Samuel Jordan v. Department of the Interior ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SAMUEL JORDAN, DOCKET NUMBER
Appellant, DC-1221-14-0224-W-1
v.
DEPARTMENT OF THE INTERIOR, DATE: April 7, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Samuel Jordan, Washington, D.C., pro se.
Josh C. Hildreth, Washington, D.C., 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 initial decision, which
denied his request for corrective action in an individual right of action (IRA)
appeal. Generally, we grant petitions such as this one only when: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the 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 initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
BACKGROUND
¶2 The appellant was formerly employed as an Equal Employment Manager
with the agency’s National Park Service, Office of Equal Opportunity Programs
(OEOP), until his employment was terminated, effective July 23, 2012, after the
agency discovered that he had been improperly selected for the position. 2 Initial
Appeal File (IAF), Tab 1 at 3, Tab 12 at 5. He filed an appeal with the Board
alleging that his employment was terminated in retaliation for his protected
disclosures. IAF, Tab 1 at 1. Specifically, he alleged that he made the following
disclosures: (1) he disclosed to the OEOP Chief that her unilateral modifications
of an information technology (IT) contract were violations of contract law and
2
The appellant was hired under a merit promotion certificate of eligibles. Initial
Appeal File (IAF), Tab 8 at 16, Tab 9 at 5-12. After he entered on duty, the agency
discovered that he was not eligible for reinstatement and had been erroneously referred
and selected for the position. IAF, Tab 8 at 16-18, 37-38. As a result, the agency
placed him under a temporary critical appointment while it re-advertised the position
under delegated examining procedures to allow the appellant to reapply. Id. at 30-40.
According to the agency, the appellant’s application for the re-advertised position was
not received by the deadline, and it declined to reopen the advertisement again because
of the number of preference eligibles already on the certificate. Id. at 17; IAF, Tab 33
at 4-12.
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Federal regulations; and (2) he disclosed to the OEOP Chief, an Associate
Director, and a contractor various concerns he had regarding the “Jappa” project
and contract being “ill-advised” and not in accordance with contract law,
regulations, ethics, or sound management practices. Id. at 4; IAF, Tab 4 at 4-5.
¶3 After finding Board jurisdiction and holding a hearing, the administrative
judge issued an initial decision finding that the appellant failed to prove by
preponderant evidence that his disclosures were protected, and, even assuming
that his disclosures were protected, he failed to show that any disclosure was a
contributing factor in the agency’s decision to terminate his employment. IAF,
Tab 35, Initial Decision (ID) at 18-25.
¶4 The appellant has filed a petition for review of the initial decision in which
he asserts that the administrative judge erred in finding that he failed to prove
that he made a protected disclosure or that his disclosures were a contributing
factor in his termination. 3 Petition for Review (PFR) File, Tab 4 at 12, 15-16.
The appellant also asserts that the administrative judge abused his discretion by
making arbitrary rulings on the admissibility of witnesses and evidence. 4 Id.3
The appellant’s petition for review was filed 2 days after the deadline established by
the Clerk of the Board, Petition for Review (PFR) File, Tabs 2-3, but he asserts that
problems with the Board’s e-Appeal online system prevented him from filing it in a
timely fashion, PFR File, Tab 4 at 3-4. Because the Board’s e-Appeal logs confirm that
the appellant attempted to file his petition prior to the deadline, but experienced
problems, we find that there was good cause for the untimely filing of the petition for
review. See 5 C.F.R. §§ 1201.113(d), 1201.114(f).
4
The appellant has also filed a motion for leave to file an additional pleading to submit
new documents he received from the agency on August 19, 2015, through a Freedom of
Information Act (FOIA) request, which he contends establish that he made a protected
disclosure. PFR File, Tab 7 at 4. The appellant has failed to sufficiently explain the
nature of these documents, how this alleged new evidence changes the outcome of his
appeal, or why he could not have submitted such documents with his petition for
review. See 5 C.F.R. § 1201.114(a)(5). Accordingly, the appellant’s motion is denied.
4
at 5‑11, 13. The agency has filed an untimely response to the appellant’s
petition. 5
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly determined that the appellant failed to prove
that he made a protected disclosure.
¶5 To prevail on a claim under the Whistleblower Protection Act of 1989, 6 an
appellant must prove by preponderant evidence that he made a protected
disclosure and that such disclosure was a contributing factor in an agency
personnel action; if so, the Board must order corrective action unless the agency
established by clear and convincing evidence that it would have taken the same
personnel action in the absence of the disclosure. Chavez v. Department of
Veterans Affairs, 120 M.S.P.R. 285, ¶ 17 (2013).
