Suggs v. Department of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
DWIGHT A. SUGGS,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
__________________________
2010-3154
__________________________
Petition for review of the Merit Systems Protection
Board in case No. SF0752090734-I-1.
___________________________
Decided: February 11, 2011
___________________________
DWIGHT A. SUGGS, Los Angeles, California, pro se.
SARAH A. MURRAY, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With her on
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, BRIAN SIMKIN, Assistant
Director.
__________________________
SUGGS v. VA 2
Before BRYSON, CLEVENGER, and LINN, Circuit Judges.
PER CURIAM.
DECISION
Dwight A. Suggs petitions for review of a final deci-
sion by the Merit Systems Protection Board. The Board
determined that the adverse personnel action that the
Department of Veterans Affairs (“DVA”) took against Mr.
Suggs was not a retaliatory action prohibited by the
Whistleblower Protection Act (“WPA”), 5 U.S.C.
§ 2302(b)(8). The Board’s decision is in accordance with
the law and is supported by substantial evidence. We
therefore affirm.
BACKGROUND
This case arises out of comments that Mr. Suggs
made about his supervisor, Charles Lemle, at a January
2009 staff meeting of the Environmental Management
Service within the DVA. The meeting was conducted in a
question-and-answer format, and approximately 100 DVA
employees were present. Mr. Suggs, a housekeeping aide,
asked Mr. Lemle about the disparity in pay and promo-
tional opportunities available to DVA housekeeping
employees at his facility compared to those at neighboring
facilities. Dissatisfied with Mr. Lemle’s response, Mr.
Suggs called Mr. Lemle “incompetent” in front of the
group. His statement disrupted the meeting; when told to
sit down and be quiet, Mr. Suggs refused. Based on his
conduct at the meeting, the DVA removed Mr. Suggs.
The agency predicated the removal on three charges:
disrespectful conduct, disruptive conduct, and delay in
carrying out an order.
3 SUGGS v. VA
Mr. Suggs appealed his termination to the Board.
The administrative judge affirmed only the disrespectful
conduct charge, finding the other charges to be duplica-
tive and unsupported. The administrative judge also
affirmed the penalty of removal. The full Board, however,
granted Mr. Suggs’ petition for review and mitigated the
removal to a 30-day suspension.
Mr. Suggs raised a defense of whistleblowing, and his
petition to this court centers around that defense. The
administrative judge held that Mr. Suggs made three
protected disclosures. She also concluded, however, that
the DVA had met its burden to show that it would have
taken the adverse action in question even if Mr. Suggs
had not made those disclosures. She therefore held that
the DVA did not retaliate against Mr. Suggs in violation
of the WPA. The full Board did not address Mr. Suggs’
defense.
DISCUSSION
1. At the outset, Mr. Suggs makes numerous allega-
tions of perjury by persons involved in the action against
him. For instance, Mr. Suggs suggests that the deciding
official, Lynn Carrier, perjured herself by presenting
contradictory testimony, at one point stating that she
often signs letters that others prepare for her signature
without reading them and at another point stating that
she generally reads what she signs. This and other
instances of allegedly contradictory testimony that Mr.
Suggs identifies were before the administrative judge,
who decided to credit the testimony of the agency’s wit-
nesses. It is the administrative judge’s responsibility to
decide whether testifying witnesses are telling the truth.
King v. Dep’t of Health & Human Servs., 133 F.3d 1450,
1453 (Fed. Cir. 1998). As an appellate court, we cannot
SUGGS v. VA 4
disturb credibility determinations by a fact-finder who
was present during the proceedings except in the most
unusual circumstances, not present here.
2. On the merits, Mr. Suggs focuses on the Board’s
treatment of his affirmative defense of whistleblowing.
To prevail, Mr. Suggs had the burden to prove by a pre-
ponderance of the evidence that (1) the disclosure was
protected as defined by the WPA, and (2) the disclosure
was a contributing factor to the adverse personnel action
taken against him. Fellhoelter v. Dep’t of Agric., 568 F.3d
965, 970-72 (Fed. Cir. 2009). An employee can demon-
strate that a disclosure was a contributing factor by
adducing evidence that the deciding official was aware of
the disclosure and that the length of time between the
disclosure and the adverse action was such that a reason-
able person could conclude that the disclosure contributed
to the agency’s decision to take action against him. 5
U.S.C. § 1221(e)(1). If the employee makes that initial
showing, the burden shifts to the agency to show by clear
and convincing evidence that the agency would have
taken the same personnel action in the absence of the
disclosure. Fellhoelter, 568 F.3d at 971.
Mr. Suggs presented 13 allegedly protected disclo-
sures. The administrative judge dismissed three of the 13
because they were reports of coworker nonperformance.
In addition, two of the 13 related to a personality conflict
between Mr. Suggs and Paul Arterberry, his first-line
supervisor. We agree with the Board that complaints of
poor performance by coworkers and statements relating to
conflict with a superior do not rise to the level of fraud,
waste, or illegal activity, the disclosure of which the WPA
protects. Willis v. Dep’t of Agric., 141 F.3d 1139, 1143
(Fed. Cir. 1998).
