that she had
    suffered injuries, constituted a nonfrivolous allegation of a substantial and
    specific danger to public health and safety. 
    Id. at 8-9;
    IAF, Tab 15, Subtab 4O.
    The Board further found that the appellant nonfrivolously alleged that this
    disclosure was a contributing factor in the agency’s decision to terminate her
    under the knowledge/timing test of 5 U.S.C. § 1221(e), because the disclosure
    predated the appellant’s termination letter by more than 4 months and the
    deciding official was clearly aware of the disclosure, as he was the recipient of
    the memorandum in which the disclosure was made.            W-1 Remand Order
    at 10-11. Therefore, the Board vacated the initial decision and remanded the
    appeal to the Atlanta Regional Office for a hearing and adjudication on the
    merits. 
    Id. at 11-12.
    ¶4        After a hearing on remand, the administrative judge issued a remand initial
    decision denying the appellant’s request for corrective action.      Fleming v.
    Department of the Interior, MSPB Docket No. AT-1221-11-0460-B-1, Remand
    File, Tab 16, Remand Initial Decision (B-1 RID).       The administrative judge
    found that the appellant failed to prove that she made a protected disclosure
    because her February 6, 2006 disclosure revealed information that the deciding
    official already knew. B-1 RID at 4. The administrative judge also found that,
    assuming arguendo that the disclosure was protected and was a contributing
    factor to the appellant’s termination, the agency proved by clear and convincing
    evidence that it would have terminated the appellant during her probationary
    4
    period even in the absence of the disclosure. B-1 RID at 4-6. In making this
    finding, the administrative judge noted that the appellant challenged her
    supervisor’s assertions regarding her performance and misconduct, but concluded
    that it was not necessary for him to consider whether the appellant’s supervisor’s
    criticisms of the appellant were correct because the issue in this appeal was the
    deciding official’s state of mind and whether he would have terminated the
    appellant in the absence of her alleged whistleblowing activity. B-1 RID at 5.
    ¶5        The Board granted the appellant’s petition for review, finding that, based
    upon the Whistleblower Protection Enhancement Act of 2012, the appellant’s
    February 6, 2006 disclosure was protected even though it revealed information
    that the deciding official already knew. Fleming v. Department of the Interior,
    MSPB Docket No. AT-1221-11-0460-B-1, Remand Order at 1, 4 (July 7, 2014)
    (B-1 Remand Order).       The Board also found that the administrative judge’s
    analysis of the clear and convincing evidence issue did not comply with the
    decision of the U.S. Court of Appeals for the Federal Circuit in Whitmore v.
    Department of Labor, 
    680 F.3d 1353
    (Fed. Cir. 2012). B-1 Remand Order at 6-7.
    The Federal Circuit in Whitmore held that “[e]vidence only clearly and
    convincingly supports a conclusion when it does so in the aggregate considering
    all the pertinent evidence in the record, and despite the evidence that fairly
    detracts from that conclusion.” 
    Whitmore, 680 F.3d at 1368
    . The court further
    determined that “[i]t is error for the [Board] to not evaluate all the pertinent
    evidence in determining whether an element of a claim or defense has been
    proven adequately.” 
    Id. ¶6 The
    Board found that, pursuant to Whitmore, the administrative judge was
    required to consider the appellant’s evidence and arguments that her supervisor’s
    assertions about her performance and conduct were unreasonable, as well as any
    other evidence that detracted from the agency’s claim that it terminated the
    appellant’s employment based only on her performance, including evidence
    pertaining to the existence and strength of a retaliatory motive by the agency.
    5
    B-1 Remand Order at 7. Accordingly, the Board remanded the appeal again for a
    new determination as to whether the agency proved that it would have terminated
    the appellant even in the absence of her protected whistleblowing activity. 
    Id. The Board
    directed the administrative judge to reconsider the record as a whole
    and make thoroughly-reasoned findings that address both the evidence
    supporting his conclusions and the countervailing evidence. 
