James v. Coulter, III v. Department of the Navy ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES V. COULTER, III, DOCKET NUMBER
Appellant, SF-1221-12-0271-B-2
v.
DEPARTMENT OF THE NAVY, DATE: June 15, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL *
James V. Coulter, III, East Lansing, Michigan, pro se.
Jere Diersing, and Jessica Langley-DeGroot, San Diego, California, 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 his request for corrective action in his 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
*
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
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 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 and AFFIRM
the remand initial decision except as expressly MODIFIED by this Final Order.
Specifically, we find that the administrative judge mistakenly failed to address
two of the appellant’s disclosures, and we find that both disclosures are protected
but that the appellant failed to establish that they were a contributing factor in a
personnel action. We DENY the appellant’s request for corrective action as to
these two disclosures.
¶2 The agency terminated the appellant from his position during his
probationary period for alleged unacceptable performance. Coulter v.
Department of the Navy, MSPB Docket No. SF-1221-12-0271-W-1, Initial Appeal
File (IAF), Tab 9 at 14-16. The appellant filed an appeal in which he contended
that the termination constituted reprisal for whistleblowing. IAF, Tab 1 at 7-14.
After a hearing, the administrative judge denied the appellant’s request for
corrective action. IAF, Tab 31, Initial Decision (ID). The administrative judge
found that four of the appellant’s disclosures (those in which he reported safety
concerns) were not protected under Huffman v. Office of Personnel Management,
263 F.3d 1341 (Fed. Cir. 2001), superseded by statute, Whistleblower Protection
Enhancement Act of 2012, Pub. L. No. 112-199, 126 Stat. 1465, as recognized in
Natsuti v. Merit Systems Protection Board, 504 F. App’x 894 (Fed. Cir. 2013),
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because they were made through the chain of command in the normal
performance of his duties. ID at 6-10. The appellant petitioned for review, and
the Board vacated the initial decision and remanded the appeal because the
administrative judge’s reasoning was no longer tenable after the Board’s issuance
of Day v. Department of Homeland Security, 119 M.S.P.R. 589 (2013). See
Coulter v. Department of the Navy, MSPB Docket No. SF-1221-12-0271-W-1,
Remand Order (Aug. 21, 2013) (Remand Order).
¶3 On remand, the appellant indicated that he did not want a supplemental
hearing, and the administrative judge accepted documentary evidence and
argument into the record. Coulter v. Department of the Navy, MSPB Docket No.
SF-1221-12-0271-B-1, Remand File, Tabs 3-5. After considering the parties’
submissions, the administrative judge found that the appellant failed to show that
one of his disclosures was protected. Coulter v. Department of the Navy, MSPB
Docket No. SF-1221-12-0271-B-2, Remand Initial Decision (RID) at 5-6
(Dec. 10, 2014). She further found that the remaining disclosures were protected
but the appellant did not show that they were a contributing factor in a personnel
action. RID at 5, 7-11. She found that, even if the appellant had shown
contributing factor, the agency showed by clear and convincing evidence that it
would have taken the same action absent any disclosures. RID at 11-17.
Five of the appellant’s six disclosures are protected.
¶4 In order to establish a prima facie case under the Whistleblower Protection
Act (WPA), the appellant must prove by preponderant evidence that he made a
protected disclosure and that the disclosure was a contributing factor in a
personnel action. McCarthy v. International Boundary and Water Commission,
116 M.S.P.R. 594, ¶ 29 (2011), aff’d, 497 F. App’x 4 (Fed. Cir. 2012), cert.
denied, 134 S. Ct. 386 (2013). A protected disclosure is a disclosure that an
appellant reasonably believes evidences, as relevant here, a violation of law, rule,
or regulation, or a substantial and specific danger to public health or safety. Id.,
¶ 34.
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¶5 The appellant originally raised six disclosures in his IRA appeal, four
concerning safety issues, one concerning overtime (disclosure 5) and another
about wasting time (disclosure 6). IAF, Tab 22 at 4. The administrative judge
adjudicated all six disclosures during the initial proceeding and implicitly found
that disclosures 5 and 6 were protected and that the appellant failed to establish
that they were a contributing factor in a personnel action. See ID at 12-14. The
appellant petitioned for review and, because the administrative judge’s analysis
was no longer viable because of Day, 119 M.S.P.R. 589, the Board was able to
resolve the petition for review without any discussion of the content of the
disclosures. See Remand Order at 2-3. For the sake of simplicity, the Board
referred to the disclosures collectively as “safety disclosures” even though
disclosures 5 and 6 were unrelated to safety.
