F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

G E O R G E D U G G

A N , Petitioner
,

v.

D E P A R T M E N T O F D E F E

N S E , R e spondent. No. 16-73640

MSPB No. SF -1221-14-0544-W -2

OPI N I ON

O n Petition for Review of an Order of the Merits Sy stems Protection B oard

Arg u ed and Submitted December 8, 2017 San F rancisco, California

F iled F ebruary

26, 2018

B efore: Susan P. Graber and N. Randy Smith, Circuit J udg es, and Michael H. Simon, * District J udg e.

Opinion by

J udg e Graber

* T h e Ho n o rab le Mich ael H. Sim o n , Un ited States District J u d g e f or th e District o f

Oreg o n , sittin g b y

d esig n atio n

.D U G G A N V

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SUMMARY * *

Whistleblow er P r otection Act

The panel deni ed a petition for review in an action broug ht by a senior auditor at th e D e f ense Contract Audit Ag ency (“DCAA”) under the W hist l eblower Protection A ct ag ainst the D epartment o f Defense, alleg ing that the Department took several adverse pers o nnel actions ag ainst him in retaliation f

or his p rotected disclosures at the D CAA.

The panel held that substantial evidence supported the Merit Sy stems Prote c tion B oard’s ultimate determination that the DCAA’s personnel actions were n o t in retaliation for petitioner’s w histleblowing

. Specifically

, the panel assumed for purposes of its a

naly sis that petitioner established a p rima facie c ase that all seven of his communications were protecte d d i sclosures. The panel adopted the F ederal Circuit’s test, outlined in Carr v. S ocial S ecurity Administration

, 185 F

. 3d 1318, 1323 (F ed. Cir. 1 9 9 9 )

, for determini n g w h ether the ag ency – the DCAA – carried its burden of proving by clear and convincing e v i d ence that it would have taken the same personnel actions a ga inst petitioner in the absence of his protected disclosures.

The panel also held that th e administrative law judg e permissibly

ex cluded disputed evidence.

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.D U G G A N V

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COUNSEL

Mark Hostetter (arg

ued ), L aw Office of Mark W

. Hostetter, San J ose, California, for Petitioner.

David R. Pehlke (arg

u ed), Trial Attorney ; Allison K iddMiller, A ssistant Director; Robert E. Kirschman J r., Director; Chad A. Readler, Acting Ass i s t a n t Attorney General; Civil Division, United States D epartment of J ustice, W a s h ing ton, D.C.; for Respondent.

OP INION

GRAB ER, Circuit J udg e:

Petitioner Georg e D ug g a n broug ht this ac t i o n under the W h istleblower Protection Act ag ainst the D epart m e n t o f Defense, alleg ing that the Department took sev e r a l adverse personnel a ctions ag ainst him in retaliation for his protected disclosures a

bout misconduct at the Defense Contract Audit Ag ency ( “DCAA”). F ollowing an unsuccessful appeal to the Merit Sy stems Protection B oard (“B oard”), Petitioner timely seeks review. W e must set aside the B oard’s decision on the merits if it is: “(1) a rbitrary

, capricious, an ab u s e o f discretion, or o therwise not in accordance w i th law; (2) obtained without procedures required by law, rule, o r reg ulation having been followed; or (3) unsupported b y 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). F or the reasons that follow, we deny the petition.D U G G A N V

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F ACTUAL

AND PROCEDURAL

B ACKGROUND

Petitioner works as a Senior Auditor at the DCAA. The
events leading to the present dispute beg an in October 2012, when D CAA h i r ed Vivian Cusi as its F remont B ranch Manag er. Cusi supervised a n audit team tha t i n cluded Petitioner.

Cusi visited the audit team f o r t h e first time on J anuary 22, 2 013. S h e approached Petitioner’s cubicle to introduce herself. According to the supervising auditor, David D owner, who accompanied Cusi, Petitioner was “hostile” a nd “disrespectful”; he shook Cusi’s hand only “reluctantly ” a nd “questio n e d her presence.” Downer further described Petitioner as “ang ry ” and “ u n f r i e ndly ” when he first met Cusi. Downer also characteriz ed the encounter a s “quite alarming ,” in contrast to the u neventful introductions to other members of the team.

L ater that day

, Cusi and Downer convened a meeting with the audit team. W itnesses testified that Petitioner dominated th e m eeting and prevented the g roup f rom addressing the items on the ag enda. I n addition, Petitioner questioned Cusi’s

ex p erience, speaking in a n “ag g ressive,” “ang r y , ” a nd “disruptive” tone. B ecause of Petitioner’s behavior, the meeting was cut short b efore all a g enda it e ms could be covered.

