Rickel v. Navy

Case: 20-2147 Document: 47 Page: 1 Filed: 04/18/2022

United States Court of Appeals

for the Federal Circuit

______________________

DAVID A. RICKEL,

Petitioner

v.

DEPARTMENT OF THE NAVY,

Respondent

______________________

2020-2147

______________________

Petition for review of the Merit Systems Protection

Board in No. AT-1221-19-0576-W-1.

______________________

Decided: April 18, 2022

______________________

DONALD E. PINAUD, JR., Law Office of Don Pinaud, All

Florida Justice, LLC, Jacksonville, FL, argued for peti-

tioner.

ALISON VICKS, Commercial Litigation Branch, Civil Di-

vision, United States Department of Justice, Washington,

DC, argued for respondent. Also represented by BRIAN M.

BOYNTON, ALLISON KIDD-MILLER, ROBERT EDWARD

KIRSCHMAN, JR.

______________________

Before LOURIE, HUGHES, and CUNNINGHAM, Circuit

Judges.

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2 RICKEL v. NAVY

HUGHES, Circuit Judge.

David A. Rickel appeals a decision of the Merit Systems

Protection Board finding that the Department of the Navy

had proven by clear and convincing evidence that it would

have removed Mr. Rickel even absent his protected whis-

tleblowing activity. Because substantial evidence supports

the Board’s conclusion that the agency met its clear and

convincing burden, we affirm.

I

A

Mr. Rickel was a Fire Protection Specialist with the

First Coast Navy Fire and Emergency Services (Fire Ser-

vices) at Naval Air Station Jacksonville. In 2014, the De-

partment of Navy appointed him—in his role as Fire

Protection Specialist—to Assistant Chief of Training. In

this position, Mr. Rickel was responsible for determining

training requirements for the department, reviewing train-

ing records and charts, and ensuring that the Fire Services

firefighters’ certifications were maintained and current. He

was the only Fire Services employee assigned to the Fire

Services training department.

In late 2016, Mr. Rickel applied for the department’s

open Deputy Fire Chief position. Fire Chief Mark Brusoe

ultimately selected James Gray, an Assistant Chief of Op-

erations with the Fire Services. The agency promoted

Mr. Gray to Deputy Fire Chief. In an email sent to Chief

Brusoe, Mr. Rickel questioned the promotion and

Mr. Gray’s candor in his application, requesting infor-

mation about the selection process and “feedback concern-

ing his questions from the Executive Officers and from HR

personnel ‘so that [he] may be a better competitor in the

future.’” Appx8. He also “alleg[ed] that at least 5 unidenti-

fied candidates had been promoted to ‘upper level positions’

who lacked either credentials or other stated require-

ments” and “that unidentified lower level employees had

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RICKEL v. NAVY 3

failed to meet the minimum standards required for their

positions,” requesting that “a minimum requirement re-

view be conducted by a neutral third party” because “such

appointments pose[] a ‘life safety risk’ to the Navy, its ser-

vice members and their families,” and others. Appx8.

In April 2017, Deputy Chief Gray emailed Mr. Rickel

explaining that the department had taken a “big hit” on

training during the last inspection and suggesting that the

department begin addressing the concerns about its train-

ing program by getting the training records “up to speed.”

Appx10. Deputy Chief Gray shared a “Self Inspection

List”—which listed the minimum requirements for the

training records—and directed Mr. Rickel “to proceed as he

saw fit.” Appx10. In an email responding to Deputy

Chief Gray, Mr. Rickel tried to shift past and future re-

sponsibility away from himself by: questioning Deputy

Chief Gray’s authority as his supervisor; asserting that

Chief Brusoe, who was listed as his supervisor, had already

discussed those items with him; claiming that his position

as Assistant Chief of Training required him to review rec-

ords, not maintain them; disclaiming responsibility for the

inspection “hits” to their training program and blaming

such hits on supervisors’ failures; and contending that no

inspector had spoken with Mr. Rickel or asked him about

the training program. Appx10. Chief Brusoe informed

Mr. Rickel that Deputy Chief Gray was his first-level su-

pervisor and that Mr. Rickel’s position description would

be corrected to reflect that.

