Katherine L. Fleming v. Department of the Interior

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KATHERINE L. FLEMING, DOCKET NUMBER

Appellant, AT-1221-11-0460-B-2

v.

DEPARTMENT OF THE INTERIOR, DATE: September 22, 2015

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Katherine L. Fleming, Homestead, Florida, pro se.

Vicki V. Mott, Esquire, Atlanta, Georgia, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

which denied her request for corrective action in this individual right of action

(IRA) appeal. Generally, we grant petitions such as this one only when: the

remand initial decision contains erroneous findings of material fact; the remand

initial decision is based on an erroneous interpretation of statute or regulation or

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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the erroneous application of the law to the facts of the case; the judge’s rulings

during either the course of the appeal or the remand initial decision were not

consistent with required procedures or involved an abuse of discretion, and the

resulting error affected the outcome of the case; or new and material evidence or

legal argument is available that, despite the petitioner’s due diligence, was not

available when the record closed. See Title 5 of the Code of Federal

Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the

filings in this appeal, and based on the following points and authorities, we

conclude that the petitioner has not established any basis under section 1201.115

for granting the petition for review. Therefore, we DENY the petition for

review. Except as expressly MODIFIED by this Final Order to find that the

administrative judge took an overly restrictive view of the second factor set forth

in Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999),

we AFFIRM the remand initial decision.

BACKGROUND

¶2 Effective September 18, 2005, the agency appointed the appellant to a

GS-11 Museum Curator position with the agency’s National Park Service,

Everglades National Park (Everglades), for a term not to exceed October 17,

2006, subject to her completion of a 1-year trial period. Fleming v. Department

of the Interior, MSPB Docket No. AT-1221-11-0460-W-1, Initial Appeal File

(IAF), Tab 5, Subtab 4A. Effective June 24, 2006, the agency terminated the

appellant for unacceptable behavior and unsatisfactory performance. Id.,

Subtabs 4B-4C. After exhausting her administrative remedies with the Office of

Special Counsel, the appellant filed an IRA appeal and requested a hearing,

alleging that her termination was in retaliation for her protected whistleblowing

activity. IAF, Tab 1.

¶3 Without holding a hearing, the administrative judge issued an initial

decision that dismissed the appeal for lack of jurisdiction. IAF, Tab 16, Initial

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Decision. On review, the Board found that the appellant had met her burden of

showing that the Board has jurisdiction over her IRA appeal. Fleming v.

Department of the Interior, MSPB Docket No. AT-1221-11-0460-W-1, Remand

Order at 11 (Aug. 3, 2012) (W-1 Remand Order). Specifically, the Board found

that the appellant’s February 6, 2006 disclosure to her second-level supervisor

(who also was the deciding official in the termination action) that she and a

coworker had been exposed to toxic chemicals in October 2005, while painting

cannons at the Dry Tortugas National Park (Dry Tortugas), and that she had

suffered injuries, constituted a nonfrivolous allegation of a substantial and

specific danger to public health and safety. Id. at 8-9; IAF, Tab 15, Subtab 4O.

The Board further found that the appellant nonfrivolously alleged that this

disclosure was a contributing factor in the agency’s decision to terminate her

under the knowledge/timing test of 5 U.S.C. § 1221(e), because the disclosure

predated the appellant’s termination letter by more than 4 months and the

deciding official was clearly aware of the disclosure, as he was the recipient of

the memorandum in which the disclosure was made. W-1 Remand Order

at 10-11. Therefore, the Board vacated the initial decision and remanded the

appeal to the Atlanta Regional Office for a hearing and adjudication on the

merits. Id. at 11-12.

¶4 After a hearing on remand, the administrative judge issued a remand initial

decision denying the appellant’s request for corrective action. Fleming v.

