Diane King v. Department of the Army

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-10301
Non-Argument Calendar
________________________
Agency No. AT-1221-11-00370-B-1
DIANE KING,
Petitioner,
versus
DEPARTMENT OF THE ARMY,
Respondent.
__________________________
Petition for Review of a Decision of the
Merit System Protection Board
_________________________
(June 27, 2014)
Before WILSON, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
Diane King petitions for review from the final judgment of the Merit System
Protections Board (MSPB), which affirmed the administrative law judge’s denial
of her individual right of action (IRA) appeal in a federal whistleblower retaliation
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case brought under 5 U.S.C. § 2302(b)(8). Ms. King raises two issues in her
petition: (1) whether the MSPB erred in concluding that the Department of the
Army met its burden of proving by substantial evidence that it would not have
hired Ms. King, regardless of her status as a perceived whistleblower, for one
position; and (2) whether the MSPB erred in concluding that Ms. King failed to
meet her burden of proving that the Army perceived her as a whistleblower when
she was subsequently not hired for a different position. For the reasons stated
below, we deny Ms. King’s petition.
I
Because we write only for the parties, we assume their familiarity with the
record in this case, and only restate those facts necessary for our decision.
Ms. King’s claim arises from the Army’s decision not to hire her for two
separate medical technologist positions at Fort Benning, Georgia—one with the
Blood Donor Center and one with the Clinical Pathology Department. Ms. King
filed a complaint with the U.S. Office of Special Counsel, alleging that the Army
had retaliated against her for being a whistleblower by withdrawing the initial
vacancies for the Blood Donor Center and Clinical Pathology Department
positions after she applied. She also alleged retaliation because the Army decided
not to hire her once the vacancies for each position were re-issued. Ms. King
alleged that the Army instead decided to hire candidates with inferior
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qualifications. The Office of Special Counsel declined to further investigate Ms.
King’s complaint.
Ms. King then filed an IRA appeal with the MSPB in October of 2010,
making the same allegations. The ALJ denied Ms. King’s request for corrective
action. The ALJ found that Ms. King established a prima facie case for the Blood
Donor Center vacancies, but that the Army had met its burden of showing that it
would have not hired Ms. King even in the absence of knowing she was a
whistleblower. For the vacancies in the Clinical Pathology Department, the ALJ
found that Ms. King did not make a prima facie case because she had not proven
that the selecting official knew or perceived her to be a whistleblower. The MSPB
affirmed the ALJ’s decision and denied Ms. King’s petition for review, finding no
basis to overturn the ALJ’s findings and credibility determinations. Ms. King filed
a petition for review with this Court on January 23, 2013.
II
Since its inception in 1982, the U.S. Court of Appeals for the Federal Circuit
had enjoyed exclusive jurisdiction over petitions for review of MSPB decisions
that only involved whistleblower claims. This changed when Congress passed the
Whistleblower Protection Enhancement Act, Pub. L. No. 112-199, § 108(a), 126
Stat. 1465 (2012) (codified as amended at 5 U.S.C. § 7703(b)(1)). See also S. Rep
No. 112-155, at 11 (2012) (noting that from 1978 to 1982, petitions for review
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could be filed in the Court of Claims, the U.S. Court of Appeals where the
petitioner resided, or the U.S. Court of Appeals for the D.C. Circuit).
In 2012, Congress, through the WPEA, expanded this jurisdiction to again
include “any court of appeals of competent jurisdiction.” 5 U.S.C. § 7703(b)(1).
Prior to that expansion, this Court only had jurisdiction over petitions for review in
“mixed” cases where whistleblower claims were coupled with discrimination
claims. See Kelliher v. Veneman, 313 F.3d 1270, 1274 (11th Cir. 2002). The
WPEA’s expansion of jurisdiction included a two-year sunset provision, giving
this Court jurisdiction over whistleblower-only petitions for review for two years
from the WPEA’s effective date. See 5 U.S.C § 7703(b)(1). See also All Circuit
Review Extension Act, H.R. 4197, 113th Cong. § 2(a) (2014) (proposing to extend
the sunset provision to a total of five years).
The WPEA, however, did not amend the standard of review proscribed in 5
U.S.C. § 7703(c), which applies to “any case filed in the United States Court of
Appeals for the Federal Circuit.” Id. It is thus unclear whether the standard of
review from § 7703(c) applies to other circuit courts after the WPEA’s
amendments, and the parties make no arguments either way. Because, however,
we have previously determined that “non-discrimination claims in ‘mixed cases’
should be reviewed by district courts under the same deferential statutory standard
of § 7703(c),” Kelliher, 313 F.3d at 1275, we apply § 7703(c)’s standard in this
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case, and rely on caselaw from the Federal Circuit, without definitively deciding
the issue. Under § 7703(c), we review “only to ensure that the [MSPB’s]
determination is (1) not arbitrary or capricious, (2) made without regard to law, or
(3) not based on substantial evidence.” Kelliher, 313 F.3d at 1276. We do not
substitute our judgment for that of the MSPB, but rather only seek to ensure that
the decision was “reasonable and rational,” and “we do not re-weigh or re-examine
the credibility choices made by the fact finder.” Id. at 1276, 1277.
III
Under the Whistleblower Protection Act, a federal agency cannot “take or
fail to take . . . a personnel action with respect to any employee or applicant for
employment because of any disclosure of information” which the statute protects.
5 U.S.C. § 2302(b)(8). See also Ruggieri v. Merit Sys. Prot. Bd., 454 F.3d 1323,
1326-27 (Fed. Cir. 2006) (explaining that “personnel action” includes the failure to
hire an applicant even where the agency cancels the vacancy announcement and
hires no one for the position at that time).
