James A. Corriveau v. Department of the Navy

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JAMES A. CORRIVEAU, DOCKET NUMBER

Appellant, PH-1221-14-0377-W-1

v.

DEPARTMENT OF THE NAVY, DATE: September 4, 2015

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

James G. Noucas, Jr., Esquire, Portsmouth, New Hampshire, for the

appellant.

Debra M. Evans, Esquire, Norfolk, Virginia, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

REMAND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

denied his request for corrective action. For the reasons discussed below, we

GRANT the appellant’s petition for review, vacate the initial decision, and

1

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

2

REMAND the case to the regional office for further adjudication in accordance

with this Order.

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant is a Pipefitter, WG-10, at the agency’s Portsmouth Naval

Shipyard, Naval Facilities Engineering Command (NAVFAC). Initial Appeal File

(IAF), Tab 1 at 2. He filed this individual right of action (IRA) appeal asserting

that the agency took personnel actions against him, or failed to take certain

personnel actions, in retaliation for his whistleblowing. Id. On or about May 28,

2010, the appellant contacted the NAVFAC Headquarters Hotline and asserted

that he and other employees in the Public Works Department believed they were

experiencing “endless harassment” at the hands of their supervisors. IAF, Tab 49

at 17-19. Three days earlier, he and three of his colleagues signed a letter to U.S.

Senators Susan Collins and Olympia Snowe alleging that they were denied “high

pay”; 2 received a letter of reprimand for using a government vehicle to drive to an

on-site gym, 3 whereas other employees were not disciplined for similar conduct;

were denied “fill-in time,” i.e., the opportunity to serve as acting supervisors to

gain experience; and were not selected for several positions at the shipyard. Id.

at 33-36.

¶3 The agency held a June 15, 2010 meeting with the appellant and his

colleagues who signed the letter. Id. at 42. The meeting was attended by all four

signers, as well as C.M., a Labor Relations Specialist; R.G., Production Division

Manager; and C.R., Chief Steward. Id.; see IAF, Tab 15 at 11-12; Hearing

Compact Disc (HCD) (testimony of C.R.). On July 28, 2010, the appellant sent a

follow up letter to Senator Collins stating that nothing had been resolved at the

2

“High pay” is supplemental pay received for performing duties under hazardous

conditions. IAF, Tab 49 at 33.

3

IAF, Tab 49 at 241-43.

3

meeting because R.G., one of the subjects of the employees’ complaint, had been

in attendance. IAF, Tab 49 at 46.

¶4 The appellant filed a complaint with the Office of Special Counsel (OSC) in

mid-September 2010. IAF, Tab 4 at 20. He alleged that he: (1) received a letter

of reprimand for using a government vehicle to drive to an on-site gym, but had

not first been warned against doing so, and that the letter would remain in his file

for 2 years, even though he initially was told that it would remain there for

1 year; (2) was denied fill-in time; (3) was denied leadership training;

(4) received an illegal performance appraisal from R.G. on August 2, 2010; 4 and

(5) was told that R.G. stated on July 28, 2010, that the four June 15, 2010 meeting

participants had “a bullseye on their backs,” and that he intended to “get every

one of them.” IAF, Tab 1, Exhibit 6; IAF, Tab 4 at 34, Tab 49 at 291-92.

¶5 OSC advised the appellant on November 30, 2010, that it had terminated its

inquiry into his allegations and that he had the right to seek corrective action

from the Board within 65 days after the date of the letter. IAF, Tab 4 at 10. He

did not file a Board appeal at that time. Instead, he filed a Board appeal

challenging his nonselection for the position of Performance Assessment

Representative. See Corriveau v. Department of the Navy, MSPB Docket No.

PH-3443-10-0542-I-1, Initial Decision (Sept. 27, 2010) (hereinafter Corriveau I)

(located in IAF, Tab 4 at 11-15). The administrative judge issued an initial

decision dismissing the appeal on September 27, 2010, finding that the appellant

failed to allege any basis for the Board’s jurisdiction. Id. The appellant did not

seek review and so the initial decision became the Board’s final decision.

¶6 The appellant again contacted his elected representatives in

September 2012. He alleged he was passed over for selection for several

positions for which he applied because he asked for an investigation of certain

agency practices. IAF, Tab 49 at 52-53. He subsequently sent a similar letter by

4

The appellant alleged that the appraisal was illegal because R.G., and not his

immediate supervisor, completed it. IAF, Tab 4 at 34; see IAF, Tab 49 at 201-06.

