Royal v. Department of the Army

NOTE: This disposition is nonprecedential
United States Court of Appeals
for the Federal Circuit
__________________________
CHONG H. ROYAL,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
__________________________
2010-3190
__________________________
Petition for review of the Merit Systems Protection
Board in case no. SF1221090670-W-1.
___________________________
Decided: March 18, 2011
___________________________
CHONG H. ROYAL, of Watsonville, California, pro se.
DEVIN A. WOLAK, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and REGINALD T. BLADES,
JR., Assistant Director.
__________________________
ROYAL v. ARMY 2
Before NEWMAN, GAJARSA, and PROST, Circuit Judges.
PER CURIAM.
Chong H. Royal petitions for review of the final deci-
sion of the Merit Systems Protection Board (“Board”) that
denied her request for corrective action sought in her
Individual Right of Action (“IRA”) appeal under the
Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8). See
Royal v. Dep’t of Army, Docket No. SF-1221-09-0670-W-1,
slip op. at 2 (M.S.P.B. July 20, 2010) (“Final Order”). For
the reasons stated below, we affirm.
BACKGROUND
In mid-2006, Ms. Royal began a term-limited ap-
pointment as a Korean Language Instructor with the
Army’s Defense Language Institute Foreign Language
Center (“DLIFLC”). Her initial assignment was in the
Command Language Program (“CLP”) at Continuing
Education (“CE”), where she taught basic-level Korean
language courses.
Beginning in late 2007, Ms. Royal’s immediate super-
visor, Robert Weckerle, expressed concern with her inabil-
ity and/or refusal to teach an entire course by herself. At
least two counseling sessions resulted. Contemporane-
ously, Ms. Royal sent a series of e-mails to her second-
level supervisor, Steve Collins, alleging abusive behavior
by Mr. Weckerle, including rudeness, use of profanity, and
a suspected sexual relationship with another subordinate
employee.
In April 2008, Ms. Royal was internally reassigned
from the CLP to the School of Post-Basic Instruction
(“PBI”) at CE. She believed this was an interim move
pending her placement in an overseas teaching position in
Osan, South Korea. From the Agency’s perspective,
however, the move was not interim, and she was reas-
3 ROYAL v. ARMY
signed to: 1) better assess her teaching proficiency; and 2)
accommodate her concerns about working under the
supervision of Mr. Wekerle.
At PBI, the Agency continued its evaluation of Ms.
Royal’s teaching proficiency through regular classroom
observation by her immediate supervisor, Dr. Kyoung-
Kook Kim, and additional observation by Dr. Gyseon Bae,
a member of the DLIFLC Faculty and Staff Development
Division. Dr. Kim and Dr. Bae issued independent re-
views that revealed deficiencies in Ms. Royal’s ability to
implement lesson plans with her students and a failure to
demonstrate the appropriate level of teaching proficiency.
The Agency issued a written notice to Ms. Royal stat-
ing that CE management had decided not to renew her
term appointment when it expired on December 19,
2008. 1 A Memorandum for the Record dated November
24, 2008, states that the reasons for this decision included
Ms. Royal’s poor performance, failure to improve, and the
collective opinion of CE leadership that she “could [not]
reasonably be expected to become the kind of performer
that is needed for post-basic instruction . . . .”
Ms. Royal filed a complaint with the United States Of-
fice of Special Counsel (“OSC”) alleging that the Agency’s
refusal to renew her term appointment was retaliation for
1 The Agency first notified Ms. Royal on August 18,
2008, that her appointment would not be extended. At
that time, the Agency attributed its decision to a “reduc-
tion in workload for FY 09 within the Korean Language
Program” resulting from “changed national priorities for
language training in the Armed Forces.” This notice was
withdrawn when the Agency corrected Ms. Royal’s service
computation to include her prior military service. Never-
theless, the context of downsizing was noted as support-
ing the CE leadership’s decision not to extend Ms. Royal’s
appointment. Initial Decision at 6.
ROYAL v. ARMY 4
her whistleblowing. On March 31, 2009, OSC made a
final determination to close its file on Ms. Royal’s com-
plaint. In doing so, OSC explained that there was no
violation of 5 U.S.C. § 2302(b)(8) because Ms. Royal’s
disclosures did not appear to be protected communica-
tions and there was no reason to believe that the Agency’s
personnel action was causally connected to these disclo-
sures.
Ms. Royal timely filed an IRA appeal with the Board.