Department of the Interior, MSPB Docket No. AT-1221-11-0460-B-1, Remand

File, Tab 16, Remand Initial Decision (B-1 RID). The administrative judge

found that the appellant failed to prove that she made a protected disclosure

because her February 6, 2006 disclosure revealed information that the deciding

official already knew. B-1 RID at 4. The administrative judge also found that,

assuming arguendo that the disclosure was protected and was a contributing

factor to the appellant’s termination, the agency proved by clear and convincing

evidence that it would have terminated the appellant during her probationary

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period even in the absence of the disclosure. B-1 RID at 4-6. In making this

finding, the administrative judge noted that the appellant challenged her

supervisor’s assertions regarding her performance and misconduct, but concluded

that it was not necessary for him to consider whether the appellant’s supervisor’s

criticisms of the appellant were correct because the issue in this appeal was the

deciding official’s state of mind and whether he would have terminated the

appellant in the absence of her alleged whistleblowing activity. B-1 RID at 5.

¶5 The Board granted the appellant’s petition for review, finding that, based

upon the Whistleblower Protection Enhancement Act of 2012, the appellant’s

February 6, 2006 disclosure was protected even though it revealed information

that the deciding official already knew. Fleming v. Department of the Interior,

MSPB Docket No. AT-1221-11-0460-B-1, Remand Order at 1, 4 (July 7, 2014)

(B-1 Remand Order). The Board also found that the administrative judge’s

analysis of the clear and convincing evidence issue did not comply with the

decision of the U.S. Court of Appeals for the Federal Circuit in Whitmore v.

Department of Labor, 680 F.3d 1353 (Fed. Cir. 2012). B-1 Remand Order at 6-7.

The Federal Circuit in Whitmore held that “[e]vidence only clearly and

convincingly supports a conclusion when it does so in the aggregate considering

all the pertinent evidence in the record, and despite the evidence that fairly

detracts from that conclusion.” Whitmore, 680 F.3d at 1368. The court further

determined that “[i]t is error for the [Board] to not evaluate all the pertinent

evidence in determining whether an element of a claim or defense has been

proven adequately.” Id.

¶6 The Board found that, pursuant to Whitmore, the administrative judge was

required to consider the appellant’s evidence and arguments that her supervisor’s

assertions about her performance and conduct were unreasonable, as well as any

other evidence that detracted from the agency’s claim that it terminated the

appellant’s employment based only on her performance, including evidence

pertaining to the existence and strength of a retaliatory motive by the agency.

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B-1 Remand Order at 7. Accordingly, the Board remanded the appeal again for a

new determination as to whether the agency proved that it would have terminated

the appellant even in the absence of her protected whistleblowing activity. Id.

The Board directed the administrative judge to reconsider the record as a whole

and make thoroughly-reasoned findings that address both the evidence

supporting his conclusions and the countervailing evidence. Id.

¶7 Following a hearing on remand, the administrative judge issued a remand

initial decision on November 21, 2014, denying the appellant’s request for

corrective action. Fleming v. Department of the Interior, MSPB Docket No.

AT-1221-11-0460-B-2, Remand File (B-2 RF), Tab 11, Remand Initial Decision

(B-2 RID) at 1-2, 7. The administrative judge found that the appellant

established that she made a protected disclosure and that her protected disclosure

was a contributing factor to her termination under the knowledge/timing test.

B-2 RID at 3. The administrative judge further found, however, that the agency

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

personnel action even in the absence of whistleblowing. B-2 RID at 6-7.

¶8 The appellant has filed a timely petition for review of the remand initial

decision. 2 Remand Petition for Review (RPFR) File, Tab 1. The agency has not

responded to the petition for review.

2

The appellant filed her petition for review on December 22, 2014. See Remand

Petition for Review (RPFR) File, Tab 1. By notice dated January 5, 2015, the Office of

the Clerk of the Board incorrectly informed the appellant that the initial decision was

issued on October 21, 2014, and that her petition for review was untimely filed because

it was not postmarked or received in the Clerk’s office on or before November 25,

2014, the 35th day following the issuance of the initial decision. RPFR File, Tab 2 at 1

(citing 5 C.F.R. § 1201.114(e)). As noted above, however, the remand initial decision

was issued on November 21, 2014. B-2 RID at 1. Thus, we find that the appellant’s

petition for review is timely. Given our determination that the petition for review was

timely filed, we need not rule on the appellant’s motion to accept her petition for

review as timely filed. RPFR File, Tab 3.

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ANALYSIS

¶9 In an IRA appeal, after establishing the Board’s jurisdiction, the appellant

then must establish a prima facie case of whistleblower retaliation by proving by

preponderant evidence that he made a protected disclosure that was a

contributing factor in a personnel action taken against him. 5 U.S.C.