4

email to Congresswoman Chellie Pingree, and he also recontacted Senator

Collins. Id. at 54-55.

¶7 The appellant filed a second complaint with OSC on March 21, 2013. IAF,

Tab 1 at 4. Therein, he named R.G. and J.W., Head of the Public Works

Department, as the responsible agency officials. Id. at 21. He included personnel

actions alleged in his 2010 complaint and also asserted that he: (1) was denied

training since February 2011; (2) applied for and was offered a Performance

Assessment Representative position, but declined the position because it was

temporary; and (3) was not selected for 16 positions between December 4, 2011,

and December 20, 2012. Id. at 38-40, 101-29. In a September 16, 2013 letter

responding to the complaint, OSC advised the appellant that it would “not revisit

the allegations and personnel actions that . . . [were] already analyzed in

connection with [his] prior complaint.” Id. at 11. In its September 30, 2013

letter closing the file, OSC stated that the personnel actions included in the

appellant’s complaint were nonselections for several promotion positions, 5 denial

of the opportunity to serve as an acting supervisor, and the agency’s failure to pay

him an on-the-spot award. Id. at 9. The appellant filed this appeal. IAF, Tab 1.

¶8 After a hearing, the administrative judge denied the appellant’s request for

corrective action. IAF, Tab 67, Initial Decision (ID) at 1, 16. She found that the

Board’s jurisdiction was limited to the issues raised for the first time in the 2013

OSC complaint because OSC declined to reconsider personnel actions that the

appellant raised in the 2010 complaint. ID at 5-6; see IAF, Tab 47 at 3. She

noted that the appellant failed to pursue his Board appeal rights for those matters

after OSC’s investigation ended. ID at 6; see IAF, Tab 47 at 3. She thus

concluded that he failed to exhaust OSC procedures when he reasserted those

5

OSC identified the following positions: Production Shop Planner, General

Maintenance Supervisor, Production Control, Engineering Technician, Utilities Billing

Analyst, Administrative Specialist, and Base Support Vehicles and Equipment Site

Director. IAF, Tab 1 at 9.

5

matters in 2013. ID at 5-6. She likewise found that the nonselection that was the

subject of Corriveau I was not properly before the Board, nor were any of the

nonselections he had grieved through negotiated grievance procedures. ID at 6;

see IAF, Tab 47 at 3. The administrative judge assumed for the sake of argument

that each of the appellant’s alleged whistleblowing disclosures met the legal

definition of a protected disclosure. 6 ID at 8-9. She found that the agency

produced credible evidence that the appellant was not eligible, or did not make

the certificate of eligibles, for any of the positions for which he alleged he had

not been selected in his 2013 complaint, with the exception of the Maintenance

Supervisor position filled in August 2012. ID at 9.

¶9 Next, the administrative judge found, regarding the appellant’s assertion

that he was not offered fill-in time, that no employee from his work group had

been granted that opportunity during the period in question. ID at 12. She also

found that, because he had chosen to grieve an incident where he had been denied

fill-in time, see IAF, Tab 4 at 8-9, the Board lacks jurisdiction over that matter,

ID at 13; see 5 U.S.C. § 7121(g). 7 She determined that, although the appellant

asserted in his 2010 OSC complaint that he was denied leadership training, he had

not enrolled in such training even when it was offered. ID at 13; see IAF, Tab 4

at 34, Tab 49 at 291. As for the on-the-spot award, she found that he eventually

received the disputed award and that the amount of the award had doubled during

the delay. ID at 13-14. She further concluded that the appellant failed to show

that his disclosures contributed to his nonselection or to R.G.’s failure to allow

him fill-in time. ID at 14-15. Finally, the administrative judge found that the

appellant did not show that R.G. had engaged in a pattern of harassing behavior,

6

The administrative judge also found, however, that one of the alleged protected

disclosures occurred after all of the alleged personnel actions took place, and thus could

not have been a contributing factor for any of those actions. ID at 9.

7

The administrative judge erroneously cited 5 U.S.C. § 7121(d), which pertains to

complaints that agency personnel committed prohibited personnel practices

encompassed under 5 U.S.C. § 2302(b)(1). ID at 6, 13.

6

as the appellant alleged. Id. The appellant filed the petition for review now

before the Board. Petition for Review (PFR) File, Tab 1.

Applicable Law

¶10 The Board may review an IRA appeal brought under the Whistleblower

Protection Act and the Whistleblower Protection Enhancement Act (WPEA) if the

appellant satisfies the jurisdictional requirements for bringing such an appeal.