See 5 U.S.C. §§ 1214(a)(3), 1221. Because she voluntarily
waived her right to a hearing, the appeal was decided
based on the parties’ written submissions. The adminis-
trative judge (“AJ”) issued an initial decision denying Ms.
Royal’s request for corrective action with respect to al-
leged retaliation for whistleblowing activity. Royal v.
Dep’t of Army, Docket No. SF-1221-09-0670-W-1, slip op.
at 1 (M.S.P.B. Nov. 17, 2009) (“Initial Decision”). In the
Initial Decision, the AJ found that Ms. Royal had ex-
hausted her administrative remedies before OSC, and Ms.
Royal’s allegations were sufficient to give the Board
jurisdiction over her IRA appeal. Initial Decision at 3
(citing Yunus v. Dep’t of Veterans Affairs, 242 F.3d 1367,
1371 (Fed. Cir. 2001)). Indeed, the AJ found that Ms.
Royal’s communications regarding Mr. Weckerle’s profane
language constituted protected whistleblowing, and
circumstantial evidence implied that the whistleblowing
was a contributing factor in the decision not to renew Ms.
Royal’s term appointment. Initial Decision at 3-4. The
AJ nevertheless denied Ms. Royal’s request for corrective
action because he found that the Agency demonstrated by
clear and convincing evidence that it would have taken
the same personnel action in the absence of Ms. Royal’s
whistleblowing. Id. at 4-5. Ms. Royal then filed a petition
for review requesting that the Board reconsider the AJ’s
initial decision.
5 ROYAL v. ARMY
The Board grants petitions for review only where the
claimant presents new or previously unavailable evidence
or the AJ makes an error interpreting a law or regulation.
5 C.F.R. § 1201.115. In its Final Order, the Board found
that Ms. Royal failed to prove either. Final Order at 1.
Accordingly, the Board denied Ms. Royal’s petition for
review and the AJ’s initial decision became final. Id. at 2.
Ms. Royal timely filed an appeal to this court. We have
jurisdiction pursuant to 5 U.S.C. § 7703(b)(1) and
28 U.S.C. § 1295(a)(9).
STANDARD OF REVIEW
Our review of the Board’s decision is limited. By
statute, we must affirm the Board’s holding unless we
find it to be: (1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation
having been followed; or (3) unsupported by substantial
evidence. 5 U.S.C. § 7703(c); Barrett v. Soc. Sec. Admin.,
309 F.3d 781, 785 (Fed. Cir. 2002).
DISCUSSION
Under 5 U.S.C. § 1221, a former federal employee,
like Ms. Royal, may bring an IRA appeal to the Board
alleging that a “personnel action” was taken in retaliation
for whistleblowing. 2 Normally, an IRA petitioner carries
the burden of establishing a prima facie case of retaliation
for whistleblowing. An IRA petitioner establishes a prima
facie case by demonstrating—by a preponderance of the
evidence, i.e., the degree of relevant evidence that a
reasonable person would accept as sufficient to find a
2 Personnel action” is defined at 5 U.S.C. § 2302(a)(2)(A) and 5 C.F.R. § 1209.4(a). We are satisfied that
Ms. Royal was subject to one or more personnel actions.
See Initial Decision at 3, 5.
ROYAL v. ARMY 6
contested fact is more likely to be true than untrue—that
(1) she made a protected disclosure, and (2) the disclosure
was a “contributing factor” in the agency’s decision to take
the personnel action. 5 U.S.C. § 1221(e); 5 C.F.R.
§§ 1209.4(c), 1209.7; see also Yunus, 242 F.3d at 1371.
The statute allows a petitioner to establish that the
disclosure was a contributing factor via circumstantial
evidence, i.e., the official taking the personnel action
knew of the protected disclosure, and the personnel action
was temporally correlated with the disclosure. 5 U.S.C.
§ 1221(e). But even if a petitioner makes this prima facie
showing, the Board will not order corrective action if the
agency shows—by clear and convincing evidence, i.e., a
higher standard than preponderance of the evidence—
that it would have taken the personnel action in the
absence of the petitioner’s whistleblowing. Id.; 5 C.F.R.
§ 1209.7(b); Fellhoelter v. Dep’t of Agriculture, 568 F.3d
965, 970-71 (Fed. Cir. 2009).
In this case, the Board had jurisdiction, and the rele-
vant legal standards were properly applied. Moreover,
the well-reasoned Initial Decision is not arbitrary, capri-
cious, or an abuse of discretion, and Ms. Royal does not
challenge the Board’s adherence to procedures required
by law. Similarly, Ms. Royal does not present any chal-
lenges contesting the Board’s application of the law.