§ 1221(e)(1); Mattil v. Department of State, 118 M.S.P.R. 662, ¶ 11 (2012). If

the appellant meets that burden, the Board shall order such corrective action as it

considers appropriate unless the agency shows by clear and convincing evidence

that it would have taken the same personnel action in the absence of the

protected disclosure. 5 U.S.C. § 1221(e)(1)-(2); Chambers v. Department of the

Interior, 116 M.S.P.R. 17, ¶ 12 (2011). 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; it is a higher standard than

the “preponderance of the evidence” standard. Sutton v. Department of

Justice, 94 M.S.P.R. 4, ¶ 18 (2003), aff’d, 97 F. App’x 322 (Fed. Cir. 2004); 5

C.F.R. § 1209.4(d).

¶10 The sole issue before the Board on review is whether the agency met its

burden of proving by clear and convincing evidence that it would have

terminated the appellant even in the absence of her whistleblowing. See B-2 RF,

Tab 5 at 3. In determining whether an agency has met this burden, the Board

will consider the following factors: (1) the strength of the agency’s evidence in

support of its action; (2) the existence and strength of any motive to retaliate on

the part of agency officials who were involved in the decision; and (3) any

evidence that the agency takes similar actions against employees who are not

whistleblowers but who are otherwise similarly situated. Carr, 185 F.3d at 1323.

The Board does not view these factors as discrete elements, each of which the

agency must prove by clear and convincing evidence. Rather, the Board will

weigh the factors together to determine whether the evidence is clear and

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convincing as a whole. Lu v. Department of Homeland Security, 122 M.S.P.R.

335, ¶ 7 (2015).

The strength of the agency evidence in support of the appellant’s termination.

¶11 Regarding the first Carr factor, the administrative judge found that the

agency showed that it had valid reasons to terminate the appellant during her

trial period. B-2 RID at 4. In making this finding, the administrative judge

considered the hearing testimony of the appellant’s immediate supervisor and the

deciding official regarding their reasons for terminating the appellant, as well as

the appellant’s arguments pertaining to this factor. B-2 RID at 4-5. The

administrative judge noted that the appellant’s supervisor testified that she had

serious concerns regarding both the appellant’s performance and conduct. B-2

RID at 4. In particular, she stated that the appellant did not listen to directions,

was unwilling to communicate with her about the status of her work, argued with

her, and failed to timely follow instructions. Id. In his hearing testimony, as

summarized in the remand initial decision, the deciding official stated that the

appellant’s supervisor began coming to him with her concerns regarding the

appellant almost immediately after she was hired, and that an experienced

archivist at another national park who reviewed the appellant’s work at his

request provided unfavorable feedback regarding her performance. B-2 RID at 5.

The deciding official also testified that he decided to remove the appellant

because her conduct and performance were unacceptable and threatened

Everglades’ ability to meet its goals. B-2 RID at 6.

¶12 Turning to the appellant’s arguments regarding the first Carr factor, 3 the

administrative judge noted that the appellant challenged her supervisor’s claims.

B-2 RID at 4. More specifically, the administrative judge stated that, although

the appellant acknowledged that she and her supervisor frequently discussed her

3

The remand initial decision does not indicate whether the administrative judge’s

analysis of the appellant’s arguments was based on her hearing testimony, her written

arguments, or both. See B-2 RID at 4.

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supervisor’s dissatisfaction with her performance, she denied having willfully

failed to follow her supervisor’s instructions. Id. Rather, the appellant

contended that her supervisor’s instructions were frequently unclear and

contradictory, as she would tell the appellant to do one thing and then, later, tell

her to do something entirely different. Id. The appellant claimed that if she

agreed with her supervisor, she was accused of condescension; however, if she

disagreed, she was accused of insubordination. Id.

