FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GEORGE DUGGAN,

Petitioner,

v.

DEPARTMENT OF DEFENSE,

Respondent.

No. 16-73640

MSPB No.

SF-1221-14-0544-W-2

OPINION

On Petition for Review of an Order of the

Merits Systems Protection Board

Argued and Submitted December 8, 2017

San Francisco, California

Filed February 26, 2018

Before: Susan P. Graber and N. Randy Smith, Circuit

Judges, and Michael H. Simon,*

 District Judge.

Opinion by Judge Graber

* The Honorable Michael H. Simon, United States District Judge for

the District of Oregon, sitting by designation.
2 DUGGAN V. DEPARTMENT OF DEFENSE

SUMMARY**

Whistleblower Protection Act

The panel denied a petition for review in an action

brought by a senior auditor at the Defense Contract Audit

Agency (“DCAA”) under the Whistleblower Protection Act

against the Department of Defense, alleging that the

Department took several adverse personnel actions against

him in retaliation for his protected disclosures at the DCAA.

The panel held that substantial evidence supported the

Merit Systems Protection Board’s ultimate determination that

the DCAA’s personnel actions were not in retaliation for

petitioner’s whistleblowing. Specifically, the panel assumed

for purposes of its analysis that petitioner established a prima

facie case that all seven of his communications were

protected disclosures. The panel adopted the Federal

Circuit’s test, outlined in Carr v. Social Security

Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999), for

determining whether the agency – the DCAA – carried its

burden of proving by clear and convincing evidence that it

would have taken the same personnel actions against

petitioner in the absence of his protected disclosures.

The panel also held that the administrative law judge

permissibly excluded disputed evidence.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
DUGGAN V. DEPARTMENT OF DEFENSE 3

COUNSEL

Mark Hostetter (argued), Law Office of Mark W. Hostetter,

San Jose, California, for Petitioner.

David R. Pehlke (argued), Trial Attorney; Allison KiddMiller, Assistant Director; Robert E. Kirschman Jr., Director;

Chad A. Readler, Acting Assistant Attorney General; Civil

Division, United States Department of Justice, Washington,

D.C.; for Respondent.

OPINION

GRABER, Circuit Judge:

Petitioner George Duggan brought this action under the

Whistleblower Protection Act against the Department of

Defense, alleging that the Department took several adverse

personnel actions against him in retaliation for his protected

disclosures about misconduct at the Defense Contract Audit

Agency (“DCAA”). Following an unsuccessful appeal to the

Merit Systems Protection Board (“Board”), Petitioner timely

seeks review. We must set aside the Board’s decision on the

merits if it is: “(1) arbitrary, capricious, an abuse of

discretion, 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); Coons v. Sec’y of

U.S. Dep’t of Treasury, 383 F.3d 879, 888 (9th Cir. 2004). 

For the reasons that follow, we deny the petition.
4 DUGGAN V. DEPARTMENT OF DEFENSE

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner works as a Senior Auditor at the DCAA. The

events leading to the present dispute began in October 2012,

when DCAA hired Vivian Cusi as its Fremont Branch

Manager. Cusi supervised an audit team that included

Petitioner.

Cusi visited the audit team for the first time on January

22, 2013. She approached Petitioner’s cubicle to introduce

herself. According to the supervising auditor, David Downer,

who accompanied Cusi, Petitioner was “hostile” and

“disrespectful”; he shook Cusi’s hand only “reluctantly” and

“questioned her presence.” Downer further described

Petitioner as “angry” and “unfriendly” when he first met

Cusi. Downer also characterized the encounter as “quite

alarming,” in contrast to the uneventful introductions to other

members of the team.

Later that day, Cusi and Downer convened a meeting with

the audit team. Witnesses testified that Petitioner dominated

the meeting and prevented the group from addressing the

items on the agenda. In addition, Petitioner questioned Cusi’s

experience, speaking in an “aggressive,” “angry,” and

“disruptive” tone. Because of Petitioner’s behavior, the

meeting was cut short before all agenda items could be

covered.