See 5 U.S.C. §§ 1214(a)(3), 1221(a). The appellant must first prove that he has

exhausted his administrative remedies before OSC and then allege nonfrivolously

that: (1) he engaged in whistleblowing activity by making a protected disclosure;

and (2) the disclosure was a contributing factor in the agency’s decision to take or

fail to take a personnel action as defined by 5 U.S.C. § 2302(a). 5 U.S.C.

§ 1221(e)(1); Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed.

Cir. 2001). If he establishes jurisdiction, the Board will consider his appeal on

the merits and he will be required to prove the allegations by preponderant

evidence.

¶11 If he meets his burden of proof, then the burden shifts to the agency to

prove by clear and convincing evidence that it would have taken the same

personnel action in the absence of the disclosure. 5 U.S.C. § 1221(e)(2). To

consider properly whether the agency has met its burden of proof, the Board must

carefully weigh all of the evidence, including the evidence brought by the

appellant that would fairly detract from such a finding. Whitmore v. Department

of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012). The Board errs when it fails to

“evaluate all the pertinent evidence in determining whether an element of a claim

or defense has been proven adequately” because such omissions leave the

reviewing court too little basis upon which to decide whether substantial evidence

exists to support the Board’s judgment. Id. Here, we find that the administrative

judge’s analysis was insufficiently detailed to support appellate review.

7

Protected Disclosures and Personnel Actions

¶12 The list of protected disclosures and personnel actions before the Board was

affected by the appellant’s filing of an earlier complaint with OSC, a separate

Board appeal, and his grievances brought through negotiated grievance

procedures. Based on our review, it is difficult to ascertain from the initial

decision the definitive list of the appellant’s protected disclosures and the

administrative judge’s precise reasons for accepting or rejecting those

disclosures. ID at 5-6, 9. The administrative judge also assumed for the sake of

argument that the appellant’s hotline complaint and letters to his elected

representatives constituted protected disclosures. ID at 9. Additionally, she

offered a full analysis for the August 2012 nonselection, but did not do so for the

other claimed personnel actions. ID at 9-12.

¶13 On remand, the administrative judge thus must set forth the list of which

personnel actions are properly before the Board, specifically identifying which

actions are not being considered because they either were raised for the first time

in the 2010 OSC complaint, 8 covered by the appellant’s earlier Board appeal, or

addressed through negotiated grievance procedures. See ID at 5-6; IAF, Tab 47

at 3-4. For each remaining personnel action, the administrative judge should

make specific findings regarding whether the appellant established that the action

falls within the meaning of 5 U.S.C. § 2302(a)(2)(A).

¶14 The WPEA requires that the administrative judge must address whether the

appellant met his burden of proof before addressing whether the agency proved

8

The administrative judge concluded that the appellant failed to exhaust OSC

procedures when he reasserted, in his 2013 OSC complaint, matters already investigated

as a result of his 2010 complaint. ID at 5-6; IAF, Tab 47 at 2-3. The administrative

judge’s conclusions were consistent with OSC’s statement in its 2013 close out letter

that it would “not revisit the allegations and personnel actions that . . . [were] already

analyzed in connection with [his] prior complaint.” IAF, Tab 1 at 11. To the extent

that the appellant may have been seeking to file an IRA appeal based on his 2010

complaint, we would find such an appeal to be untimely filed. See 5 C.F.R.

§ 1209.5(a). The appellant also has not asserted that the doctrine of equitable tolling

should apply in his case and so we have not applied it. See 5 C.F.R. § 1209.5(b).

8

by clear and convincing evidence that it would have taken the same personnel

action(s) in the absence of the protected disclosure(s). Belyakov v. Department of

Health & Human Services, 120 M.S.P.R. 326, ¶ 7 n.3 (2013); see 5 U.S.C.

§ 1221(e)(2). For each disclosure that the appellant identified, the administrative

judge thus must make specific findings regarding whether he established that the

disclosure falls within the meaning of 5 U.S.C. § 2302(b)(8). In making such

findings, she must specify the date of each protected disclosure and personnel

action and determine if and when the alleged retaliating official learned of the

protected disclosure.

¶15 The administrative judge then must reexamine the contributing factor

evidence for this appeal, applying a proper knowledge-timing test for each

personnel action and protected disclosure at issue. See 5 U.S.C. § 1221(e)(1).