¶13 The administrative judge found that the appellant’s supervisor had the right

to have her instructions followed even if the appellant disagreed with them. B-2

RID at 4-5. The administrative judge did not explicitly find that the appellant

failed to follow her supervisor’s instructions or make any explicit credibility

determinations. However, in light of his conclusion that the agency showed that

it had valid reasons to terminate the appellant, the administrative judge evidently

credited the testimony of the appellant’s supervisor and implicitly found that the

appellant failed to follow instructions. The appellant challenges this finding on

review, reiterating her argument that her supervisor’s instructions were

frequently unclear and contradictory. RPFR File, Tab 1 at 14. We find that this

argument constitutes mere disagreement with the administrative judge’s implied

finding that the appellant failed to follow instructions and, as such, provides no

basis for disturbing the initial decision. See Broughton v. Department of Health

& Human Services, 33 M.S.P.R. 357, 359 (1987).

¶14 The appellant also challenges the administrative judge’s implied credibility

findings on review, alleging that agency witnesses displayed numerous

inconsistencies, omissions, and misrepresentations in their testimony. RPFR

File, Tab 1 at 4. For example, the appellant alleges that her supervisor implied

that photographs of waste cans were taken during the 2005 Dry Tortugas project;

however, she claims they were actually taken at a later date. Id. at 4-5. The

appellant also asserts that her supervisor provided inconsistent statements

regarding the solvent that was used on cannons during the Dry Tortugas project,

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initially stating that toluene was used but subsequently testifying that xylene was

used. Id. at 5-6. We have reviewed the record and we discern no specific error

with the administrative judge’s credibility determinations. The Board must give

deference 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, and may overturn such determinations only when it has

“sufficiently sound” reasons for doing so. Haebe v. Department of

Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). The alleged discrepancies cited

by the appellant relate to minor matters and do not constitute sufficiently sound

reasons to disturb the administrative judge’s implied credibility findings. See

Hillen v. Department of the Army, 35 M.S.P.R. 453, 459 (1987) (determining that

inconsistent statements do not necessarily render a witness’s testimony

incredible).

¶15 Based on our review of the record, we find that the evidence in support of

the appellant’s termination was very strong. The agency’s reasons for

terminating the appellant are supported by testimony as well as documentation

showing that the agency’s concerns regarding the appellant’s conduct predated

her protected disclosure of February 6, 2006. In particular, as noted in the

remand initial decision, the appellant’s supervisor first approached the deciding

official regarding her concerns about the appellant’s conduct almost immediately

after she was hired. B-2 RID at 5; see IAF, Tab 15, Subtab 4M at 1. By

January 13, 2006, those concerns had escalated to the point that the appellant’s

supervisor sent the deciding official a memorandum asking to terminate the

appellant for misconduct. IAF, Tab 15, Subtab 4L at 1-2. With her

memorandum, the appellant’s supervisor submitted a lengthy document detailing

the appellant’s misconduct from early October until mid-January. 4 Id. at 3-13.

4

After discussions involving the deciding official and Everglades’ Deputy

Superintendent, the appellant’s supervisor issued the appellant a proposed 3-day

suspension on January 26, 2006, based on a charge of failure to follow supervisory

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¶16 Moreover, the deciding official did not rely solely on the opinions of the

appellant’s supervisor in deciding to terminate the appellant. As noted in the

remand initial decision, instead of simply accepting the appellant’s supervisor’s

opinions regarding the appellant’s conduct and performance, the deciding official

asked an experienced archivist at another national park to provide him with an

opinion regarding the appellant’s performance, and those findings were adverse

to the appellant. B-2 RID at 6; see IAF, Tab 5, Subtab 4F (stating that the

appellant was resistant to taking direction and imparting information). Notably,

the archivist expressed concern that, in light of the appellant’s slow rate of

progress on a project that she had been assigned, the project would not be

completed and the Everglades would lose funding. IAF, Tab 5, Subtab 4F. The

archivist’s written report strongly supports the agency’s decision to terminate the

appellant.

The existence and strength of any motive to retaliate on the part of agency

officials who were involved in the decision.