5 SUGGS v. VA
Five of the eight remaining disclosures occurred be-
tween August 2005 and October 2006. Among those five
are Mr. Suggs’ reports to Mr. Arterberry that the DVA
required its housekeeping staff to use the wrong cleaning
products and Mr. Suggs’ reports to a DVA conflict-
resolution office that he felt threatened by Mr. Arterberry
and another coworker. The Board did not determine
whether those five disclosures were protected, as they all
occurred more than two years before the DVA terminated
Mr. Suggs. Because of the length of time between those
identified disclosures and Mr. Suggs’ termination, the
administrative judge determined that a reasonable person
would not infer that the agency had retaliated against
Mr. Suggs for those disclosures. We see no error in that
conclusion. 5 U.S.C. § 1221(e)(1)(B); Reid v. Merit Sys.
Prot. Bd., 508 F.3d 674, 679 (Fed. Cir. 2007).
The administrative judge found that the three re-
maining disclosures were protected. In one of the disclo-
sures, which occurred in early 2009, Mr. Suggs contacted
the DVA’s Office of Inspector General (“OIG”) to report
that Ms. Carrier had failed to comply with the procedural
requirements of the relevant collective bargaining agree-
ment. Ms. Carrier, the deciding official, testified before
the administrative judge that she was unaware that Mr.
Suggs had made the complaint in question to the OIG.
Mr. Suggs challenges the veracity of Ms. Carrier’s tes-
timony on that issue. He points out that Ms. Carrier
testified that the OIG contacts her from time to time to
discuss reports made by DVA employees. According to
Mr. Suggs, that evidence suggests that Ms. Carrier knew
about his contact with the OIG. Mr. Suggs also argues
that there was circumstantial evidence that Ms. Carrier
knew of his contact with the OIG. He points to a 2008
incident for which he was disciplined. Mr. Suggs states
SUGGS v. VA 6
that in that case the agency took disciplinary action
against him within a few days of the incident. In the case
of the 2009 incident, however, there was a three-month
delay between the incident and the agency’s proposal to
remove him. Mr. Suggs suggests that the OIG must have
contacted Ms. Carrier during that three-month period and
that the contact must have been what prompted Ms.
Carrier to terminate him.
With respect to that issue the administrative judge
credited Ms. Carrier’s testimony. The fact that the
agency pursued disciplinary action against Mr. Suggs
more quickly in 2008 than in 2009 does not give rise to an
inference that Ms. Carrier took action against Mr. Suggs
because she was aware that Mr. Suggs had contacted the
OIG. And the fact that OIG contacted Ms. Carrier from
time to time regarding employee reports does not prove
that the OIG must have contacted her with regard to Mr.
Suggs’ report. We therefore do not disturb the adminis-
trative judge’s credibility-based determination that Ms.
Carrier was unaware of the disclosure in question.
The administrative judge determined that Ms. Carrier
was aware of two of Mr. Suggs’ protected disclosures.
One was Mr. Suggs’ disclosure that LeGrand Coleman, a
supervisor to whom Mr. Suggs did not directly report, told
Mr. Suggs to stop filing complaints about him. Another is
Mr. Suggs’ July 2008 disclosure that Mr. Arterberry
violated agency policies regarding responses to violence in
the workplace. 1 Because Mr. Suggs met his burden to
1 In his brief, Mr. Suggs provides the details of
some of these incidents of workplace violence and pro-
vides reasons why he believes that Mr. Arterberry did not
properly handle the situations. The issue here is not the
nature of the violence or whether Mr. Arterberry complied
with agency procedures; it is whether Mr. Suggs reported
7 SUGGS v. VA
show that those disclosures were protected, the Board
could affirm the agency’s action only if the agency proved
by clear and convincing evidence that it would have taken
the same adverse action in the absence of the disclosures.
To decide if an agency has met that burden, the Board
ordinarily considers the following factors: (1) the strength
of the evidence supporting the adverse action; (2) the
existence and strength of the agency’s motivation to
retaliate; and (3) any evidence that similar actions were
taken against employees who were not whistleblowers.
Fellhoelter, 568 F.3d at 971.
With respect to the first factor, Mr. Suggs does not
dispute that the incident in question occurred. As to the
third factor, neither party discusses any adverse action
taken against similarly situated employees. The only
relevant disputed factor is the second factor, the agency’s
motivation to retaliate. The Board credited Ms. Carrier’s
testimony that she did not remove Mr. Suggs because of
the disclosures and had no reason to remove him because
of the disclosures, as they were not incidents that would
subject her to any embarrassment or discipline. In light
of the clear evidence that Mr. Suggs publicly undermined
his supervisor’s authority at the Environmental Manage-
ment Service staff meeting, we sustain the administrative
judge’s determination that the agency would have taken
the same action against Mr. Suggs absent the protected
disclosures. Accordingly, we affirm the Board’s decision.
No costs.
AFFIRMED
what he reasonably believed amounted to a violation of an
agency rule and whether that disclosure was a factor in
the DVA’s decision to take action against him.