¶6 An individual making a disclosure may be protected from retaliation for
whistleblowing based on his reasonable belief that his disclosure evidenced one
or more of the categories of wrongdoing listed in 5 U.S.C. § 2302(b)(8), even
when his belief is mistaken. See Drake v. Agency for International Development,
543 F.3d 1377, 1382 (Fed. Cir. 2008). The test for determining whether an
employee’s belief regarding the disclosed matter is reasonable is whether a
disinterested observer with knowledge of the essential facts known to and readily
5
The agency’s response was due on October 14, 2015. PFR File, Tab 5. On
November 3, 2015, the agency filed its response accompanied by a motion to waive the
filing deadline in which the agency’s representative asserts that he misread the Board’s
order. PFR File, Tab 12 at 4-5. The Board will waive the filing deadline for an
untimely response to a petition for review only for good cause. Jones v. U.S. Postal
Service, 110 M.S.P.R. 674, ¶ 5 n.2 (2009). To establish good cause for an untimely
filing, a party must show that he exercised due diligence or ordinary prudence under the
particular circumstances of the case. Id. We find that the agency has failed to show
that it exercised due diligence under the particular circumstances of the case.
Consequently, we have not considered the agency’s response, which was untimely by
20 days.
6
All of the relevant events occurred prior to the December 27, 2012 effective date of
the Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112-199, 126 Stat.
1465.
5
ascertainable by the employee could reasonably conclude that the actions of the
agency evidence the wrongdoing disclosed. Lachance v. White, 174 F.3d 1378,
1381 (Fed. Cir. 1999).
¶7 The administrative judge summarized the appellant’s testimony at the
hearing regarding his first alleged disclosure as follows. On May 25, 2012, the
OEOP Chief held a staff meeting in which she announced that some office
equipment appeared to have been vandalized. ID at 9. An IT contractor present
at the meeting indicated that he may have accidentally moved the office
equipment while working on an employee’s computer. Id. As a result, the OEOP
Chief instructed the contractor that, in the future, he should notify employees in
advance of accessing their computers and have them present and that he could no
longer access her computer system because he had compromised and breached
sensitive Federal data. ID at 9‑10. The appellant regarded such statements as
“unilateral modifications” to a Government contract and alleged that he then
disclosed to the OEOP Chief during the meeting that it was not proper in terms of
normal contractual relations to make such unilateral modifications to an
agreement. ID at 10.
¶8 The administrative judge found that the appellant failed to prove that a
reasonable person in his position would have regarded the restrictions the OEOP
Chief implemented regarding the contractor’s computer access as a contractual
violation. ID at 19. The administrative judge also noted that the appellant
testified that at the time of his disclosure he had not seen a copy of the contract
that he asserted the Chief was violating, the appellant did not introduce a copy of
the contract, and he did not explain how such restrictions violated any specific
term or provision of the contract. Id. Further, the appellant testified that he
subsequently reviewed the contract and found there was no provision addressing
the issue of the contractor’s level of computer access. ID at 10 n.12.
¶9 On review, the appellant argues that the administrative judge erred in
requiring him to have read the specific contract at issue and to have been familiar
6
with its explicit language. PFR File, Tab 4 at 15. He asserts that most contracts
include a standard provision specifying that the agreement may be modified only
in writing with the parties’ consent, and based on his knowledge of this fact he
reasonably believed that a unilateral modification of the contract was a violation
of law, rule, or regulation. Id. at 16. We agree with the appellant that the fact
that he had not seen the contract at the time of his disclosure is not dispositive;
however, we nonetheless find that he did not prove by preponderant evidence that
a reasonable person would have concluded that the OEOP Chief’s actions were an
attempt to modify a Government contract or that her actions were a violation of
any law, rule, or regulation.
¶10 The appellant’s second disclosure relates to the “Jappa” contract for a
team‑building project in which a contractor was to conduct one-on-one
interviews with OEOP employees to discuss their feelings and observations of the
office. ID at 12; IAF, Tab 4 at 8. As the administrative judge summarized, the
appellant expressed the following concerns to the OEOP Chief, the Associate
Director, and the contractor: (1) one-on-one interviews could not be conducted
without approval by the General Counsel; (2) employees would not be guaranteed
confidentiality; (3) employees did not have the ability to opt out of the
discussions; (4) the information obtained from the project would not be shared
with all of the employees; (5) the contract lacked validation for its methodology
and did not require evaluations from participating staff, declare a standard or
measure by which its effectiveness would be assessed, or provide a date by which
a final report would be submitted by the contractor; and (6) the project appeared
to be an attempt to find out who wrote an anonymous letter to high-level agency
officials complaining about the OEOP Chief’s management practices. ID at 7-8,
12-13, 20-21.