¶6 It appears that the administrative judge interpreted the remand order to
require her to adjudicate only those four disclosures relating to safety. Because
our remand order vacated the initial decision, the administrative judge’s findings
concerning disclosures 5 and 6 were voided. The result of this confusion is that
the appellant does not have a Board ruling on that portion of his appeal dealing
with disclosures 5 and 6.
¶7 Although the appellant does not explicitly allege on review that the
administrative judge erred by not considering those disclosures, we find that he
did not intend to abandon those disclosures because he mentions throughout the
proceedings on remand that there were six disclosures. See, e.g., MSPB Docket
No. SF-1221-12-0271-B-2, Refiled Remand File (B-2 File), Tab 5 at 4, 7.
Because there already has been a hearing at which the appellant presented
evidence and argument concerning disclosures 5 and 6, we find that the record is
fully developed as to these disclosures and that it is appropriate for us to resolve
them without a remand. Moreover, we agree with the administrative judge that
the appellant has established that disclosures 1-3 were protected and we further
find that disclosures 5 and 6 were protected as well.
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¶8 However, the administrative judge found that the appellant’s fourth
disclosure, concerning wooden pallets on a sidewalk, was not protected. On the
day in question, the appellant’s supervisor directed the appellant to place wooden
pallets over a flooded sidewalk so pedestrians could use the sidewalk without
having to walk in standing water. The appellant refused to place the pallets
because, from his point of view, the pallets themselves were a safety risk. He
contends that, by refusing to obey instructions to place the pallets and reporting
the matter to higher-level management, he disclosed a serious safety issue. B-2
File, Tab 3 at 5, Tab 5 at 5-6; Coulter v. Department of the Navy, MSPB Docket
No. SF-1221-12-0271-B-2, Petition for Review (PFR) File, Tab 1 at 8-11. The
administrative judge found that the appellant failed to show that he had a
reasonable belief that the pallets posed a substantial and specific danger to public
health or safety. RID at 5-6.
¶9 Disclosures regarding danger to the public health or safety must be both
substantial and specific to be protected. Miller v. Department of Homeland
Security, 111 M.S.P.R. 312, ¶ 6 (2009). A disclosure of a speculative danger
does not meet this test. Id. Factors to be considered in determining whether a
disclosed danger is sufficiently substantial and specific to be protected include
whether a substantial, specific harm was identified and whether the evidence
supported a finding that the harm already had been realized or was likely to result
in the reasonably foreseeable future. Chambers v. Department of the Interior,
602 F.3d 1370, 1376 (Fed. Cir. 2010).
¶10 The appellant alleges on review that the administrative judge improperly
discounted the risk posed by the pallets and overemphasized the fact that it was
temporary. PFR File, Tab 1 at 8-11. He avers the agency had better options for
mitigating the hazard posed by the standing water. The Board’s role is not to
decide whether the agency made the best choice, but whether a reasonable person
in the appellant’s position would believe, not merely that the matter was a safety
hazard, but that it posed a substantial and specific risk to public health or safety.
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See Swanson v. General Services Administration, 110 M.S.P.R. 278, ¶ 10 (2008)
(the reasonable belief test is an objective test; the appellant must show that a
disinterested observer with knowledge of the essential facts known to and readily
ascertainable by the appellant, could reasonably conclude that that actions of the
agency evidenced one of the categories on wrongdoing covered under the WPA).
¶11 In Chambers, the Federal Circuit found that the appellant disclosed a
substantial and specific danger to public health or safety when she disclosed that
a reduction in the number of police officers available resulted in more traffic
accidents because the risk was specific, i.e., an increase in traffic accidents, and
substantial rather than speculative because the risk had already occurred.
Chambers, 602 F.3d at 1379. Similarly, in Aquino v. Department of Homeland
Security, 121 M.S.P.R. 35 (2014), and Miller, the appellants disclosed that
changes in airport screening and crowd management procedures led to a greater
risk of a breach of security. The Board found that these disclosures were
substantial and specific because the consequences of the risks identified in the
disclosures could result in devastating and obvious harm. Aquino, 121 M.S.P.R.