Regarding the timing prong, the appellant admits that the delay of 2 years and

2 months between the June 15, 2010 meeting and the August 2012 nonselection is

a lengthy one, but he contends that it is not excessively long given R.G.’s fairly

obvious retaliatory animus, as illustrated by the “bullseye” comment. PFR File,

Tab 1 at 18-19. He notes that R.G. was unrepentant about the remark during the

hearing and that the administrative judge minimized his other evidence of

retaliatory intent. Id. at 19-20. Although the administrative judge outlined in

detail the testimony substantiating R.G.’s account of the August 2012 selection

process, ID at 10-12, the delay between the June 2010 meeting and the selection

process may not be an excessive one. The Board has found the knowledge-timing

test to have been satisfied where the protected disclosures are between 1 and

2 years apart. Peterson v. Department of Veterans Affairs, 116 M.S.P.R. 113,

¶ 16 (2011).

¶16 Regarding the August 2012 nonselection, the administrative judge should

expressly consider whether the appellant established contributing factor under the

“cat’s paw” theory by establishing that the alleged retaliating official influenced

others involved in the contested personnel actions. See Aquino v. Department of

9

Homeland Security, 121 M.S.P.R. 35, ¶ 19 (2014) (citing Staub v. Proctor

Hospital, 562 U.S. 411, 415-16 (2011)). The appellant asserts that R.G. and

R.G.’s manager, J.W., the Head of the Public Works Department, controlled the

August 2012 selection process and made the hiring decision. PFR File, Tab 1

at 17. The appellant asserts that R.G. had actual knowledge of his protected

disclosures, including the knowledge he gained about those disclosures during the

June 15, 2010 meeting. Id.; see HCD (testimony of R.G.). J.W., the appellant

argues, also admitted to actual knowledge of the disclosures because he knew

about the congressional inquiries resulting from the disclosures. PFR File, Tab 1

at 17-18; see HCD (testimony of J.W.). The appellant further argues that, even if

J.W. lacked knowledge of his disclosures, R.G. controlled the selection process

and influenced J.W. PFR File, Tab 1 at 18.

¶17 For the personnel actions and protected disclosures that meet the

contributing factor criterion, the administrative judge then must determine

whether the agency showed by clear and convincing evidence that it would have

taken the same personnel actions in the absence of the disclosures. As the

appellant asserts, the administrative judge declined to make these findings below.

PFR File, Tab 1 at 20-25. The administrative judge should follow the guidance

set forth in Durr v. Department of Veterans Affairs, 119 M.S.P.R. 195, ¶¶ 7-15

(2013), wherein the Board remanded the appeal after finding that the

administrative judge did not fully address the appellant’s evidence and arguments

lending support to his claim that the agency failed to meet its burden of proof.

Credibility Findings

¶18 On review, the appellant also argues that the administrative judge failed to

make appropriate credibility findings, especially regarding testimony pertaining

to the agency’s retaliatory motive. If such findings had been made, he asserts, the

initial decision would have been decided differently. 9 PFR File, Tab 1 at 5. The

9

The appellant similarly contends that the testimony of D.L., the selectee for the

position of Maintenance Supervisor, was largely false because of “misrepresentations”

10

administrative judge found it more likely than not that, in July 2010, R.G.

exclaimed (in the presence of several witnesses) that the appellant and other

employees who signed the letter addressed to Senators Snowe and Collins had “a

bullseye on their backs.” ID at 14. She also found, however, that this single

statement was the appellant’s only evidence that R.G. harbored any animus

against him, and she concluded that the single comment did not establish a pattern

of harassment or threat of retaliation. ID at 14-15. R.G. denied that he made the

statement. HCD (testimony of R.G.). The administrative judge made no explicit

credibility findings regarding R.G.’s testimony, but significantly relied upon that

testimony when she found that the appellant failed to show that his disclosures

contributed to the personnel actions enumerated in his complaint. ID at 9-10,

12-14. The appellant contends that none of R.G.’s testimony should be

considered credible. PFR File, Tab 1 at 9-11.

¶19 The Board must defer to an administrative judge’s credibility

determinations when they are based, explicitly or implicitly, on the observation of

the demeanor of witnesses testifying at a hearing; the Board may overturn such

determinations only when it has “sufficiently sound” reasons for doing so. 10

Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) . Here, the

administrative judge did not address demeanor evidence in the initial decision.