When the minutes of the meeting were circulated by

email, Cusi replied that they were incomplete. Because Cusi

thought that Petitioner’s behavior should be recorded and

addressed separately, she did not insist that a description of

it be included in the minutes. But the minutes did record that

Cusi “stopped the meeting” because, in her view, it “was not
DUGGAN V. DEPARTMENT OF DEFENSE 5

productive and [Petitioner] was monopolizing it.” Petitioner

replied in an email that Cusi’s “reaction to the team minutes

is disappointing,” and he described the meeting as

“disastrous.”

On February 14, 2013, Cusi informed the audit team that

she, Downer, and other supervisors were focused on

providing “guidance on team norms.” She added that she was

concerned that everyone in the branch should understand “the

nuances of being candid and being respectful.” Petitioner

emailed back, copying the whole team:

Your response below is so arrogant and

beyond the pale, like telling victims they

asked for it. . . .

In fact, you were the one who was

disrespectful to us by, without provocation or

acceptable reason, calling us “unprofessional”

multiple times just because we deigned to call

you on your rote, poorly reasoned and

dangerous mgmt. concepts. . . .

Your statement “nuance of being candid”

below is just an oxymoron. . . . Accept your

mistakes and learn from them but do not try to

disguise them by blaming those who made

none.

It is just too low to blame the victims for

their victimization. So, your response below

is again disappointing and insulting, as it is

you that need “to improve” your conduct, and
6 DUGGAN V. DEPARTMENT OF DEFENSE

change the toxic environment you have

created.

Other recipients found Petitioner’s email to be rude,

disrespectful, and disparaging. Cusi was shocked and

offended.

On March 27, 2013, Petitioner received notice of a

proposed 10-day suspension for “disrespectful and/or

disruptive conduct.” The three specifications were his

behavior during the introduction to Cusi at his cubicle, his

behavior during the January 22 afternoon team meeting, and

the February 14 email. The notice also pointed out that this

was Petitioner’s third offense for inappropriate behavior. He

responded to the notice by stating, in part: “I have no

illusions of the monolithic mind-set of DCAA management

and their hatred beyond reason of me, so I expect this

retaliation will go to court.” On May 1, 2013, Petitioner was

suspended for 10 days.

On July 31, 2013, Petitioner received an annual

performance appraisal. He was rated only “minimally

successful” in the “Critical Element” of “Communication and

Organizational Support.” The appraisal recorded that

Petitioner resisted participating in meetings and challenged

the need for them, told supervisors to communicate with him

only by email and not in person, communicated in a

disrespectful way, and sent some emails that were

“particularly harsh.” He was admonished that he “must

consistently communicate in a professional and effective

manner and strive to work more harmoniously” with his

supervisors.
DUGGAN V. DEPARTMENT OF DEFENSE 7

Because Petitioner received only a “minimally

successful” rating in a “critical” area, DCAA revoked his

telework agreement. That action conformed to DCAA policy,

pursuant to which an employee’s performance must be at

least “fully successful” for the employee to be eligible for the

privilege of teleworking. Petitioner received no monetary

performance award for 2013; but no employee of DCAA did,

due to budgetary constraints.

After exhausting the whistleblower complaint procedures

with the Office of Special Counsel, Petitioner filed an

Individual Right of Action appeal on May 7, 2014. He

alleged that seven protected disclosures contributed to

DCAA’s decision to suspend him for 10 days, to rate his

performance as only minimally successful, to revoke his

telework agreement, and not to grant him a cash award in

2013. After conducting a hearing, an administrative judge

found that Petitioner had made four protected disclosures and

that they were a contributing factor to the challenged

personnel actions. But the administrative judge went on to

find that DCAA had shown by clear and convincing evidence

that it would have taken the same personnel actions even

without the protected disclosures.

Petitioner appealed to the Board, which issued a final

order affirming the administrative judge’s decision. The

Board also ruled that the administrative judge had acted

within his discretion when he denied certain discovery and

witnesses proposed by Petitioner. Petitioner timely seeks

review.
8 DUGGAN V. DEPARTMENT OF DEFENSE

DISCUSSION

We address the following two issues:1(1) whether the

Board erred in finding that the DCAA established by clear

and convincing evidence that it would have taken the same

personnel actions had Petitioner not made protected

disclosures; and (2) whether the Board erred in ruling that the

administrative judge did not abuse his discretion in excluding

various witnesses and documents. We hold: (1) Substantial

evidence supports the Board’s ultimate determination that the

DCAA’s personnel actions were not in retaliation for

Petitioner’s whistleblowing; and (2) the administrative judge

permissibly excluded the disputed evidence.