    Id. ¶7 Following
    a hearing on remand, the administrative judge issued a remand
    initial decision on November 21, 2014, denying the appellant’s request for
    corrective action.    Fleming v. Department of the Interior, MSPB Docket No.
    AT-1221-11-0460-B-2, Remand File (B-2 RF), Tab 11, Remand Initial Decision
    (B-2 RID) at 1-2, 7.         The administrative judge found that the appellant
    established that she made a protected disclosure and that her protected disclosure
    was a contributing factor to her termination under the knowledge/timing test.
    B-2 RID at 3. The administrative judge further found, however, that the agency
    showed by clear and convincing evidence that it would have taken the same
    personnel action even in the absence of whistleblowing. B-2 RID at 6-7.
    ¶8         The appellant has filed a timely petition for review of the remand initial
    decision. 2 Remand Petition for Review (RPFR) File, Tab 1. The agency has not
    responded to the petition for review.
    2
    The appellant filed her petition for review on December 22, 2014. See Remand
    Petition for Review (RPFR) File, Tab 1. By notice dated January 5, 2015, the Office of
    the Clerk of the Board incorrectly informed the appellant that the initial decision was
    issued on October 21, 2014, and that her petition for review was untimely filed because
    it was not postmarked or received in the Clerk’s office on or before November 25,
    2014, the 35th day following the issuance of the initial decision. RPFR File, Tab 2 at 1
    (citing 5 C.F.R. § 1201.114(e)). As noted above, however, the remand initial decision
    was issued on November 21, 2014. B-2 RID at 1. Thus, we find that the appellant’s
    petition for review is timely. Given our determination that the petition for review was
    timely filed, we need not rule on the appellant’s motion to accept her petition for
    review as timely filed. RPFR File, Tab 3.
    6
    ANALYSIS
    ¶9        In an IRA appeal, after establishing the Board’s jurisdiction, the appellant
    then must establish a prima facie case of whistleblower retaliation by proving by
    preponderant evidence that he made a protected disclosure that was a
    contributing factor in a personnel action taken against him.             5 U.S.C.
    § 1221(e)(1); Mattil v. Department of State, 118 M.S.P.R. 662, ¶ 11 (2012). If
    the appellant meets that burden, the Board shall order such corrective action as it
    considers appropriate unless the agency shows by clear and convincing evidence
    that it would have taken the same personnel action in the absence of the
    protected disclosure. 5 U.S.C. § 1221(e)(1)-(2); Chambers v. Department of the
    Interior, 116 M.S.P.R. 17, ¶ 12 (2011). Clear and convincing evidence is that
    measure or degree of proof that produces in the mind of the trier of fact a firm
    belief as to the allegations sought to be established; it is a higher standard than
    the “preponderance of the evidence” standard.          Sutton v. Department of
    Justice, 94 M.S.P.R. 4, ¶ 18 (2003), aff’d, 97 F. App’x 322 (Fed. Cir. 2004); 5
    C.F.R. § 1209.4(d).
    ¶10       The sole issue before the Board on review is whether the agency met its
    burden of proving by clear and convincing evidence that it would have
    terminated the appellant even in the absence of her whistleblowing. See B-2 RF,
    Tab 5 at 3. In determining whether an agency has met this burden, the Board
    will consider the following factors: (1) the strength of the agency’s evidence in
    support of its action; (2) the existence and strength of any motive to retaliate on
    the part of agency officials who were involved in the decision; and (3) any
    evidence that the agency takes similar actions against employees who are not
    whistleblowers but who are otherwise similarly situated. 
    Carr, 185 F.3d at 1323
    .
    The Board does not view these factors as discrete elements, each of which the
    agency must prove by clear and convincing evidence. Rather, the Board will
    weigh the factors together to determine whether the evidence is clear and
    7
    convincing as a whole. Lu v. Department of Homeland Security, 122 M.S.P.R.
    335, ¶ 7 (2015).
    The strength of the agency evidence in support of the appellant’s termination.