On June 15, 2017, Deputy Chief Gray instructed

Mr. Rickel to update the training records by July 15. In do-

ing so, Deputy Chief Gray provided Mr. Rickel with sup-

porting documentation to assure Mr. Rickel that such a

task was within his duties and job description as Assistant

Chief of Training. Mr. Rickel responded that the task was

outside the scope of his position. Still, he informed Deputy

Chief Gray that he would comply with the directive. About

a month and a half after his initial request, and about three

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4 RICKEL v. NAVY

weeks after the due date, Deputy Chief Gray requested a

progress update on August 3 and, having not received a re-

sponse, again on August 7, 2017. In response, Mr. Rickel

reiterated his disagreement that his job description encom-

passed maintenance of the training records and requested

a meeting with Deputy Chief Gray in the presence of a un-

ion representative. Three days later, on August 10, Captain

Michael Connor, the Executive Officer of Naval Air Station

Jacksonville at the time, 1 confirmed that the task was

within Mr. Rickel’s duties and responsibilities.

After discovering that the records were “all outdated,”

Chief Brusoe directed Mr. Rickel, in December 2018, to fix

the training records. Appx33–34. He “noted that there were

records for personnel that had ‘left years ago,’” provided in-

structions on specific updates that were needed, and di-

rected Mr. Rickel to complete the task by January 1, 2019.

Appx34. Deputy Chief Gray requested a progress update

from Mr. Rickel on January 25, 2019, over three weeks af-

ter the initial due date, reminding Mr. Rickel that the in-

spection team was due for a visit soon and that the

department wanted to avoid “a hit on something we can

have done before they get here.” Appx34. Receiving no re-

sponse, Deputy Chief Gray emailed Mr. Rickel on January

31, asking for a status report by close of business that day.

The next day, Mr. Rickel informed Deputy Chief Gray that

he had not completed the task.

During Mr. Rickel’s mid-year performance review on

February 13, 2019, Deputy Chief Gray pointed out that

Mr. Rickel had not completed certification packets and in-

formed him that personnel were concerned about having to

repeat classes or packages. Deputy Chief Gray reminded

1 Captain Brian Weiss replaced Captain Michael

Connor as the Executive Offer of Naval Air Station Jack-

sonville, and Captain Weiss was the deciding official in

Mr. Rickel’s case.

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RICKEL v. NAVY 5

him that this was part of his job description; it was his re-

sponsibility to monitor progress and to keep personnel in-

formed of their respective training timelines so that they

would not have to repeat a course. Mr. Rickel continued to

disagree.

Despite instructions from Chief Brusoe and Deputy

Chief Gray to update the training records, as of March 5,

2019, Mr. Rickel still had not completed the task. Deputy

Chief Gray informed him that he was taking the task away

from him and assigning it to himself. Deputy Chief Gray

documented, in a memorandum, the steps he took between

March 5 and March 25 to update the records, noting that it

only took about 16.5 hours to “get the folders done and in-

spection ready” and that he had updated the training rec-

ords “in addition to performing [his] duties as the Deputy

Chief.” Appx37.

Following this series of events, Chief Brusoe proposed

to remove Mr. Rickel from federal service for failure to fol-

low instructions. On June 7, 2019, Captain Brian Weiss,

the deciding official, issued his decision to remove

Mr. Rickel. The agency terminated him the next day.

B

Mr. Rickel filed an appeal with the Merit Systems Pro-

tection Board alleging that his removal was the result of

unlawful retaliation against him for his protected disclo-

sures. The Board found that the agency had proven by a

preponderance of the evidence that Mr. Rickel had failed to

follow instructions and that the penalty of removal, though

harsh, did not exceed the tolerable bounds of reasonable-

ness.

