Benjamin Beerman v. Department of Transportation

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BENJAMIN BEERMAN, DOCKET NUMBER

Appellant, AT-0752-17-0720-I-1

v.

DEPARTMENT OF DATE: December 22, 2023

TRANSPORTATION,

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Adam Jerome Conti , Esquire, Atlanta, Georgia, for the appellant.

Ailya Zaidi , Atlanta, Georgia, for the agency.

Jack Foster Gilbert , Lakewood, Colorado, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

REMAND ORDER

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

affirmed his removal for failure to follow instructions. For the reasons discussed

below, we GRANT the appellant’s petition for review, VACATE the

administrative judge’s findings regarding the appellant’s whistleblower reprisal

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

affirmative defense, nexus, and penalty, and REMAND the case to the regional

office for further adjudication in accordance with this Remand Order.

BACKGROUND

Prior to the removal at issue in this appeal, the agency employed the

appellant as a Senior Structural Engineer, GS-14, with the Federal Highway

Administration (FHWA), Office of Technical Services, Resource Center. Initial

Appeal File (IAF), Tab 5 at 22, Tab 7 at 6, Tab 16 at 4. On Thursday, March 30,

2017, a bridge portion of Interstate 85 (I-85) in Atlanta, Georgia, collapsed as a

result of a fire. IAF, Tab 7 at 6. Senior FHWA officials, including the Acting

Administrator and Georgia Division Administrator, represented FHWA in

offering support to the Georgia Department of Transportation (GDOT). Id. Early

in the morning on Friday, March 31, 2017, the appellant offered to assist the

senior officials, and his supervisor emailed him to “please standby” and

instructed him to “let me and [the Director of the Office of Bridges and Structures

(Director)] know if your [sic] contacted by anyone for possible help on this

matter.” IAF, Tab 8 at 25-26. The appellant responded, “will do.” Id. at 25.

Later that day, without further communication with his supervisor, the appellant

went to the site of the bridge collapse. IAF, Tab 19, Hearing Compact Disc

(testimony of the appellant). Afterwards, he emailed photos of the site to the

GDOT state bridge engineer, the Director, his supervisor, and others. Id.; IAF,

Tab 8 at 32-33.

On the morning of Saturday, April 1, 2017, the appellant emailed the

GDOT state bridge engineer regarding his suggestion to repair the bridge using

the “in-fill” methodology and his estimate regarding the timeframe for completing

the repairs. IAF, Tab 8 at 46-49. He copied the FHWA Georgia Division

Administrator and a Georgia Division Structural Engineer (L.K.), but he did not

copy his supervisor. Id. at 46. Less than 2 hours later, his supervisor emailed

him stating the following:

3

Did someone ask you to go to the bridge site? If so, why didn’t you

tell me and [the Director] per my instructions provided earlier?

I am not sure what your involvement with this effort has been so far.

Please call me to discuss this on Monday. In the meantime, I don’t

want you to have any involvement with this effort without my

approval.

Id. at 36. The appellant responded that L.K. had asked him to go to the site and

that he had been providing technical assistance. Id. at 38.

On Sunday, April 2, 2017, the GDOT state bridge engineer forwarded the

appellant’s email regarding the in-fill method to the GDOT chief engineer, who

responded to the appellant’s email thanking him for his suggestions and

informing him that GDOT had determined that the best approach was to begin

construction of permanent replacement bridges. IAF, Tab 8 at 46. The appellant

emailed her to thank her for her consideration. Id. at 45. Shortly thereafter, he

sent her another email with a hand-written note attached apparently showing his

estimate for completing the bridge repair using the in-fill method. Id. at 44-45;

IAF, Tab 6 at 49. In the email, he stated the following:

I don’t mean to lean on you, but I’ll leave you w/ this “from the hip”

estimate. Of course there are other considerations to think of.

I’ll stay out of your way. If you need anything more, you have my

contact information.

IAF, Tab 8 at 44. The FHWA Georgia Division Administrator then emailed the

GDOT chief engineer to inform her that FHWA was in “full agreement with

GDOT’s approach to reopening I-85.” Id. at 50. That evening, the Georgia

Division Administrator called and emailed the appellant’s supervisor regarding

the appellant’s interference with their efforts to restore I-85 and asking him to

“direct [the appellant] to cease all communication with GDOT and members of

[his] staff.” Id. at 8, 41. The appellant’s supervisor then emailed the appellant

instructing him to “cease and desist your involvement with the i85 [sic] effort.