W h en the minutes of the meeting were c i rculated b y email, Cusi replied that they were incomplete. B ecause Cusi thoug ht that Petitioner’s behavior should be recor d ed a nd addresse d s e p a rately

, she did not insist that a description o f it be included in the minutes. B ut the minutes did record that Cusi “stopped the meeting ” because, in her view, it “was notD U G G A N V

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productive a

nd [ Petitioner] was monopoliz ing it.” Petitioner replied in an e mail that Cusi’s “reaction to the team minutes is disappointing ,” and he described the meeting a s “disastrous.”

On F ebruary 14, 2 013, Cusi informed the audit team that she, Do w n e r , and other supervisors were focused on providing “g uidance on team norms.” She added that she was concerned that every

one in the branch should understand “the

nuances of b eing candid and b eing respectful.” P et i tioner emailed back, copy

ing the whole team:

Your response b e l o w is so arrog ant a nd bey o nd the p ale, like telling v i ctims they asked for it. . . .

I n fact, y o u were the one who was disrespectful to us b y , without provocation o r acceptable reason, calling us “unprofessional ” multiple times just because we deig ned to c all
y ou on y o u r rote, poorly reasoned a nd dang erous mg mt. concepts. . . .

Your statement “nuance of being candid” be l o w i s j ust an ox y

moron.

. . . Accept y our mistakes and learn from them b ut do not try to disg uise them by blami n g those who made

none.

I t is just too low to blame the victi m s for their victimiz ati o n

. So, y our response below is ag a in d isappointing a n d insulting

, as it is
y ou that need “to improve” y our conduct, a ndD U G G A N V

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chang e the tox ic environment y ou have created.

Other r ecipients found Pe t i t i oner’s email to be rude, disrespectful, and disparag ing

. C u si was shocked a nd offended.

On March 27, 2013, Pet i t i o ner received notice of a propo sed 10-day suspension for “disrespectful and/or disruptive conduct.” The three specifications w e re h i s behavior during the introdu c tion to Cusi at his cubicle, his behavior during the J anuary 22 afternoon team meeting , and the F ebruary 14 email. The notice al s o pointed out that this

was Petitioner’s third o f

fense for inappropriate behavior. He responded to the notice b y s t a t i ng , in part: “I h ave no illusions of the monolithic mind-set of DCAA manag ement and their hatred bey ond reason of m e , s o I e x pect this retaliation will g o to c ourt.” On May 1, 2013, Petitioner was suspended for 10 day s.

On J uly 31, 2013, Petitioner received a n annual performance appraisal. H e w as rated only “m inimally successful” in the “Critical Element” of “Communication a nd Org a niz ational Support.” The appraisal recorded that Petitioner r esist e d participating in meeting s and challeng ed the need for them, told supervisors to communicate with him only by e m a i l and not in person, communicated in a disrespect ful way , a

nd sent some emails that were “particul arly harsh.” He was admonished that he “must consistently c om m u nicate in a professional and effective

man ner a nd strive to work more harmoniously ” with his supervisors.D U G G A N V

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B ecause Petitioner received only a “minimally successful” rating in a “critical” area, DCAA revoked his telework ag reement. T h at action c o nformed to DCAA policy

, p u r suant to which an employ ee’s performance must b e at least “fully successful” for the employ ee to be elig ible for the privileg e of teleworking

. Petitioner received no mo n e tary performance a

ward for 2013; but no employ ee o f DCAA did, due to budg etary

constraints.

After ex hausting the w histleblower complaint procedures wi t h the O ffice of Special Counsel, Petitioner filed an I ndividual Rig ht o f Action appeal on May 7, 2 0 1 4

. He alleg ed that s e v en protected disclosures contributed to DCAA’s decision t o suspend him f or 10 day s, to rate his performance as only minimally successful, to revoke his telework ag reement, and not to g rant him a cash award in 2013. A fter conducting a hearing

, an adm i n i strative judg e found that Petitioner h ad made four protected disclosures a nd that they w ere a contributing factor to the cha l l e n g ed personnel actions. B ut the administrat i v e judg e went on to find that DCAA had shown by clear a n d convincing evidence that it would have taken the same personnel acti o n s even without the protected disclosures.

Petitioner appealed to the B o a r d, w h i c h issued a final order affirming the a dministrative judg e’s d ec i s i o n. The B oard a l s o ruled that the administrative judg e had acted within his discretion when he denied certain discovery a nd witnesses proposed by Petitio n er. Petitioner timely seeks review.D U G G A N V

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D I SCUSSI ON

W e address the following two issues: 1 (1) wh e t h e r t he B oard erred in finding that the DCAA established by clear and convincing evidence t hat it would have taken the same personn el actions had Petitioner not made protected disclosures; and (2) whether the B oard erred in ruling that the administrative judg e did not a b u se his discretion in ex cluding various witnesses and documents. W e hold: (1) Substantial evidence supports the B oard’s ultimate determination that the DCAA’s personnel actions we r e n o t in retaliation for Petitioner’s whistleblowing ; and (2) the administrative judg e permissibly

ex cluded the disputed evidence.