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6 RICKEL v. NAVY

The Board also found that Mr. Rickel had established

that he had engaged in protected whistleblowing activity 2

and that such activity was a contributing factor in the de-

cision to remove him. 3 But, according to the Board, the

agency had proven “by clear and convincing evidence that

it would have removed [Mr. Rickel] even in the absence of

his protected activity.” Appx78. In making this last finding,

the Board considered the three Carr factors:

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

of its action; (2) the existence and strength of any

2 Specifically, Mr. Rickel had established that he

had engaged in protected whistleblowing activity by “par-

ticipating in his IRA appeal” and “making protected disclo-

sures regarding the following matters”: (1) agency

managers allegedly violating HIPAA by requiring

Mr. Rickel to provide them with his personal information;

(2) the fire department allegedly “cheating” during evalua-

tion exercises; (3) Deputy Chief Gray allegedly falsifying

his resume by claiming experience that he did not have;

(4) Chief Brusoe, Deputy Chief Gray, and former Deputy

Chief James Sherer allegedly lacking the specialized expe-

rience to serve as Incident Commander during a shipboard

emergency; (5) Assistant Chief Tom Lyszkowski allegedly

being placed in an operational status before he had suffi-

ciently recovered to meet the physical requirements of his

position; and (6) the fire inspectors allegedly falsified build-

ing inspection reports being submitted. See Appx46–73.

3 Specifically, Mr. Rickel established the following

protected whistleblowing activity met the knowledge/tim-

ing test and was more likely than not a contributing factor

in the decision to remove him: (1) Mr. Rickel’s IRA appeal,

(2) his HIPAA-related disclosures, (3) his disclosures re-

garding the fire department “cheating,” and (4) his disclo-

sures regarding Deputy Chief Gray falsifying his resume.

See Appx74–78.

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RICKEL v. NAVY 7

motive to retaliate on the part of the agency’s offi-

cials who were involved in the decision; and (3) any

evidence that the agency takes similar action

against employees who did not engage in protected

activity but who are otherwise similarly situated.

Appx79 (citing Carr v. Soc. Sec. Admin., 185 F.3d 1318,

1323 (Fed. Cir. 1999)).

Regarding Carr factor one, the Board found that “the

agency presented strong evidence in support of its action.”

Appx79. The Board iterated that “the record clearly estab-

lished that [Chief] Brusoe properly directed [Mr. Rickel] to

fix the department’s training records by a particular date,

that the assigned task squarely fell within the duties and

responsibilities of [Mr. Rickel’s] position despite his ada-

mant insistence to the contrary, and, even if the excuses

[Mr. Rickel] offered might be viewed as justifying his fail-

ure to complete the task by the original date [Chief] Brusoe

set, [Mr. Rickel] had not completed updating the depart-

ment’s training records in the 2 months after that date

passed.” Appx79. The Board further noted that, “while the

penalty the agency imposed was undoubtedly harsh, the

primary basis for [Captain] Weiss’s decision to impose the

penalty of removal, [i.e., Mr. Rickel’s] failure to demon-

strate rehabilitative potential by acknowledging his mis-

conduct, expressing contrition, or accepting any

responsibility for his failure, [was] also well-supported by

the record.” Appx79–80. Thus, the Board decided, “the

strength of the agency’s evidence in support of its action

weigh[ed] heavily in the agency’s favor.” Appx80.

Regarding Carr factor two, the Board found “that [Cap-

tain] Weiss had only a weak motive to retaliate against

[Mr. Rickel], and that while [Chief] Brusoe had a some-

what stronger motive to retaliate against [Mr. Rickel] on

the basis of his protected whistleblowing activity, even

[Chief] Brusoe’s motive to retaliate was tempered by the

fact that he did not suffer any significant adverse

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8 RICKEL v. NAVY

consequences as a result of [Mr. Rickel’s] protected activ-

ity.” Appx82.

Regarding Carr factor three, the Board observed that

“[t]he record contains very little evidence pertinent to [this]

factor, i.e., any evidence that the agency takes similar ac-

tions against employees who did not engage in protected

activity but who are otherwise similarly situated.” Appx82.

According to the Board, the agency did not present any ev-

idence suggesting that “it had ever disciplined a similarly

situated fire department employee who was not a whistle-

blower. At best, during questioning by agency counsel,

[Mr. Rickel] conceded that the agency had not removed an-

other whistleblower who was an employee of the fire de-

partment.” Appx82. But, as the Board stated, “the relevant

comparison is between the whistleblowing-appellant and a

similarly situated non-whistleblower,” not a comparison

between two whistleblowers. Appx82. The Board thus

found Mr. Rickel’s concession irrelevant.