The Division don’t [sic] want your involvement with this project.” Id. at 42.

4

On May 30, 2017, the appellant’s supervisor proposed to remove him on

the basis of one charge of failure to follow instructions. IAF, Tab 7 at 6-12. The

agency set forth the following three specifications in support of the charge:

Specification 1: On March 31, 2017, you went to the I-85 bridge site

and involved yourself in the bridge event. Your conduct was in

direct opposition to the March 31 email instruction in that you did

not remain on standby and did not let me know that you were

contacted for help by [L.K.], Structural Engineer, Georgia Division.

[L.K.] is not in your supervisory succession and was not able to

override my instruction to you.

Specification 2: On April 1, you continued to involve yourself in the

bridge event without telling me first, as instructed, that you had been

contacted for help, or getting my approval before becoming involved.

Your conduct was in direct opposition to the March 31 and April 1

email instructions.

Specification 3: On April 2, you continued to involve yourself in the

bridge situation using email communication. This involvement was

in direct opposition to the March 31 and April 1 email instructions.

After being alerted to your continued involvement, I was prompted to

issue a third instruction for you to cease and desist.

Id. at 7. The appellant provided an oral and written response to the proposed

removal. IAF, Tab 5 at 33-87, Tab 6 at 4-259. In an August 7, 2017 decision, the

deciding official found that each specification was supported by preponderant

evidence and that removal was an appropriate penalty. IAF, Tab 5 at 23-32.

Thus, she removed the appellant, effective immediately. Id. at 23.

The appellant appealed his removal to the Board arguing that the charge

was not substantiated because L.K. asked him to go to the bridge collapse site,

“his response was an essential function of his official duties,” he made a good

faith effort to keep his supervisor apprised of his involvement, and no one asked

him to leave the bridge collapse site. IAF, Tab 1 at 6. He also argued that his

removal did not promote the efficiency of the service and that the penalty of

removal was unreasonable. Id. He further argued that his “professional advice

and counsel regarding the response to the catastrophe” constituted a

whistleblowing disclosure because he reported a gross waste of funds and a

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substantial and specific danger to public health and safety and that the agency

removed him in reprisal for this disclosure. Id.

In an order and summary of the prehearing conference, the administrative

judge indicated that he struck the appellant’s affirmative defense of

whistleblower reprisal because his alleged disclosure—namely, his suggestion to

GDOT and agency officials that the in-fill method would be faster and more

economical than their approach—was a policy recommendation rather than a

protected disclosure. IAF, Tab 17 at 3-4. He further found that any funds or

mismanagement would be on the part of the Georgia state government, rather than

the Federal Government. Id. at 4. The appellant objected to this ruling during

the prehearing conference and subsequently submitted a written objection. Id.;

IAF, Tab 18 at 4-6.

After holding the appellant’s requested hearing, the administrative judge

issued an initial decision affirming the removal action. IAF, Tab 21, Initial

Decision (ID). The appellant has filed a petition for review of the initial

decision, the agency has responded, and the appellant has replied. Petition for

Review (PFR) File, Tabs 1, 3-4.

ANALYSIS

The administrative judge properly sustained the charge.

As noted above, the agency charged the appellant with failure to follow

instructions supported by three specifications concerning his conduct in the

aftermath of the I-85 bridge collapse. IAF, Tab 7 at 6-12. To prove a charge of

failure to follow instructions, an agency must establish that the employee was

given proper instructions and that he failed to follow the instructions, without

regard to whether the failure was intentional or unintentional. Powell v. U.S.

Postal Service, 122 M.S.P.R. 60, ¶ 5 (2014). Here, the administrative judge

found that the agency proved specification 1, which concerned the appellant’s

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conduct on March 31, 2017, and specification 3, which concerned his conduct on

April 2, 2017, but did not prove specification 2. 2 ID at 7-10.