Although credibility determinations may be based implicitly upon demeanor

evidence, 11 see id.; Little v. Department of Transportation, 112 M.S.P.R. 224, ¶ 4

he was alleged to have made on the résumé he submitted when he applied for that

vacancy. PFR File, Tab 1 at 11-12. On remand, the administrative judge should

address D.L.’s credibility and that of any other key witnesses.

10

“Sufficiently sound” reasons include findings that are incomplete, inconsistent with

the weight of the evidence, and do not reflect the record as a whole. Faucher v.

Department of the Air Force, 96 M.S.P.R. 203, ¶ 8 (2004).

11

We likewise acknowledge that a witness whose testimony is not credible for one

matter may provide credible testimony for another matter. Mitchell v. Department of

the Air Force, 91 M.S.P.R. 201, ¶ 10 (2002); see Baldwin v. Department of Veterans

Affairs, 111 M.S.P.R. 586, ¶ 23 (2009) (self-serving testimony and documentary

11

(2009) (recognizing that, where an administrative judge has heard live testimony,

her credibility determinations must be deemed to be at least implicitly based upon

the demeanor of the witnesses), the administrative judge here cited no reason why

she found R.G. to be a credible witness, see Hillen v. Department of the

Army, 35 M.S.P.R. 453, 458 (1987). In that respect, we find that the initial

decision is incomplete. See Spithaler v. Office of Personnel Management, 1

M.S.P.R. 587, 589 (1980) (holding that an initial decision must identify all

material issues of fact and law, summarize the evidence, resolve issues of

credibility, and include the administrative judge’s conclusions of law and his

legal reasoning, as well as the authorities on which that reasoning rests).

¶20 Additionally, we share the appellant’s concern regarding the administrative

judge’s finding that the “bullseye” comment, standing alone, was insufficient to

establish a pattern of harassment from which retaliatory animus could be inferred.

PFR File, Tab 1 at 13-16; ID at 14-15. Contrary to the administrative judge’s

finding, an appellant need not establish a full-blown “pattern” of harassment to

show retaliatory animus. See ID at 14-15. A single incident may have

compelling evidentiary value. Here, the context surrounding the “bullseye”

comment is especially troubling, considering the incendiary nature of the

comment itself, R.G.’s emphatic denial of having made the statement during his

hearing testimony, and the other witnesses’ testimony controverting his denial.

We further note that direct evidence of an agency official’s retaliatory intent is

typically unavailable because the official can simply deny having made any

retaliatory comments or having any retaliatory motive. See Whitmore, 680 F.3d

at 1372; Herman v. Department of Justice, 119 M.S.P.R. 642, ¶ 16 (2013).

Consequently, we find the administrative judge’s conclusion that the appellant

failed to show any retaliatory motive to be overly dismissive and contrary to the

Federal Circuit’s guidance in Whitmore for reviewing such evidence. See

evidence is entitled to weight and must be evaluated for credibility in the same manner

as all other testimony presented by the parties).

12

Whitmore, 680 F.3d at 1371-72 (remanding where the administrative judge failed

to consider blatant evidence of retaliatory motive on the part of agency officials

other than the proposing and deciding officials).

¶21 On remand, the administrative judge must reconsider the strength of the

agency’s motive to retaliate, examining the totality of the evidence presented in

this appeal. The administrative judge should especially consider the appellant’s

arguments in which he identifies a series of acts that began shortly after his initial

protected disclosure, including the letter of reprimand and the performance

appraisal conducted by R.G. a few days after the “bullseye” comment. See PFR

File, Tab 1 at 14-15. Should the administrative judge determine that the

appellant’s claims concerning these matters are true, for example, she should

make findings as to whether R.G. ever personally evaluated other employees that

he did not directly supervise who were not alleged whistleblowers.

¶22 Accordingly, we must vacate the initial decision and remand the appeal to

the regional office. On remand, the administrative judge must make further

findings regarding which personnel actions and protected disclosures are properly

before the Board and fully address the appellant’s arguments and evidence as to

those matters. In addition, if applicable, the administrative judge shall analyze

whether the agency proved by clear and convincing evidence that it would have

taken the same personnel action(s) in the absence of the disclosure(s). Because

the administrative judge held a hearing in the matter and correctly informed the

parties of their respective burdens of proof beforehand, we deem the record

complete. However, the administrative judge has the discretion to allow

additional discovery and a supplemental hearing prior to issuing a new initial

decision if she finds it necessary to do so for proper adjudication.

13

ORDER

For the reasons discussed above, we REMAND this case to the regional

office for further adjudication in accordance with this Remand Order.

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.