Although Mr. Rickel “identified numerous incidents

during which unnamed fire department employees alleg-

edly committed misconduct for which they allegedly re-

ceived no punishment,” the Board found that:

(1) Mr. Rickel was not “in a position to know whether any

particular employee received discipline for any particular

act of misconduct”; (2) it was not clear “whether these un-

named employees were whistleblowers or not” or whether

Mr. Rickel “would have been in a position to know whether

any of these employees had engaged in whistleblowing ac-

tivity”; and (3) “none of the incidents [Mr. Rickel] described

involved an employee who failed to follow a supervisor’s in-

structions with respect to performing a particular duty en-

compassed within the responsibilities of that employee’s

position.” Appx83. The Board accordingly found “that the

incidents [Mr. Rickel] identified” do not support or estab-

lish that he “was treated more harshly than a similarly-

situated non-whistleblower.” Appx83–84.

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RICKEL v. NAVY 9

The Board ultimately “conclude[d] that neither party

has offered evidence relevant to the third Carr factor” and

that, “[i]n accordance with Whitmore,” it was “appropriate

to remove consideration of the third Carr factor in this

case.” Appx84 (citing Whitmore v. Dep’t of Lab., 680 F.3d

1353, 1374 (Fed. Cir. 2012)). The Board further concluded

that, “given the strength of the agency’s evidence in sup-

port of its action against [Mr. Rickel] and the relative

weakness of any motive to retaliate against [him], particu-

larly with respect to the decision-maker, [Captain] Weiss,”

the agency had “carried its burden of presenting clear and

convincing evidence that it would have removed

[Mr. Rickel] even in the absence of his protected whistle-

blowing activity.” Appx84.

Mr. Rickel timely petitioned for review. We have juris-

diction pursuant to 28 U.S.C. § 1295(a)(9).

II

“The scope of our review of a decision of the Board is

limited.” Carr, 185 F.3d at 1321. By statute, we set aside

the judgment of the Board only if the decision is “(1) arbi-

trary, capricious, an abuse of discretion, or otherwise not

in accordance with law; (2) obtained without procedures re-

quired by law, rule, or regulation having been followed; or

(3) unsupported by substantial evidence.” 5 U.S.C.

§ 7703(c).

III

5 U.S.C. § 2302(b)(8) prohibits an agency from penaliz-

ing its employees for whistleblowing. “An employee who be-

lieves he has been subjected to illegal retaliation must

prove by a preponderance of the evidence that he made a

protected disclosure that contributed to the agency’s action

against him.” Smith v. GSA, 930 F.3d 1359, 1365 (Fed. Cir.

2019). “If the employee establishes this prima facie case of

reprisal for whistleblowing, the burden of persuasion shifts

to the agency to show by clear and convincing evidence that

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10 RICKEL v. NAVY

it would have taken ‘the same personnel action in the ab-

sence of such disclosure,’ which we sometimes refer to as a

showing of ‘independent causation.’” Miller v. DOJ,

842 F.3d 1252, 1257 (Fed. Cir. 2016) (citations omitted). In

determining whether the agency has carried its burden,

the Board considers the three nonexclusive Carr factors.

See Carr, 185 F.3d at 1323.

Here, Mr. Rickel concedes that the agency “sufficiently

proved that [he had] failed to follow instructions” and “that

the penalty of removal did not exceed the tolerable bounds

of reasonableness.” Appellant’s Br. 13–14. He also “does

not contest that as to the first Carr factor, ‘the strength of

the [a]gency’s evidence in support of removal,’ the [a]gency

presented substantial evidence that this factor weigh[s] in

favor of the [a]gency meeting its burden.” Id. at 27–28 (ci-

tation omitted). Nor does he take issue with the Board’s

findings as to the second Carr factor—i.e., “that [Captain]

Weiss had a ‘weak’ motive to improperly retaliate against

him” or that Chief Brusoe “had a ‘stronger’ motive [than

Captain Weiss] to do so.” Id. at 28. Rather, Mr. Rickel chal-

lenges only the Board’s application of the third Carr factor.

A

Mr. Rickel first contends that the Board failed to con-

sider Captain Weiss’s testimony and therefore improperly

disregarded evidence relevant to Carr factor three. Cap-

tain Weiss had testified that: (1) before Mr. Rickel, he had

not terminated an employee for one charge of failure to fol-

low instructions during approximately 23 years of his 25-

year naval career; and (2) he “was not . . . aware of any

other supervisor ever terminating an employee at the GS-

11 Level (like [Mr.] Rickel) for a single charge of failure to

follow instructions.” Appellant’s Br. 18 (emphasis omitted).