¶11 The administrative judge found that the appellant failed to prove that such
disclosures were protected because he had not seen the contract and did not
otherwise provide any authority or evidentiary support for his assertions that the
7
contract was somehow unethical or illegal, which appeared to have been based on
speculation. ID at 20-21. On review, the appellant asserts that the administrative
judge erred in requiring him to have seen the contract and failed to inquire as to
the reasonableness of his belief. PFR File, Tab 4 at 15-16. To that end, he
contends that he reasonably believed that the “missing features and notifications”
were indicative of gross mismanagement, a gross waste of funds, and an abuse of
authority. Id. at 16. As the administrative judge found, the appellant did not
identify any law, rule, or regulation he contends the project violated. ID
at 20‑21. Nor does the record contain any basis from which to discern that a
reasonable person would have believed that the project violated Government
contracting principles. Thus, we find that the appellant did not show that he
reasonably believed that he disclosed a violation of law, rule, or regulation.
¶12 Similarly, the appellant has not established that a reasonable person would
have believed that this project constituted gross mismanagement, a gross waste of
funds, or an abuse of authority. See, e.g., Baldwin v. Department of Veterans
Affairs, 113 M.S.P.R. 469, ¶ 15 (2010) (defining an abuse of authority as an
arbitrary or capricious exercise of power by a Federal official or employee that
adversely affects the rights of any person or that results in personal gain or
advantage to himself or to preferred other persons); Swanson v. General Services
Administration, 110 M.S.P.R. 278, ¶ 11 (2008) (defining gross mismanagement as
creating a substantial risk of significant adverse impact upon the agency’s ability
to accomplish its mission); Van Ee v. Environmental Protection Agency,
64 M.S.P.R. 693, 698 (1994) (defining a gross waste of funds as an expenditure
significantly out of proportion to the benefit reasonably expected to accrue).
Accordingly, we agree with the administrative judge that the appellant failed to
prove by preponderant evidence that he made a protected disclosure. 7
7
In light of our finding, we need not consider the appellant’s arguments concerning the
administrative judge’s finding that he failed to establish that any alleged disclosure was
a contributing factor in his termination. PFR File, Tab 4 at 13-15, 18-20.
8
The administrative judge did not abuse his discretion in his rulings on discovery,
admissibility of evidence, or witnesses approved to testify at the hearing.
¶13 The appellant argues that the administrative judge improperly denied his
request to call the OEOP Chief as a witness because her testimony would have
established her role in the personnel actions that led to his termination and
revealed the extent to which his protected disclosures were contributing factors in
her decision to terminate his employment. 8 PFR File, Tab 4 at 5-6. The
administrative judge denied this witness because the appellant had not contacted
or deposed her, had not obtained any relevant information relating to her
testimony through requests for interrogatories or admissions, and the appellant
acknowledged that he did not know what her testimony would be. IAF, Tab 31
at 3. Nonetheless, the administrative judge informed the appellant that, if he felt
that this witness was relevant or necessary to corroborate a disputed fact at the
conclusion of the presentation of evidence at the hearing, he could make a request
for reconsideration. Id. at 3 n.3. At the conclusion of the hearing, the appellant
did not request reconsideration of the ruling. ID at 4 n.3.
¶14 It is well settled that an administrative judge has broad discretion to control
the course of the hearing before him. Lopes v. Department of the Navy,
119 M.S.P.R. 106, ¶ 9 (2012). Rulings regarding the exclusion of evidence are
8
The appellant appears to contend that the OEOP Chief was involved in the decision
not to reopen the re-advertised position after his application was not received by the
deadline. PFR File, Tab 4 at 6. However, the administrative judge credited the
testimony of the Chief of Human Resources Operations that she unilaterally decided not
to reopen the position due to the number of preference eligibles on the certificate of
eligibles, all of whom had hiring preference over the appellant. ID at 23. The Chief of
Human Resources Operations also specifically testified that the OEOP Chief did not
instruct or influence her to make the decision. IAF, Tab 34, Hearing Compact Disc at
3:23, 2:58. The appellant contends that the OEOP Chief had a motive to retaliate
against him because she was forced to retire on October 30, 2014, due to an Inspector
General (IG) investigation, commenced following his October 24, 2013 FOIA request,
which found irregularities in the Jappa contract. PFR File, Tab 4 at 6-7; IAF, Tab 4
at 12, Tab 24 at 2. These alleged events occurred after the appellant’s termination and
he acknowledges that he was unable to obtain corroboration of the results of the IG
investigation. PFR File, Tab 4 at 7.
9
subject to review by the Board under an abuse of discretion standard. Id., ¶ 11.