A. Substantial Evidence

Once an e m p l oy ee establishes a prima f acie case b y showing that a protected d isclosure was a contributing factor in the ag ency ’s personnel a ction, the b u r d e n s hifts to the
ag ency to establish by “clear and convincing e vidence that it would have taken the same personnel action in the absence o f such disclosure.” 5 U.S.C. § 1221(e)(2); W hitmore v

. Dep’t of Labor , 680 F .3d 1353, 1367 (F ed. Cir. 2012). “Clear and convincing evidence is that m e as ure or deg ree of proof that produces in the mind of the trier of fact a firm belief as to the alleg ations soug ht to be established.” 5 C.F .R. § 1209.4(e).

As noted, we assume, without d eciding

, that all seven communications that Petitioner has identified constituted protected disclosures. W e also assume that all the d isclosures

wer e a f a ctor in the DCAA’s personnel actions, a s the

1 W e assu

m e, w ith o u t d ecid i n g , th at all sev en d isclo su res th at P etitio n er m ad e w ere p ro tected

.D U G G A N V

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administrative judg e a

nd the B o ard found with respect to four of the disclosures. Thus, we assume for pur p o s es of our analy sis that Petitioner established a prima facie case.

The pivotal question for decision, then, is w h e t h e r substantial evidence supports the B oard’s finding th a t the DCAA proved by clear and convincing evidence that it would have taken the s a me personnel actions ag ainst Petitioner in the absence o f his protected d isclosures. See Kewley v. Dep’t of Health & Human Servs.
, 153 F .3d 1357, 1359 (F ed. Cir. 1998) ( reviewing such a f inding for substantial e v i d ence). Substantial evidence in t

h i s c o ntex t is “such relevant evidence

as a reasonable mind mig ht accept as adequate t o support a conclusion.” McEntee v

. Merit Sys. P rot. Bd.

, 404 F .3d 1320, 1325 ( F ed. Cir. 2005) (quoting Consol. Edison Co. of N.Y

. v

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

W e adopt t h e F ederal Circuit’s test for d etermining whether, in a g iven case, a n ag ency has carried its burden. I n Carr v. Social Security Administration

, 1 85 F

. 3d 1 318, 1323 (F ed. Cir. 1999), the c ourt listed three factors to consider: (1) “ the streng th of the ag ency ’s e vidence in support of” the action taken; (2) “the ex istence and streng th of any motive to retaliate on the part of” t h e d e c ision-makers; and (3) “any evidence that the a ge ncy takes similar actions ag a inst” similarly situated employ ees who are not whistleblowers.

W i t h r e spect to the proposed 10-day suspension and the resulting performance rating of only “minimally

successful” in the area o f communication

, 2 we also adopt the F ederal

2 T h e restrictio n o f telew o rk in g priv ileg es f o llo w ed au to m atically

, b y p o licy

, f ro m th e “ m in im ally su ccessf u l” ratin g in th e an

n u al p erf o rm an ce ap p raisal. A

n d th e ab sen ce o f a 20 1 3 b on u s fo r all em

p lo y ees resu ltedD U G G A N V

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Circuit’s holding s to the effect that an employ ee may be disciplined for the w a

y i n w h ich he or she communicates a p r o tected disclosure. That is, an employ er is entitled t o demand basic civility e ven i n t h i s contex t. As the F ederal Circuit has ex plained, 5 U .S.C. § 1221(e)(2) does not require “that the adverse p erson n e l action b e based on facts

c o m p l e t e l y s e p a r a t e a n d d i s t i n c t f r o m p r o t e c t e d whistleblowing disclosures. ” W a tson v. Dep’t of Justice
, 64 F .3d 1524, 1528 (F ed. Cir. 1995) (internal quotation marks omitted). According ly

, “wrong ful or disruptive c o nduct is
not shielded by the presence o f a protected disclosure.” Greenspan v. Dep’t of Veterans Affairs

, 464 F .3d 1 297, 1305 (F ed. Cir. 2006) (emphasis added). To be sure, an employ er may not punish an employ e e merely for b eing blunt or critical of manag ement when making a protec t e d d i sclosure. I d. at 1305–06. F or that reason, the court in Gr e e n s p an ruled in favor o f the employ ee. Id. at 1299. Bu t t he c ourt there declined to consider whether the employ ee’s behavior went bey ond blunt to b ecome “disruptive” or “di s r espectful,” because the ag ency had n ot relied on such behav i o r a s a g round for the discipline imposed. Id. at 1 3 0 4–05. F inally