35, ¶¶ 14-17; Miller, 111 M.S.P.R. 312, ¶¶ 15-19. Here, however, the appellant
has presented no evidence as to whether the risk of falling on the pallets was
substantial and specific; he merely relies on the common sense proposition that
sometimes people fall and sometimes falls are serious. At best, therefore, the
appellant has identified a potential future danger to public safety that has not
been shown to be substantial, that could possibly lead to an injury that may or not
be serious, and that was intended to be (and actually was) a temporary
remediation of a more serious safety hazard. Consequently, the administrative
judge correctly found that the appellant’s fourth disclosure was not protected.
The appellant did not establish that his protected disclosures were a contributing
factor in his termination.
¶12 When reviewing the merits of an IRA appeal, the Board considers whether
the appellant has shown by preponderant evidence that he made a protected
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disclosure that was a contributing factor in an agency’s personnel action. Aquino,
121 M.S.P.R. 35, ¶ 10. A protected disclosure is a contributing factor if it affects
an agency’s decision to take a personnel action in any way. Dorney v.
Department of the Army, 117 M.S.P.R. 480, ¶ 14 (2012). An employee can
demonstrate that a disclosure was a contributing factor through circumstantial
evidence, such as evidence that the official taking the personnel action knew of
the disclosure and that the personnel action occurred within a period of time such
that a reasonable person could conclude that the disclosure was a contributing
factor in the personnel action. Id. An appellant also can show that a protected
disclosure was a contributing factor in a personnel action by proving that the
official taking the action had constructive knowledge of the protected disclosure.
Id., ¶ 11. An appellant may establish constructive knowledge by demonstrating
that an individual with actual knowledge of the disclosure influenced the official
accused of taking the retaliatory action. Id.¶13 Here, the appellant alleges that the deciding official had constructive
knowledge of his three safety disclosures, one concerning a violation of lock-out-
tag-out procedures, the second concerning a door that did not latch properly, and
the third concerning an exposed steam vent pipe. He contends that the managers
to whom he made his disclosures would have informed the deciding official about
them during one or more of the regular management meetin gs. B-2 File, Tab 3
at 8. He also argues that the nature of the deciding official’s position “mandates
that he know these things.” PFR File, Tab 1 at 8. There is no dispute that the
deciding official knew that someone had reported the safety issues the appellant
disclosed, but there is no evidence either that he knew who made the disclosures
or that he was aware of disclosures 5 and 6. See IAF, Tab 21 at 6-9.
¶14 The appellant asserts on review that the deciding official had a duty to find
out who made the disclosures and thus, he must have known it was the appellant
who made the disclosures at issue here. PFR File, Tab 1 at 6-7. He offers no
support for his belief that the deciding official had a duty to find out who made
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the disclosures. It is unlikely under the circumstances of this case that the
deciding official would inquire into who made the disclosures because all three
protected disclosures involved long-term and well-known issues that others had
reported before the appellant. The lock-out tag-out problem was a recurring issue
amounting to contractor negligence in safely securing an incomplete electrical
project to prevent potential electrocution to passersby or fire risk to the building
in general. The appellant’s report concerned a particular incident that perhaps
had not been reported before, but the agency’s contractors frequently fell short of
safety standards. Hearing Compact Disc (HCD) 1 (testimony of M.M.). Upon
receiving a report that they had yet again violated lock-out tag-out procedures, it
seems likely that the deciding official would put his emphasis on getting the
contractors to comply rather than on finding out who reported the problem.
¶15 Similarly, the problem with the door also was a known issue dating to the
original installation of the door and the safety hazard was caused by a design
flaw. The building, however, was designated an historical building and the
agency had to get state approval to make the changes that would have fixed the
problem, which remains unresolved. HCD 2 (testimony of H.S.); IAF, Tab 21
at 8. The steam vent pipe also was a known issue and the agency frequently
addressed the issue with temporary insulation that unfortunately did not last very
long. HCD 2 (testimony of W.M., testimony of H.S.). However, the building was
undergoing a major renovation that would include fixing the problem with the
steam pipe, so less-than-ideal temporary remedies seem appropriate under the
circumstances. Although the underlying safety issues were quite serious, none of
the appellant’s disclosures were a surprise or had any qualities that would make
them stand out in a crowd of other similar disclosures, and there is no reason why
the appellant’s reports would have attracted particular hostile attention. It also
makes sense that the appellant’s supervisor would simply tell the deciding
official, for example, that there has been another lock-out tag-out issue without
thinking to identify the employee who reported the problem.