Mr. Rickel asserts that this testimony should have been

treated as “evidence of how the [a]gency has treated other

employees charged with a single count of failure to follow

instructions” and that it “was reversible error” not to

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RICKEL v. NAVY 11

consider this testimony because Carr requires the Board

“to consider all evidence when evaluating and applying the

three prong test.” Id. at 21. We disagree.

Under Carr factor three, the Board “examines the

agency’s treatment of non-whistleblower employees ac-

cused of similar misconduct.” Siler v. EPA, 908 F.3d 1291,

1299 (Fed. Cir. 2018). “The third Carr factor looks at ‘any

evidence that the agency takes similar actions against em-

ployees who are not whistleblowers but who are otherwise

similarly situated.’” Id. (quoting Miller, 842 F.3d at 1262).

Here, Captain Weiss’s testimony does not address or iden-

tify any employee who engaged in misconduct similar to

Mr. Rickel’s. Rather, Captain Weiss testified that he was

unaware of an employee who had engaged in similar con-

duct and whom the agency had terminated. In the absence

of other record evidence, such testimony suggests only that

there is no record evidence regarding whether the agency

has taken similar actions with respect to employees who

are not whistleblowers but who are otherwise similarly sit-

uated. See Ingram v. Dep’t of the Army, 777 F. App’x 980,

983–84 (Fed. Cir. 2019) (“Though the absence of evidence

regarding similarly situated employees cannot favor the

government, ‘the absence of any evidence relating to Carr

factor three can effectively remove that factor from the

analysis.’” (quoting Whitmore, 680 F.3d at 1374) (citing

Siler, 908 F.3d at 1299)).

Moreover, “[f]or an employee to be considered similarly

situated to an individual who is disciplined, it must be

shown that the conduct and the circumstances surrounding

the conduct of the comparison employee are similar to those

of the disciplined individual.” Carr, 185 F.3d at 1326–27

(emphasis added). So, here, there would need to be some

evidence tying Captain Weiss’s testimony to an actual em-

ployee and, more specifically, to a comparison employee

that had engaged in misconduct similar to Mr. Rickel’s.

Even if Captain Weiss’s testimony did suggest that no em-

ployee has been disciplined in a similar manner to

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12 RICKEL v. NAVY

Mr. Rickel, this does not lay the foundation for establishing

that a comparison employee exists. See Whitmore, 680 F.3d

at 1373–74 (“Differences in kind and degrees of conduct be-

tween otherwise similarly situated persons within an

agency can and should be accounted for to arrive at a well

reasoned conclusion regarding Carr factor three, particu-

larly where, as here, there was only a single person in the

record for which a comparison can be made . . . .”). And no

such evidence otherwise exists in the record.

B

Mr. Rickel also argues that, “[i]n a case such as this,

where all officials involved in removal are found to have to

some extent an improper motive to remove the employee,

and at least one has a ‘stronger’ improper motive[,] . . . jus-

tice and a furtherance of the intent of Congress requires

that an agency provide some degree of evidence as to Carr

factor three, not that it be wholly ignored.” Appellant’s

Br. 22. In other words, Mr. Rickel asserts that we “should

create a bright-line rule” requiring the agency to “produce[]

some evidence in support of Carr factor three” to meet its

burden in removal cases where the Board finds that there

is “some motivation to retaliate against the [removed] em-

ployee, and one or more [of the decision makers] has more

than a ‘weak’ motive.” Id. We decline to do so.

The third Carr factor is one of “three nonexclusive fac-

tors” the Board considers when evaluating whether an

agency has “show[n] by clear and convincing evidence that

it would have taken ‘the same personnel action in the ab-

sence of [a protected] disclosure.” Smith, 930 F.3d at 1365

(citation omitted); see also 5 U.S.C. § 1221(e)(2). These “fac-

tors are merely appropriate and pertinent considerations

for determining whether the agency” has carried this bur-

den. Whitmore, 680 F.3d at 1374. But, as we have repeat-

edly explained, “Carr imposes no affirmative burden on the

agency to produce evidence for each of the three factors.”