    ¶11    Regarding the first Carr factor, the administrative judge found that the
    agency showed that it had valid reasons to terminate the appellant during her
    trial period. B-2 RID at 4. In making this finding, the administrative judge
    considered the hearing testimony of the appellant’s immediate supervisor and the
    deciding official regarding their reasons for terminating the appellant, as well as
    the appellant’s arguments pertaining to this factor.        B-2 RID at 4-5.      The
    administrative judge noted that the appellant’s supervisor testified that she had
    serious concerns regarding both the appellant’s performance and conduct. B-2
    RID at 4. In particular, she stated that the appellant did not listen to directions,
    was unwilling to communicate with her about the status of her work, argued with
    her, and failed to timely follow instructions. 
    Id. In his
    hearing testimony, as
    summarized in the remand initial decision, the deciding official stated that the
    appellant’s supervisor began coming to him with her concerns regarding the
    appellant almost immediately after she was hired, and that an experienced
    archivist at another national park who reviewed the appellant’s work at his
    request provided unfavorable feedback regarding her performance. B-2 RID at 5.
    The deciding official also testified that he decided to remove the appellant
    because her conduct and performance were unacceptable and threatened
    Everglades’ ability to meet its goals. B-2 RID at 6.
    ¶12    Turning to the appellant’s arguments regarding the first Carr factor, 3 the
    administrative judge noted that the appellant challenged her supervisor’s claims.
    B-2 RID at 4. More specifically, the administrative judge stated that, although
    the appellant acknowledged that she and her supervisor frequently discussed her
    3
    The remand initial decision does not indicate whether the administrative judge’s
    analysis of the appellant’s arguments was based on her hearing testimony, her written
    arguments, or both. See B-2 RID at 4.
    8
    supervisor’s dissatisfaction with her performance, she denied having willfully
    failed to follow her supervisor’s instructions.       
    Id. Rather, the
    appellant
    contended that her supervisor’s instructions were frequently unclear and
    contradictory, as she would tell the appellant to do one thing and then, later, tell
    her to do something entirely different. 
    Id. The appellant
    claimed that if she
    agreed with her supervisor, she was accused of condescension; however, if she
    disagreed, she was accused of insubordination. 
    Id. ¶13 The
    administrative judge found that the appellant’s supervisor had the right
    to have her instructions followed even if the appellant disagreed with them. B-2
    RID at 4-5.   The administrative judge did not explicitly find that the appellant
    failed to follow her supervisor’s instructions or make any explicit credibility
    determinations. However, in light of his conclusion that the agency showed that
    it had valid reasons to terminate the appellant, the administrative judge evidently
    credited the testimony of the appellant’s supervisor and implicitly found that the
    appellant failed to follow instructions. The appellant challenges this finding on
    review, reiterating her argument that her supervisor’s instructions were
    frequently unclear and contradictory. RPFR File, Tab 1 at 14. We find that this
    argument constitutes mere disagreement with the administrative judge’s implied
    finding that the appellant failed to follow instructions and, as such, provides no
    basis for disturbing the initial decision. See Broughton v. Department of Health
    & Human Services, 33 M.S.P.R. 357, 359 (1987).
    ¶14    The appellant also challenges the administrative judge’s implied credibility
    findings on review, alleging that agency witnesses displayed numerous
    inconsistencies, omissions, and misrepresentations in their testimony.       RPFR
    File, Tab 1 at 4. For example, the appellant alleges that her supervisor implied
    that photographs of waste cans were taken during the 2005 Dry Tortugas project;
    however, she claims they were actually taken at a later date. 
    Id. at 4-5.
    The
    appellant also asserts that her supervisor provided inconsistent statements
    regarding the solvent that was used on cannons during the Dry Tortugas project,
    9
    initially stating that toluene was used but subsequently testifying that xylene was
    used. 
    Id. at 5-6.