A. Substantial Evidence

Once an employee establishes a prima facie case by

showing that a protected disclosure was a contributing factor

in the agency’s personnel action, the burden shifts to the

agency to establish by “clear and convincing evidence that it

would have taken the same personnel action in the absence of

such disclosure.” 5 U.S.C. § 1221(e)(2); Whitmore v. Dep’t

of Labor, 680 F.3d 1353, 1367 (Fed. Cir. 2012). “Clear and

convincing evidence is that measure or degree of proof that

produces in the mind of the trier of fact a firm belief as to the

allegations sought to be established.” 5 C.F.R. § 1209.4(e).

As noted, we assume, without deciding, that all seven

communications that Petitioner has identified constituted

protected disclosures. We also assume that all the disclosures

were a factor in the DCAA’s personnel actions, as the

1 We assume, without deciding, that all seven disclosures that

Petitioner made were protected.
DUGGAN V. DEPARTMENT OF DEFENSE 9

administrative judge and the Board found with respect to four

of the disclosures. Thus, we assume for purposes of our

analysis that Petitioner established a prima facie case.

The pivotal question for decision, then, is whether

substantial evidence supports the Board’s finding that the

DCAA proved by clear and convincing evidence that it would

have taken the same personnel actions against Petitioner in

the absence of his protected disclosures. See Kewley v. Dep’t

of Health & Human Servs., 153 F.3d 1357, 1359 (Fed. Cir.

1998) (reviewing such a finding for substantial evidence). 

Substantial evidence in this context is “such relevant evidence

as a reasonable mind might accept as adequate to support a

conclusion.” McEntee v. Merit Sys. Prot. Bd., 404 F.3d 1320,

1325 (Fed. Cir. 2005) (quoting Consol. Edison Co. of N.Y. v.

NLRB, 305 U.S. 197, 229 (1938)).

We adopt the Federal Circuit’s test for determining

whether, in a given case, an agency has carried its burden. In

Carr v. Social Security Administration, 185 F.3d 1318, 1323

(Fed. Cir. 1999), the court listed three factors to consider: 

(1) “the strength of the agency’s evidence in support of” the

action taken; (2) “the existence and strength of any motive to

retaliate on the part of” the decision-makers; and (3) “any

evidence that the agency takes similar actions against”

similarly situated employees who are not whistleblowers.

With respect to the proposed 10-day suspension and the

resulting performance rating of only “minimally successful”

in the area of communication,

2 we also adopt the Federal

2 The restriction of teleworking privileges followed automatically, by

policy, from the “minimally successful” rating in the annual performance

appraisal. And the absence of a 2013 bonus for all employees resulted
10 DUGGAN V. DEPARTMENT OF DEFENSE

Circuit’s holdings to the effect that an employee may be

disciplined for the way in which he or she communicates a

protected disclosure. That is, an employer is entitled to

demand basic civility even in this context. As the Federal

Circuit has explained, 5 U.S.C. § 1221(e)(2) does not require

“that the adverse personnel action be based on facts

completely separate and distinct from protected

whistleblowing disclosures.” Watson v. Dep’t of Justice,

64 F.3d 1524, 1528 (Fed. Cir. 1995) (internal quotation marks

omitted). Accordingly, “wrongful or disruptive conduct is

not shielded by the presence of a protected disclosure.” 