We next review the Board’s decision in order to de-
termine whether it is supported by substantial evidence.
Substantial evidence is “more than a mere scintilla. It
means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Bradley v.
Veterans Admin., 900 F.2d 233, 234 (Fed. Cir. 1990)
(quoting Consol. Edison Co. v. Labor Board, 305 U.S. 197,
229 (1938)). Substantial evidence is a deferential stan-
dard, however, and we cannot substitute our judgment for
that of the Board. Instead, we consider only “whether,
7 ROYAL v. ARMY
looking at the record as a whole, the Agency’s evidence is
sufficient to be found by a reasonable fact finder to meet
the evidentiary burden[s] applicable to the particular
case.” Bradley, 900 F.2d at 234.
As did the Board, we focus on the finding that the
Agency would have taken the same personnel action in
the absence of Ms. Royal’s whistleblowing based upon
deficiencies in her teaching performance. Initial Decision
at 5. In October 2007, Ms. Royal initiated a series of
emails to her supervisor, Mr. Weckerle, in which she
explained that she was incapable of teaching the entire
language course that she was required to teach and she
was reluctant to accept this responsibility. She was
counseled regarding her performance on at least two
occasions. Ms. Royal’s performance did not improve
following her transfer to PBI. Two independent reviews
based upon direct classroom observation identified defi-
ciencies in Ms. Royal’s ability to implement lesson plans,
as well as a teaching quality that did not meet the level of
instruction required for intermediate and advanced
instruction in CE. Finally, Ms. Royal’s teaching deficien-
cies were thoroughly documented in the November 24,
2008 Memorandum for the Record. Indeed, the Memo-
randum for the Record resulted from CE leadership
meeting with her to explain their decision not to renew
her term appointment. This evidence supports the
Board’s finding that the Agency’s decision was based upon
Ms. Royal’s continuing performance deficiencies.
In her submission to this court, Ms. Royal does not
present any arguments that warrant reversing the
Board’s decision. She suggests that the Agency would not
have given her negative performance evaluations or
allowed her limited-term appointment to expire but-for
her whistleblowing. She therefore believes the Board
erred by not ordering corrective action. But Ms. Royal’s
ROYAL v. ARMY 8
submission offers no evidence of the conspiracy that she
alleges, and this court cannot overturn the Board’s deci-
sion based on mere speculation. In contrast, the Board’s
finding that the Agency would have taken the same
personnel action even in the absence of Ms. Royal’s whis-
tleblowing is well-supported. Beyond the direct evidence
of Ms. Royal’s performance evaluations, we note specifi-
cally the Board’s finding that the members of CE leader-
ship who determined not to renew her term appointment
lacked any motive to retaliate against her. See Initial
Decision at 6. Further, the primary deciding official, Dr.
Betty Lou Leaver, provided a sworn affidavit declaring
that Ms. Royal’s whistleblower allegations had nothing to
do with the decision not to renew her term appointment.
Finally, Ms. Royal’s evidence that she was dedicated
and worked hard is inapposite. The Agency’s decision was
based on problems observed with Ms. Royal’s teaching
performance, despite recognition that she had “worked
very hard.” Id. We acknowledge that Ms. Royal received
satisfactory performance evaluations in the past and was
considered qualified by certain of her colleagues. Never-
theless, the record includes substantial evidence that the
Agency would have would have taken the same personnel
action in the absence of her whistleblowing. 3
3 In a March 2, 2011, letter requesting oral argu-
ment, Ms. Royal again suggests a conspiracy against her,
and identifies potential witnesses. But “[o]ur precedent
clearly establishes the impropriety of seeking a reversal of
the [B]oard’s decision on the basis of assertions never
presented to the presiding official or to the [B]oard.”
Oshiver v. Office of Pers. Mgmt., 896 F.2d 540, 542 (Fed.
Cir. 1990) (quoting Rockwell v. Dep’t of Transp., 789 F.2d
908, 913 (Fed. Cir. 1986)); see also Fed. R. App. P. 10(a).
Moreover, even if we were to consider the additional
information Ms. Royal provided, substantial evidence
would still support the Board’s decision.
9 ROYAL v. ARMY
CONCLUSION
The scope of our review of Board decisions is quite
narrow. In this case, the Board’s determination was not
arbitrary, capricious, or an abuse of discretion; it was not
obtained without procedures required by law; and it is
supported by substantial evidence. Accordingly, the
Board’s decision is affirmed.
No Costs.