    We have reviewed the record and we discern no specific error
    with the administrative judge’s credibility determinations. The Board must give
    deference to an administrative judge’s credibility determinations when they are
    based, explicitly or implicitly, on the observation of the demeanor of witnesses
    testifying at a hearing, and may overturn such determinations only when it has
    “sufficiently sound” reasons for doing so.            Haebe v. Department of
    Justice, 
    288 F.3d 1288
    , 1301 (Fed. Cir. 2002). The alleged discrepancies cited
    by the appellant relate to minor matters and do not constitute sufficiently sound
    reasons to disturb the administrative judge’s implied credibility findings. See
    Hillen v. Department of the Army, 35 M.S.P.R. 453, 459 (1987) (determining that
    inconsistent statements do not necessarily render a witness’s testimony
    incredible).
    ¶15        Based on our review of the record, we find that the evidence in support of
    the appellant’s termination was very strong.          The agency’s reasons for
    terminating the appellant are supported by testimony as well as documentation
    showing that the agency’s concerns regarding the appellant’s conduct predated
    her protected disclosure of February 6, 2006.      In particular, as noted in the
    remand initial decision, the appellant’s supervisor first approached the deciding
    official regarding her concerns about the appellant’s conduct almost immediately
    after she was hired.   B-2 RID at 5; see IAF, Tab 15, Subtab 4M at 1.             By
    January 13, 2006, those concerns had escalated to the point that the appellant’s
    supervisor sent the deciding official a memorandum asking to terminate the
    appellant for misconduct.      IAF, Tab 15, Subtab 4L at 1-2.            With her
    memorandum, the appellant’s supervisor submitted a lengthy document detailing
    the appellant’s misconduct from early October until mid-January. 4 
    Id. at 3-13.
    4
    After discussions involving the deciding official and Everglades’ Deputy
    Superintendent, the appellant’s supervisor issued the appellant a proposed 3-day
    suspension on January 26, 2006, based on a charge of failure to follow supervisory
    10
    ¶16        Moreover, the deciding official did not rely solely on the opinions of the
    appellant’s supervisor in deciding to terminate the appellant. As noted in the
    remand initial decision, instead of simply accepting the appellant’s supervisor’s
    opinions regarding the appellant’s conduct and performance, the deciding official
    asked an experienced archivist at another national park to provide him with an
    opinion regarding the appellant’s performance, and those findings were adverse
    to the appellant.   B-2 RID at 6; see IAF, Tab 5, Subtab 4F (stating that the
    appellant was resistant to taking direction and imparting information). Notably,
    the archivist expressed concern that, in light of the appellant’s slow rate of
    progress on a project that she had been assigned, the project would not be
    completed and the Everglades would lose funding. IAF, Tab 5, Subtab 4F. The
    archivist’s written report strongly supports the agency’s decision to terminate the
    appellant.
    The existence and strength of any motive to retaliate on the part of agency
    officials who were involved in the decision.
    ¶17      Turning to the second Carr factor, the administrative judge found that the
    deciding official would have had no motive to retaliate against the appellant
    based upon her disclosure.      B-2 RID at 6.      In support of this finding, the
    administrative judge stated that, although the appellant’s supervisor and several
    employees working on the Dry Tortugas project were subordinates of the
    deciding official, neither the deciding official nor the appellant’s supervisor were
    responsible for the project. 
    Id. Rather, as
    the administrative judge correctly
    found, the person responsible for the project was not under the command or
    control of the Everglades. 
    Id. In Whitmore,
    however, the court cautioned the
    Board against taking an unduly dismissive and restrictive view of retaliatory
    motive, holding that “[t]hose responsible for the agency’s performance overall
    instructions, which was supported by seven specifications. See IAF, Tab 15, Subtab 4M
    at 1, Subtabs 4N, 4S. By memorandum dated April 26, 2006, the deciding official
    sustained four of the seven specifications and mitigated the proposed suspension to a
    2-day suspension. 
    Id., Subtab 4S.
                                                                                     11
    may well be motivated to retaliate even if they are not directly implicated by the
    disclosures, and even if they do not know the whistleblower personally, as the
    criticism reflects on them in their capacities as managers and employees.”
