Fleming v. Department of the Interior

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KATHERINE L. FLEMING,
Petitioner
v.
DEPARTMENT OF THE INTERIOR,
Respondent
______________________
2016-1247
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-1221-11-0460-B-2.
______________________
Decided: May 9, 2016
______________________
KATHERINE L. FLEMING, Homestead, FL, pro se.
ROBERT NORWAY, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by ALLISON
KIDD-MILLER, ROBERT E. KIRSCHMAN, JR., BENJAMIN C.
MIZER.
______________________
Before LOURIE, PLAGER, and STOLL, Circuit Judges.
2 FLEMING v. INTERIOR
PER CURIAM.
Katherine L. Fleming petitions for review of the Merit
System Protection Board’s (“Board”) decision denying her
request for corrective action in an individual right of
action (“IRA”) appeal. We affirm.
BACKGROUND
The National Park Service, a component of the De-
partment of the Interior, employed Fleming as a Museum
Curator at Everglades National Park. Fleming was
appointed for a term that began on September 18, 2005
and was not to exceed October 17, 2006. The term could
be extended up to four years, subject to completion of a
one-year trial period. In June 2006, before the end of her
one-year trial period, Fleming was terminated due to
unsatisfactory conduct and performance.
A lengthy procedural history eventually followed. In
an IRA appeal, Fleming alleged that her termination was
in retaliation for various disclosures that constituted
protected whistleblowing activity. In one of those disclo-
sures, Fleming informed the eventual deciding official
that she was improperly exposed to hazardous chemicals
while performing emergency stabilization of cannons at
the Dry Tortugas National Park.
An administrative judge (“AJ”) dismissed Fleming’s
appeal for lack of jurisdiction after determining there was
no protected disclosure. On review, the Board vacated the
AJ’s decision because the Dry Tortugas disclosure could
have been a contributing factor to Fleming’s termination.
In that relevant disclosure, Fleming had informed the
eventual deciding official that she was improperly ex-
posed to hazardous chemicals at work.
On remand, the AJ denied Fleming’s request for cor-
rective action. The AJ found that Fleming failed to prove
that she made a protected disclosure, because her Dry
Tortugas disclosure revealed information that the decid-
FLEMING v. INTERIOR 3
ing official already knew. The AJ also found that even
assuming the disclosure was protected and was a contrib-
uting factor to Fleming’s termination, the agency proved
by clear and convincing evidence that it would have
terminated Fleming in the absence of the disclosure.
On review, the Board determined that Fleming’s
disclosure was protected even though it revealed infor-
mation that was already known to the deciding official.
The Board also determined that the AJ’s analysis of the
purportedly clear and convincing evidence did not comply
with the standard described in Whitmore v. Department of
Labor, 680 F.3d 1353 (Fed. Cir. 2012). Specifically, the
Board found that the AJ was required to consider Flem-
ing’s evidence and arguments that her supervisor’s asser-
tions about her performance and conduct were
unreasonable. The Board found that the AJ also was
required to consider any other evidence that detracted
from the agency’s claim that it terminated Fleming based
only on her performance (and not in retaliation). The
Board remanded for the AJ to reconsider the record as a
whole and make thoroughly-reasoned findings addressing
the evidence supporting his conclusions and the counter-
vailing evidence.
On remand, the AJ denied Fleming’s request for
corrective action. The AJ found that Fleming made a
protected disclosure and that this disclosure was a con-
tributing factor to her termination. However, the AJ
found that the agency demonstrated by clear and convinc-
ing evidence that it would have taken the same termina-
tion action in the absence of the disclosure. The AJ made
this determination on the basis of the three factors listed
in Carr v. Social Sec. Admn., 185 F.3d 1318, 1323 (Fed.
Cir. 1999) ((1) “the strength of the agency’s evidence in
support of its personnel action”; (2) “the existence and
strength of any motive to retaliate on the part of the
agency officials who were involved in the decision”; and
(3) “any evidence that the agency takes similar actions
4 FLEMING v. INTERIOR
against employees who are not whistleblowers but who
are otherwise similarly situated”).
Fleming petitioned for review of the AJ’s decision. On
review, the Board modified the AJ’s decision because the
AJ erred by taking an overly restrictive view of the second
Carr factor. However, the Board otherwise affirmed the
AJ’s decision. With respect to the first Carr factor, the
Board determined that the evidence supporting Fleming’s
termination was “very strong.” With respect to the second
Carr factor, the Board determined that there may have
been some motive to retaliate against Fleming. The third
Carr factor was not at issue. As a result, the Board
weighed the first and second factors, and agreed with the
AJ that the agency had met its burden of showing by clear
and convincing evidence that it would have terminated
Fleming absent her disclosure.