Whistleblower claims are analyzed under a burden-shifting scheme. See
Whitmore v. Dep’t of Labor, 680 F.3d 1353, 1367 (Fed. Cir. 2012). First, a
claimant must establish four elements in order to make a prima facie case: (1) the
acting official had the authority to take any personnel action; (2) the aggrieved
employee made a protected disclosure; (3) the acting official used his authority to
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take, or refuse to take, a personnel action; and (4) the protected disclosure was a
contributing factor in the agency’s personnel action. See Chambers v. Dep’t of
Int., 602 F.3d 1370, 1376 (Fed. Cir. 2010). The “contributing factor” prong can be
established “through circumstantial evidence, such as evidence that . . . the official
taking the personnel action knew of the disclosure or protected activity” and that
the personnel action happened within a period of time that a reasonable person
could conclude the disclosure to be a contributing factor in the personnel action.
5 U.S.C. § 1221(e)(1).
After a claimant makes a prima facie case, the burden shifts to the agency to
show by clear and convincing evidence that it would have taken the same
personnel action in the absence of the disclosure. See 5 U.S.C. § 1221(e)(2).
Measuring whether the agency has met this burden involves the weighing of
various factors: (1) the strength of the evidence supporting the personnel 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 similarly situated, non-whistleblower employees. See
Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999). See also
Whitmore, 680 F.3d at 1368.
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A
With regard to the two vacancies in the Blood Donor Center, the ALJ found
that Ms. King made a prima facie case because these vacancies were to be selected
by a panel with the authority to do so, and the panel canceled one vacancy and did
not hire Ms. King for the other. The ALJ found that Ms. King’s whistleblower
status was a contributing factor because the panel had knowledge of her status—
Ms. King told the panel she was fired from the VA because she was a
whistleblower. Applying the Carr factors, however, the ALJ also determined that
the Army had met its burden after hearing testimony from each of the four
panelists who interviewed Ms. King.
With regard to the first factor—the strength of the Army’s evidence in
support of its personnel actions—the ALJ was persuaded that the Army canceled
the first vacancy announcement because the hiring officials at the Blood Donor
Center were not satisfied with the fact that so few candidates had applied, and
wished to attract more applicants. The ALJ was also persuaded that the Army did
not hire Ms. King because the successful applicant, Martha Espinoza-Lloyd, was
better suited for the position.
With regard to the second factor—evidence and strength of a motive to
retaliate—the ALJ determined that the strength of the Army’s motivation was
negligible because the panel members did not know the basis of Ms. King’s
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whistleblowing activities, and the whistleblowing was not directed against the
Army. The ALJ explained that two panel members had testified that they
considered the prior whistleblowing as a positive, rather than a negative, factor
because the Blood Donor Center position involved auditing and quality assurance.
The MSPB determined that the evidence supported the ALJ’s decision “in
the aggregate considering all pertinent evidence in the record, and despite evidence
that fairly detracts from that conclusion.” Appellant’s App’x, Tab 1 at 3 (citing
Whitmore, 680 F.3d at 1368). The MSPB also rejected Ms. King’s argument that
Ms. Espinoza-Lloyd did not meet the basic qualifications for the position because
she did not have a bachelor’s degree. The MSPB noted that an entity other than
the selection panel determined that Ms. Espinoza-Lloyd was qualified, and that the
position description allowed for relevant experience to substitute for having a
degree.
Overall, Ms. King makes the same arguments before this Court as she did
before the MSPB. Under the deferential standard of 5 U.S.C. § 7703(c), those
arguments do not persuade us. The Army presented testimony from all four of the
selection panel’s members, who, overall, painted a consistent picture for the ALJ:
the panel was not satisfied with the small pool of candidates (among whom Ms.
King was the highest rated) from the first vacancy announcement, so they canceled
and re-issued it. The second time around, the panel hired Ms. Espinoza-Lloyd over
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Ms. King because Ms. Espinoza-Lloyd had glowing references, was well-regarded
by two of the panel members, and was already working in a similar Armed Forces
Blood Donor position. Ms. King, on the other hand, was aggressive and
unresponsive to questions during her interview. We therefore find no reversible
error in the decisions of the ALJ and the MSPB.
B
With regard to the two vacancies in the Clinical Pathology Department, the
ALJ determined that Ms. King did not make a prima facie case because she failed
to show that the selecting official, Lt. Col. Jennifer Anderson, perceived Ms. King
to be a whistleblower. Lt. Col. Anderson did not interview Ms. King and was not
present during her interviews for the vacancies at the Blood Donor Center. Ms.
King argues, as she did below, that this determination was wrong because the table
of contents from the agency file presented on appeal identified Lt. Col. Anderson
as the “source” for the documents relating to both the Blood Donor Center and the
Clinical Pathology Department positions. See Administrative Record, Vol. 1 at Tab
5. The MSPB rejected this argument because it found that Lt. Col. Anderson’s
direct testimony—that she did not know Ms. King was a whistleblower—
outweighed any circumstantial inference that Lt. Col. Anderson possibly knew Ms.
King was a whistleblower because she had access to the documents from the
selection process for the Blood Donor position. We find no reversible error in the
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ALJ’s and MSPB’s decisions here, either, because Ms. King has not shown that
this credibility determination was “inherently unreasonable or self-contradictory.”
See N.L.R.B. v. McClain of Ga., Inc., 138 F.3d 1418, 1422 (11th Cir. 1998).
IV
The ALJ and MSPB did not commit reversible error in finding that the Army
met its burden with respect to the Blood Donor Center vacancies, and that Ms.
King did not meet her burden with respect to the Clinical Pathology Department
vacancies. We therefore deny Ms. King’s petition.
PETITION DENIED.
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