, we note that the F ederal Circuit definiti v e l y put to r e st Petitio n e r ’s arg ument here, that the manner in which an employ e e communicates a protected disclosure cannot be disciplined. I n Kalil v. Department of Agriculture

, 479 F .3d 821, 825 (F ed. Cir. 2007), the court e m phasiz ed that Greenspan does not mean that “once a disclosure qualifies a s protected, the character or nature of that disclosure can never supply support for any disciplinary action.”

f ro m b u dg etary co n sid eratio n s. A s to th ose actio n s, w e read ily co n clu d e th at th e ag en cy

h as m et its b u rd en

.D U G G A N V

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W e nex t apply the Carr

standards ag ainst that backdrop. Considering the record as a whole, 3 the evidence i n support of the p ersonnel actions is strong

. Nearly all witnesses other than Petitioner characteriz e d h is behavior at the J anuary 22 meeting as disruptive an d d i s respectful; indeed, the team could n o t complete its discussion of the intended topics because o f h i s conduct. And the B oard permissibly concluded that the F ebruary 1 4 email convey ed a nasty a nd condescending tone that went well bey ond mere bluntness o r

a critique o f manag ement practices. According ly

, the first Carr factor supports the B oard’s decision.

The second Carr factor pertains to motive. I n this reg ard,

w e emphasiz e that the only q uestion is whether Petitioner ’s whistleblowing motivated the challeng ed personnel a ctions,
reg ardless of whether his critiques were valid. W e therefore
assume, w ithout deciding

, that the substance of his criticisms

was c orrect. I t is hi gh l y sig nificant that Petitioner h ad been admonished previously for his inappropriate behavior, twice, before he made any of the protected d isclo s u r e s

. As the suspension memorandum pointed out: “Consider i n g it is a 3rd offense, this proposed penalt y [ a 1 0-day suspension] is lenient” when viewed in th e l i ght o f the written disciplinary policies o f th e a gency

. The previous discipline a nd counseling also p e rtained to Petitioner’s behavior when communicating with others a t DCAA; the suspension memorandum noted that “previous supervisors/man a g ers have addressed appropriate soft skills.” Petitioner was urg ed “to ex press [ his] viewpoints in a respectful manner.” Ag ain, viewing the r e cord as a whole, substantial evidence supports

3 W e are u n

p ersu ad ed by P etitio n er’ s arg u m en t th at th e B o ard f ailed
to co n sid er all th e ev id en ce.D U G G A N V

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the B oa r d ’s finding that the personnel actions were not retaliatory

.

Th e third Carr factor play s no role in our analy sis. DCAA’s human resources department found no ot h er

e mploy e es with three similar offenses. And the susp e n s i o n memorandum accurately reco rd ed that Petitioner received a

more lenient penalty than the ag ency ’s prog ressive-discipline
g uidelines provid e

. (I n fact, one non-whistleblowing employ e e received a 12-day suspe nsion for his first offense, thoug h the offenses were not similar to Petitioner’s.)

C onsidering all the Carr factors and the record a s a whole, we conclude that substanti a l evidence supports the B oard’s d e termination that the ag ency prove d

, b y clear a nd convincing evidence, that i t w o u ld have taken the same d i sciplinary action ag a inst Petitioner in the absence of h i s whistleblowing activities.

B

. Excluded Evidence

Petitioner asserts that the administrative judg e abused his discretion by ex cluding four ag ency employ ees as w itnesses and ex cluding

, as well, documents and emails i n their possession that related to Petitioner. H e further claims that the a dministrative jud ge e r red by ex cluding

, during the

ex a mination of one w i tness who did testify

, documents related to Petitioner. W e review those decisions for a buse o f discretion. Curtin v

. Office of P ers. Mgmt.
, 846 F .2d 13 7 3, 1378 (F ed. Cir. 1988).

The administrative judg e g r anted a moti o n to c ompel discovery of all documents concerning Petitioner to and from the responsible manag ement o fficials during the relevantD U G G A N V

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period. To the ex tent that the discovery order d id not co ver every d o c u m e n t now in d ispute, the reason is that the witnesses whose documents were soug ht were not the responsible m anag ement witnesses. And none o f the

ex c luded witnesses w as a decision-maker with respect to the

c h a l l e n ge d p ersonnel actions ; n o n e i n f l u e n c e d t h e disciplinary

actions.

F inally

, Petitioner challenge s the administrative judg e’s ruling tha t d e nied discovery requests relating to similarly situated non-whistleblowing employ ees. B ut g ranting those discovery r e quests wou l d h ave resulted in a fruitless search for similarly situated employ ees; the uncontradicted evidence showed that t h ere w ere no other employ ees who were disciplined for the th i r d time for disrespectful o r insubordinate conduct.

According ly

, the administrative judg e d i d n o t abuse his discretion.

P etition DENIED.