    
    Whitmore, 680 F.3d at 1370
    .
    ¶18    We find the administrative judge erred in taking an overly restrictive view
    of the second Carr factor. Although neither the deciding official nor the
    appellant’s supervisor was directly implicated in the appellant’s disclosure, it
    arguably reflected poorly on them in their capacity as managers, which is
    sufficient to establish a retaliatory motive. See Chambers, 116 M.S.P.R. 17, ¶ 69
    (finding motive to retaliate because the appellant’s disclosures reflected on the
    responsible agency officials as representatives of the general institutional
    interests of the agency). Thus, we find that there may have been some motive to
    retaliate against the appellant for her protected disclosure.
    Evidence that the agency takes similar actions against employees who are not
    whistleblowers but who are otherwise similarly situated.
    ¶19    Regarding the third Carr factor, there is no evidence indicating that any
    nonwhistleblowing comparator employees were treated differently than the
    appellant. Therefore, this is not a significant factor for the Board’s analysis in
    the instant appeal. See 
    Whitmore, 680 F.3d at 1374
    (noting that the agency is not
    required to submit evidence as to each Carr factor, and recognizing that the
    absence of evidence relating to the third Carr factor “can effectively remove that
    factor from the analysis”).
    ¶20    Weighing the two remaining Carr factors against one another, we agree
    with the administrative judge that the agency has met its burden of showing by
    clear and convincing evidence that it would have terminated the appellant absent
    her protected disclosure. See B-2 RID at 6-7. Although the agency officials
    involved in the termination decision had some motive to retaliate, the agency had
    a very strong basis to terminate the appellant because of her misconduct and poor
    12
    performance.       Therefore, we conclude that the administrative judge properly
    denied the appellant’s request for corrective action. B-2 RID at 2, 7.
    NOTICE TO THE APPELLANT REGARDING
    YOUR FURTHER REVIEW RIGHTS
    The initial decision, as supplemented by this Final Order, constitutes the
    Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
    request review of this final decision by the United States Court of Appeals for the
    Federal Circuit.
    The court must receive your request for review no later than 60 calendar
    days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
    27, 2012). If you choose to file, be very careful to file on time. The court has
    held that normally it does not have the authority to waive this statutory deadline
    and that filings that do not comply with the deadline must be dismissed. See
    Pinat v. Office of Personnel Management, 
    931 F.2d 1544
    (Fed. Cir. 1991).
    If you want to request review of the Board’s decision concerning your
    claims    of   prohibited   personnel   practices   under   5   U.S.C.   § 2302(b)(8),
    (b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
    the Board’s disposition of any other claims of prohibited personnel practices, you
    may request review of this final decision by the United States Court of Appeals
    for the Federal Circuit or any court of appeals of competent jurisdiction. The
    court of appeals must receive your petition for review within 60 days after the
    date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
    you choose to file, be very careful to file on time. You may choose to request
    review of the Board’s decision in the United States Court of Appeals for the
    Federal Circuit or any other court of appeals of competent jurisdiction, but not
    both.    Once you choose to seek review in one court of appeals, you may be
    precluded from seeking review in any other court.
    If you need further information about your right to appeal this decision to
    court, you should refer to the Federal law that gives you this right. It is found in
    13
    Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
    Dec. 27, 2012). You may read this law as well as other sections of the United
    States   Code,     at   our     website,   http://www.mspb.gov/appeals/uscode.htm.
    Additional information about the United States Court of Appeals for the Federal
    Circuit is available at the court's website, www.cafc.uscourts.gov. Of particular
    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, and 11.
    Additional information about other courts of appeals can be found at their
    respective          websites,          which          can        be        accessed
    through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
    If you are interested in securing pro bono representation for an appeal to the
    United States 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 Merit Systems Protection Board neither endorses the services
    provided by any attorney nor warrants that any attorney will accept representation
    in a given case.
    FOR THE BOARD:                              ______________________________
    William D. Spencer
    Clerk of the Board
    Washington, D.C.