¶17 Turning to the second Carr factor, the administrative judge found that the

deciding official would have had no motive to retaliate against the appellant

based upon her disclosure. B-2 RID at 6. In support of this finding, the

administrative judge stated that, although the appellant’s supervisor and several

employees working on the Dry Tortugas project were subordinates of the

deciding official, neither the deciding official nor the appellant’s supervisor were

responsible for the project. Id. Rather, as the administrative judge correctly

found, the person responsible for the project was not under the command or

control of the Everglades. Id. In Whitmore, however, the court cautioned the

Board against taking an unduly dismissive and restrictive view of retaliatory

motive, holding that “[t]hose responsible for the agency’s performance overall

instructions, which was supported by seven specifications. See IAF, Tab 15, Subtab 4M

at 1, Subtabs 4N, 4S. By memorandum dated April 26, 2006, the deciding official

sustained four of the seven specifications and mitigated the proposed suspension to a

2-day suspension. Id., Subtab 4S.

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may well be motivated to retaliate even if they are not directly implicated by the

disclosures, and even if they do not know the whistleblower personally, as the

criticism reflects on them in their capacities as managers and employees.”

Whitmore, 680 F.3d at 1370.

¶18 We find the administrative judge erred in taking an overly restrictive view

of the second Carr factor. Although neither the deciding official nor the

appellant’s supervisor was directly implicated in the appellant’s disclosure, it

arguably reflected poorly on them in their capacity as managers, which is

sufficient to establish a retaliatory motive. See Chambers, 116 M.S.P.R. 17, ¶ 69

(finding motive to retaliate because the appellant’s disclosures reflected on the

responsible agency officials as representatives of the general institutional

interests of the agency). Thus, we find that there may have been some motive to

retaliate against the appellant for her protected disclosure.

Evidence that the agency takes similar actions against employees who are not

whistleblowers but who are otherwise similarly situated.

¶19 Regarding the third Carr factor, there is no evidence indicating that any

nonwhistleblowing comparator employees were treated differently than the

appellant. Therefore, this is not a significant factor for the Board’s analysis in

the instant appeal. See Whitmore, 680 F.3d at 1374 (noting that the agency is not

required to submit evidence as to each Carr factor, and recognizing that the

absence of evidence relating to the third Carr factor “can effectively remove that

factor from the analysis”).

¶20 Weighing the two remaining Carr factors against one another, we agree

with the administrative judge that the agency has met its burden of showing by

clear and convincing evidence that it would have terminated the appellant absent

her protected disclosure. See B-2 RID at 6-7. Although the agency officials

involved in the termination decision had some motive to retaliate, the agency had

a very strong basis to terminate the appellant because of her misconduct and poor

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performance. Therefore, we conclude that the administrative judge properly

denied the appellant’s request for corrective action. B-2 RID at 2, 7.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to

request review of this final decision by the United States Court of Appeals for the

Federal Circuit.

The court must receive your request for review no later than 60 calendar

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.

27, 2012). If you choose to file, be very careful to file on time. The court has

held that normally it does not have the authority to waive this statutory deadline

and that filings that do not comply with the deadline must be dismissed. See

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you want to request review of the Board’s decision concerning your

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge

the Board’s disposition of any other claims of prohibited personnel practices, you

may request review of this final decision by the United States Court of Appeals

for the Federal Circuit or any court of appeals of competent jurisdiction. The

court of appeals must receive your petition for review within 60 days after the

date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If

you choose to file, be very careful to file on time. You may choose to request

review of the Board’s decision in the United States Court of Appeals for the

Federal Circuit or any other court of appeals of competent jurisdiction, but not

both. Once you choose to seek review in one court of appeals, you may be

precluded from seeking review in any other court.

If you need further information about your right to appeal this decision to

court, you should refer to the Federal law that gives you this right. It is found in

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Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.

Dec. 27, 2012). You may read this law as well as other sections of the United

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.

Additional information about the United States Court of Appeals for the Federal

Circuit is available at the court's website, www.cafc.uscourts.gov. Of particular

relevance is the court's "Guide for Pro Se Petitioners and Appellants," which is

contained within the court's Rules of Practice, and Forms 5, 6, and 11.

Additional information about other courts of appeals can be found at their

respective websites, which can be accessed

through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

If you are interested in securing pro bono representation for an appeal to the

United States Court of Appeals for the Federal Circuit, you may visit our website

at http://www.mspb.gov/probono for information regarding pro bono

representation for Merit Systems Protection Board appellants before the Federal

Circuit. The Merit Systems Protection Board neither endorses the services

provided by any attorney nor warrants that any attorney will accept representation

in a given case.

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.