We find no abuse of discretion in the administrative judge’s denial of the
appellant’s witness based on his failure to discuss her anticipated testimony in
advance. Without talking to the witness, the appellant could not confirm the
accuracy of his proffers. See Franco v. U.S. Postal Service, 27 M.S.P.R. 322, 325
(1985) (finding that an administrative judge has wide discretion to exclude
witnesses where it has not been shown that their testimony would be relevant,
material, and nonrepetitious). Even assuming that the administrative judge
improperly denied this witness, we find that the appellant’s rights were not
prejudiced because such testimony would not have resulted in a different outcome
in light of our finding that the appellant failed to establish that he made a
protected disclosure. See Sanders v. Social Security Administration,
114 M.S.P.R. 487, ¶ 10 (2010) (stating that, to obtain reversal of an initial
decision on the ground that the administrative judge abused his discretion in
excluding evidence, the petitioning party must show on review that relevant
evidence, which could have affected the outcome, was disallowed).
¶15 Next, the appellant argues that the administrative judge was biased against
him, as evidenced by his allowing the agency to supplement its prehearing
submissions to include an additional exhibit after the prehearing conference, but
not allowing the appellant to conduct discovery within 1 week of the hearing.
PFR File, Tab 4 at 7. However, this bare assertion does not establish a
deep‑seated antagonism towards the appellant that would make fair judgment
impossible and does not overcome the presumption of honesty and integrity
accorded to administrative judges. See Bieber v. Department of the Army,
287 F.3d 1358, 1362-63 (Fed. Cir. 2002); Oliver v. Department of Transportation,
1 M.S.P.R. 382, 386 (1980).
¶16 The appellant also contends that, when allowing the agency to supplement
its prehearing submissions, the administrative judge improperly failed to inquire
whether the agency’s supplemental exhibit, the certificate of eligibles for the
10
appellant’s June 12, 2012 re-advertised position, “met any probative value or
basic common sense test.” PFR File, Tab 4 at 9. Nonetheless, the appellant
acknowledges that the administrative judge made no ruling regarding the
agency’s supplemental prehearing submissions. Id. To the extent the
administrative judge relied on this document, we find no abuse of discretion.
ID at 23. Such a document was relevant and supported the testimony of the Chief
of Human Resources Operations that, after the appellant’s résumé for the
re‑advertised position was not received by the deadline, she declined to reopen
the vacancy announcement because it would have been virtually impossible to
hire him given the number of other veterans’ preference candidates on the
certificate of eligibles. ID at 16-17.
¶17 Regarding the appellant’s arguments concerning the denial of discovery,
PFR File, Tab 4 at 13, it is clear that the administrative judge informed him of
discovery procedures in the acknowledgment order, IAF, Tab 2 at 3-4. We find
that the administrative judge did not abuse his discretion in denying the
appellant’s discovery request within only a week of the hearing. Moreover, the
document the appellant sought, the March 19, 2012 certificate of eligibles from
which he was originally hired, would not have affected the outcome.
See Sanders, 114 M.S.P.R. 487, ¶ 10. The appellant contends this document is
relevant to show that he was initially hired over preference-eligible candidates
thereby disputing the agency’s assertion that, even if his application for the
re‑advertised position had been received before the deadline, it would have been
virtually impossible to hire him due to the number of veterans’ preference
candidates on the certificate of eligibles. PFR File, Tab 4 at 13. However, this
argument is entitled to little weight, given that it is undisputed that the appellant
was initially hired from a merit promotion certificate of eligibles, IAF, Tab 9 at 5,
under which an agency is not required to follow veterans’ preference rules, see,
e.g., Walker v. Department of the Army, 104 M.S.P.R. 96, ¶ 7 (2006).
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¶18 Finally, the appellant contends that the administrative judge improperly
limited his questioning of two human resources witnesses regarding the
circumstances that led to his termination. PFR File, Tab 4 at 10-11, 24-26. We
have reviewed the record and find that the limits placed on his questioning of
witnesses were within the administrative judge’s broad discretion to control the
hearing. 5 C.F.R. § 1201.41(b)(3), (6), (10); see, e.g., Tisdell v. Department of
the Air Force, 94 M.S.P.R. 44, ¶ 13 (2003) (stating that an administrative judge
has wide discretion to control the proceedings before him, to receive relevant
evidence, and to ensure that the record on significant issues is fully developed);
Miller v. Department of Defense, 85 M.S.P.R. 310, ¶ 8 (2000) (explaining that an
administrative judge has wide discretion to control the proceedings, including
authority to exclude testimony he believes would be irrelevant or immaterial).
¶19 In sum, we find that the appellant’s remaining arguments constitute mere
disagreement with the administrative judge’s findings and do not provide a basis
for disturbing the initial decision. See Diggs v. Department of Housing & Urban
Development, 114 M.S.P.R. 464, ¶ 8 (2010).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the
U.S. 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
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the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the U.S. 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 U.S. 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
title 5 of the U.S. 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 U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. 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 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 the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
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
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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.