Smith, 930 F.3d at 1366; see also Staley v. Dep’t of Veterans

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RICKEL v. NAVY 13

Affs., No. 2020-2127, 2021 WL 2965007, at *2 (Fed. Cir.

July 15, 2021) (“An agency is not required to produce evi-

dence with respect to each and every one of these factors.”).

The proper inquiry still remains whether the agency would

have taken the same action, absent the whistleblowing. See

Smith, 930 F.3d at 1366; Miller, 842 F.3d at 1257 (“The is-

sue . . . is whether substantial evidence supports the

Board’s determination that the [agency] showed independ-

ent causation by clear and convincing evidence.”); Ingram,

777 F. App’x at 983 (“Carr does not require that each of the

three factors individually weigh in favor of the agency.”).

Indeed, we have repeatedly stated that the agency “need

not produce evidence with regard to each of the[] factors,

nor must each factor weigh in favor of the agency for [it] to

carry its burden.” Robinson v. Dep’t of Veterans Affs., 923

F.3d 1004, 1018–19 (Fed. Cir. 2019).

While we have said that “the Board cannot ignore rec-

ord evidence relevant to the existence and strength of any

motive to retaliate or the treatment of similar employees,”

Smith, 930 F.3d at 1366, what Mr. Rickel requests—with

his bright-line rule proposal—is that we enhance an

agency’s burden of production with respect to Carr factor

three in all removal cases where Carr factor two nominally

favors the employee. Mr. Rickel would have us review the

Board’s findings with respect to each Carr factor inde-

pendently and then apply a different standard if the evi-

dence for Carr factor two favors the employee and if there

is no evidence pertinent to Carr factor three. 4 But we have

4 In doing so, Mr. Rickel ignores the Board’s express

observation that Chief “Brusoe’s motive to retaliate was

tempered by the fact that he did not suffer any significant

adverse consequences as a result of [Mr. Rickel’s] protected

activity.” Appx82; see Amirmokri v. DOE, 310 F. App’x 410,

414 (Fed. Cir. 2009) (“[T]he Board’s determination that the

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14 RICKEL v. NAVY

said that “the absence of any evidence relating to Carr fac-

tor three can effectively remove that factor from the analy-

sis.” Whitmore, 680 F.3d at 1374; see Ingram, 777 F. App’x

at 983–84 (“Though the absence of evidence regarding sim-

ilarly situated employees cannot favor the government, ‘the

absence of any evidence related to Carr factor three can ef-

fectively remove that factor from the analysis.’” (citation

omitted)). Because the agency need not prove every factor

weighs in its favor, the absence of evidence related to Carr

factor three is not fatal to the agency.

We instead “consider the record as a whole and balance

the Carr factors to determine whether substantial evidence

supports the Board’s finding that the [agency] clearly and

convincingly proved it would have removed [the employee]

independent of his protected disclosures.” Robinson, 923

F.3d at 1019; see also Ingram, 777 F. App’x at 984 (“The

lack of evidence on the third Carr factor appears neutral,

and we hold substantial evidence supports the AJ’s finding

that the evidence supporting the first two Carr factors car-

ries the Army’s burden.”). And our consideration of Carr

factors one and two should not transform the Board’s three-

factor balancing test into a production requirement for the

agency with respect to Carr factor three simply because

Carr factor two weighs nominally in the employee’s favor.

Thus, while it is true that “the absence of any evidence con-

cerning Carr factor three may well cause the agency to fail

its case overall,” it will not necessarily do so. Whitmore, 680

F.3d at 1374; Siler, 980 F.3d at 1299.

Deputy Director of Nuclear Operations had little or no mo-

tive to retaliate was amply supported by evidence that the

supervisor had suffered no adverse consequences from

Mr. Amirmokri’s protected disclosures.”).

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RICKEL v. NAVY 15

IV

It is not for this court to reweigh evidence on appeal.

Substantial evidence supports the Board’s conclusion that

the agency met its clear and convincing burden, particu-

larly when “considering the evidence in the aggregate, in-

cluding the strength of Carr factor one.” Robinson, 923

F.3d at 1020.

AFFIRMED

No costs.