Fleming petitions this court for review. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
We must affirm the Board’s decision unless it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c); Hayes v. Dep’t of the Navy, 727 F.2d
1535, 1537 (Fed. Cir. 1984). Substantial evidence is
“‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Matsushita
Elec. Indus. Co. v. United States, 750 F.2d 927, 933 (Fed.
Cir. 1984) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)).
We review procedural matters relative to discovery
and evidentiary issues for abuse of discretion; such mat-
ters fall within the Board’s sound discretion. Curtin v.
Office of Personnel Mgmt., 846 F.2d 1373, 1378 (Fed. Cir.
FLEMING v. INTERIOR 5
1988). Credibility determinations by the Board are “vir-
tually unreviewable.” Hambsch v. Dep’t of the Treasury,
796 F.2d 430, 436 (Fed. Cir. 1986).
The Board’s decision was supported by substantial ev-
idence. The reasons for Fleming’s removal were support-
ed by evidence from the deciding official, Fleming’s
supervisor, and two National Park Service archivists. It
is possible that a fact-finder could review the evidence
and come to a conclusion that supported Fleming’s char-
acterization of her conduct and performance. However,
the possibility of drawing two inconsistent conclusions
from the evidence does not preclude the Board’s finding
from being supported by substantial evidence. See
Matsushita Elec. Indus. Co., 750 F.2d at 933. Moreover,
“[t]he standard is not what [we] would decide in a de novo
appraisal, but whether the administrative determination
is supported by substantial evidence on the record as a
whole.” Parker v. United States Postal Serv., 819 F.2d
1113, 1115 (Fed. Cir. 1987). In sum, we find no basis for
disturbing the Board’s decision.
Fleming disagrees. She reviews the evidence, chal-
lenges various credibility determinations, and suggests an
alternative narrative in which (1) she did not exhibit
performance or conduct problems, (2) she was improperly
evaluated, and (3) her supervisor—not Fleming—
exhibited problematic behavior.
Again, there may be evidence supporting and militat-
ing against Fleming’s assertions, but we “are not in a
position to re-evaluate these credibility determinations,
which are not inherently improbable or discredited by
undisputed fact.” See Pope v. United States Postal Serv.,
114 F.3d 1144, 1149 (Fed. Cir. 1997). Indeed, such de-
terminations are “virtually unreviewable” on appeal. See
Hambsch, 796 F.2d at 436. Although Fleming reviews the
evidence in detail, we repeat that “[t]he standard is not
what [we] would decide in a de novo appraisal, but wheth-
6 FLEMING v. INTERIOR
er the administrative determination is supported by
substantial evidence on the record as a whole.” Parker,
819 F.2d at 1115. Contrary to Fleming’s arguments, the
Board’s decision was supported by substantial evidence.
Fleming also argues that certain evidence constituted
hearsay and that various witnesses improperly relied on
hearsay evidence. However, “it has long been settled that
[hearsay] may be used in administrative proceedings and
may be treated as substantial evidence, even without
corroboration, if, to a reasonable mind, the circumstances
are such as to lend it credence.” Hayes, 727 F.2d at 1538.
Moreover, “procedural matters such as the admissibility
of evidence, including hearsay, fall within the sound
discretion of the Board and its AJs.” Kewley v. Dep’t of
Health & Human Servs., 153 F.3d 1357, 1364 (Fed. Cir.
1998). There has been no error in this regard.
Fleming also has concerns about the absence of cer-
tain evidence, such as receipts and purchase orders doc-
umenting what chemicals were used during the incident
that formed the basis of Fleming’s protected disclosure.
Fleming observes that “the Federal Circuit has held that
even merely negligent destruction of relevant evidence
merits adverse inferences, and the Board’s failure to
impose them is an abuse of discretion.” Pet. Br. at 30
(citing Kirkendall v. Dep’t of the Army, 573 F.3d 1318,
1327 (Fed. Cir. 2009)). She suggests that the “absence of
these documents should be of great concern since we can
only speculate about what other documents might have
been withheld or missing.” Pet. Br. at 30.
We decline to engage in such speculation. In Kirken-
dall, we found that the Board abused its discretion be-
cause it had departed from its longstanding practice of
drawing such inferences, if the relevance of the destroyed
documents was “beyond doubt.” See Kirkendall, 573 F.3d
at 1327. In this instance, it is not clear that any docu-
ments were destroyed. Moreover, to prevail, Fleming
FLEMING v. INTERIOR 7
must prove that the error caused substantial harm or
prejudice to her rights that could have affected the out-
come of the case. See Curtin, 846 F.2d at 1379. Fleming
has not met this burden, and there was no abuse of dis-
cretion in the Board’s handling of procedural matters
concerning discovery. See id. at 1378.
We have considered Fleming’s other arguments and
find them unpersuasive. The Board’s decision was sup-
ported by substantial evidence and was not arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law, or obtained without procedures
required by law, rule, or regulation having been followed.
For the foregoing reasons, we affirm the Board’s decision.
AFFIRMED
No costs.