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¶16 The appellant further contends that the administrative judge should not have
credited the testimony of “the two accused,” i.e., the hearing testimony of his
supervisor and the sworn declaration of the deciding official (who was unable to
testify for medical reasons), that the supervisor never identified the appellant as
the source of the disclosures and the deciding official was unaware that the
appellant was the source of the disclosures. PFR File, Tab 1 at 5-12. He
contends that this evidence was self-serving and not supported by any
documentation, which he believes the agency should have created as a matter of
routine to document conversations, meetings, and incidents as they occur
throughout every work day. Id. The appellant has identified no law, rule, or
regulation to support his belief that such documentation is required. Moreover,
the agency is not required to prove it had no knowledge of the appellant’s
whistleblowing; the appellant has the burden of proving that the agency did have
knowledge, or constructive knowledge. If management’s testimony was
self-serving and not supported by written documentation, then the appellant’s
testimony was equally so. We find that the administrative judge correctly
determined that the appellant simply did not meet his burden of proof.
The administrative judge did not abuse her discretion by considering evidence
submitted for the first time on remand.
¶17 On remand, when the administrative judge reopened the record for further
evidence and argument, the agency submitted the sworn declaration affidavit of
the Deputy Public Works Officer concerning events during the relevant time
period. B-2 File, Tab 4. Neither party had previously identified this person as a
witness prior to the remand. It is not entirely clear whether the witness was in the
appellant’s direct chain of command, but it is clear that he discussed the
appellant’s future termination with the deciding official. The administrative
judge briefly discussed the declaration in the remand initial decision.
¶18 The appellant argues that only the content that purportedly supports his
theory of the case should be considered. B-2 File, Tab 5 at 10; PFR File, Tab 1
10
at 11. In other words, the Board should discredit the witness’s discussion of the
safety issues that the appellant disclosed, and should disregard his statement that
he did not know the source of the disclosures, but the Board should consider the
declaration to the extent that it shows that management discussed the safety
issues amongst themselves, which the appellant asserts proves constructive
knowledge.
¶19 The information in the declaration is largely duplicative of information
already in the record and it does not introduce any new issues. Moreover, it was
either proper for the administrative judge to consider the declaration or it was not.
There is no basis to exclude the declaration except for the parts that the appellant
thinks are favorable to him. We find that the declaration is not material to the
outcome of this case and that the administrative judge did not abuse her discretion
by considering it.
¶20 As noted above, the appellant asserts that the declaration proves that the
witness and the deciding official discussed the appellant’s disclosures and
buttresses his argument that the deciding official had constructive knowledge.
PFR File, Tab 1 at 11. This is incorrect. The declaration shows that they talked
about the appellant’s performance and conduct, not that they talked about his
disclosures or that they identified the disclosures with him. B-2 File, Tab 4 at 14.
Therefore, as with disclosures 1-3, we find that the appellant failed to show that
the deciding official had constructive knowledge of disclosures 5 and 6.
¶21 Finally, the administrative judge made the alternative finding that, even
assuming that the appellant established that he made a protected disclosure that
was a contributing factor in a personnel action, the agency established by clear
and convincing evidence that it would have terminated the appellant during his
probationary period even absent any whistleblowing. RID at 11-17. The
appellant alleges on review that the administrative judge’s alternative finding is
incorrect and he presents a fairly extensive discussion of his view of the merits of
the termination. PFR File, Tab 1 at 12-20. Because we find that the appellant
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failed to make a prima facie case of whistleblower reprisal, the administrative
judge’s findings are not necessary to the resolution of this appeal and she need
not have reached the issue. Thus, the Board has not considered the appellant’s
arguments in this regard.
NOTICE TO THE APPELLANT REGARDING
YOU R 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 the United States Court of Appeals for the Federal Circuit to review this
final decision.
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.
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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
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.