Greenspan v. Dep’t of Veterans Affairs, 464 F.3d 1297, 1305

(Fed. Cir. 2006) (emphasis added). To be sure, an employer

may not punish an employee merely for being blunt or critical

of management when making a protected disclosure. Id. at

1305–06. For that reason, the court in Greenspan ruled in

favor of the employee. Id. at 1299. But the court there

declined to consider whether the employee’s behavior went

beyond blunt to become “disruptive” or “disrespectful,”

because the agency had not relied on such behavior as a

ground for the discipline imposed. Id. at 1304–05. Finally,

we note that the Federal Circuit definitively put to rest

Petitioner’s argument here, that the manner in which an

employee communicates a protected disclosure cannot be

disciplined. In Kalil v. Department of Agriculture, 479 F.3d

821, 825 (Fed. Cir. 2007), the court emphasized that

Greenspan does not mean that “once a disclosure qualifies as

protected, the character or nature of that disclosure can never

supply support for any disciplinary action.”

from budgetary considerations. As to those actions, we readily conclude

that the agency has met its burden.
DUGGAN V. DEPARTMENT OF DEFENSE 11

We next apply the Carr standards against that backdrop. 

Considering the record as a whole,3the evidence in support

of the personnel actions is strong. Nearly all witnesses other

than Petitioner characterized his behavior at the January 22

meeting as disruptive and disrespectful; indeed, the team

could not complete its discussion of the intended topics

because of his conduct. And the Board permissibly

concluded that the February 14 email conveyed a nasty and

condescending tone that went well beyond mere bluntness or

a critique of management practices. Accordingly, the first

Carr factor supports the Board’s decision.

The second Carr factor pertains to motive. In this regard,

we emphasize that the only question is whether Petitioner’s

whistleblowing motivated the challenged personnel actions,

regardless of whether his critiques were valid. We therefore

assume, without deciding, that the substance of his criticisms

was correct. It is highly significant that Petitioner had been

admonished previously for his inappropriate behavior, twice,

before he made any of the protected disclosures. As the

suspension memorandum pointed out: “Considering it is a

3rd offense, this proposed penalty [a 10-day suspension] is

lenient” when viewed in the light of the written disciplinary

policies of the agency. The previous discipline and

counseling also pertained to Petitioner’s behavior when

communicating with others at DCAA; the suspension

memorandum noted that “previous supervisors/managers

have addressed appropriate soft skills.” Petitioner was urged

“to express [his] viewpoints in a respectful manner.” Again,

viewing the record as a whole, substantial evidence supports

3 We are unpersuaded by Petitioner’s argument that the Board failed

to consider all the evidence.
12 DUGGAN V. DEPARTMENT OF DEFENSE

the Board’s finding that the personnel actions were not

retaliatory.

The third Carr factor plays no role in our analysis. 

DCAA’s human resources department found no other

employees with three similar offenses. And the suspension

memorandum accurately recorded that Petitioner received a

more lenient penalty than the agency’s progressive-discipline

guidelines provide. (In fact, one non-whistleblowing

employee received a 12-day suspension for his first offense,

though the offenses were not similar to Petitioner’s.)

Considering all the Carr factors and the record as a

whole, we conclude that substantial evidence supports the

Board’s determination that the agency proved, by clear and

convincing evidence, that it would have taken the same

disciplinary action against Petitioner in the absence of his

whistleblowing activities.

B. Excluded Evidence

Petitioner asserts that the administrative judge abused his

discretion by excluding four agency employees as witnesses

and excluding, as well, documents and emails in their

possession that related to Petitioner. He further claims that

the administrative judge erred by excluding, during the

examination of one witness who did testify, documents

related to Petitioner. We review those decisions for abuse of

discretion. Curtin v. Office of Pers. Mgmt., 846 F.2d 1373,

1378 (Fed. Cir. 1988).

The administrative judge granted a motion to compel

discovery of all documents concerning Petitioner to and from

the responsible management officials during the relevant
DUGGAN V. DEPARTMENT OF DEFENSE 13

period. To the extent that the discovery order did not cover

every document now in dispute, the reason is that the

witnesses whose documents were sought were not the

responsible management witnesses. And none of the

excluded witnesses was a decision-maker with respect to the

challenged personnel actions; none influenced the

disciplinary actions.

Finally, Petitioner challenges the administrative judge’s

ruling that denied discovery requests relating to similarly

situated non-whistleblowing employees. But granting those

discovery requests would have resulted in a fruitless search

for similarly situated employees; the uncontradicted evidence

showed that there were no other employees who were

disciplined for the third time for disrespectful or

insubordinate conduct.

Accordingly, the administrative judge did not abuse his

discretion.

Petition DENIED.