Regarding specification 1, the administrative judge credited L.K.’s hearing

testimony that he did not ask the appellant to go to the site of the bridge collapse

on March 31, 2017. ID at 5-6 (citing Hillen v. Department of the Army,

35 M.S.P.R. 453, 459-60 (1987)). Thus, the administrative judge found that the

appellant violated his supervisor’s instruction to “standby” when he went to the

bridge site that day on his own initiative. ID at 6-7. The administrative judge

further found that, even if L.K. did ask the appellant to come to the bridge site,

the appellant still disobeyed his supervisor’s instruction because he failed to

inform him that anyone contacted him for assistance. ID at 7. On review, the

appellant argues that the administrative judge erred in crediting L.K.’s testimony

that he did not ask him to go to the bridge site and, in any event, no one told him

not to go to the bridge site, he had a legitimate basis for going, and, if the

Georgia Division Administrator had truly been upset by his presence at the bridge

site, he should have asked him to leave. 3 PFR File, Tab 1 at 11-13. These

arguments are unavailing. First, the appellant’s mere disagreement with the

administrative judge’s credibility determination is insufficient to overturn it. See

2

In declining to sustain specification 2, the administrative judge found that there was

no evidence that the appellant engaged in actionable misconduct on April 1, 2017. ID

at 10. Neither party challenges this finding on review, and we therefore do not disturb

it.

3

In support of his contention that L.K. asked him to go to the bridge site on the

morning of March 31, 2017, the appellant submitted for the first time on review his

cellular phone statement showing, in relevant part, that he received a call at 8:10 a.m.

that morning. PFR File, Tab 1 at 23-98. The Board generally will not consider

evidence submitted for the first time on review unless the appellant shows the

following: (1) the documents and the information contained in the documents were

unavailable before the record closed despite due diligence; and (2) the evidence is of

sufficient weight to warrant an outcome different from that of the initial decision.

Cleaton v. Department of Justice, 122 M.S.P.R. 296, ¶ 7 (2015), aff’d, 839 F.3d 1126

(Fed. Cir. 2016); 5 C.F.R. § 1201.115(d). The appellant’s March/April cellular phone

statement is not a new document because it was available before the close of the record

below and it is not material because the fact of the call is not disputed. Thus, we do not

consider it.

7

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

that t he Board must defer to an administrative judge’s credibility determinations

when they are based, explicitly or implicitly, on observing the demeanor of

witnesses testifying at a hearing and may overturn such determinations only when

it has “sufficiently sound” reasons for doing so). In addition, as the

administrative judge correctly found, if L.K. did ask the appellant for help, he

failed to follow his supervisor’s instruction to let him know if anyone reached out

to him for assistance. ID at 6-7. Finally, the appellant’s belief that it was

appropriate for him to go to the bridge site on March 31, 2017, does not establish

that his supervisor’s instruction was not proper or that he followed it.

Accordingly, we find that the administrative judge properly sustained

specification 1.

Regarding specification 3, the administrative judge found that the appellant

failed to follow his supervisor’s April 1, 2017 instruction to not have any further

involvement with the bridge repair effort without prior approval when, on April 2,

2017, he emailed GDOT’s chief engineer. ID at 7-10; IAF, Tab 6 at 49, Tab 8

at 36, 44-45. The appellant argues that his response did not constitute “further

involvement” in the incident because he only transmitted a “previously compiled

cost estimate . . . [which] was a follow-up to his prior assessment,” he expressly

stated therein that his participation had ended, and his email constituted a

whistleblower disclosure. PFR File, Tab 1 at 10. These arguments, even if true,

do not establish that the administrative judge erred in finding that the appellant

failed to follow his supervisor’s April 1, 2017 instruction not to have “any

involvement with this effort without my approval” when, on April 2, 2017, he

emailed the GDOT chief engineer with his estimate for completing the bridge

repair and stated, “I don’t mean to lean on you, but I’ll leave you w/ this ‘from

the hip’ estimate.” IAF, Tab 6 at 49, Tab 8 at 39, 44-45. Thus, we find that the

administrative judge properly sustained specification 3.

8

In light of the foregoing, we find that the administrative judge correctly

found that the agency proved the charge. ID at 7-10; see Burroughs v.

Department of the Army, 918 F.2d 170, 172 (Fed. Cir. 1990) (stating that, when

more than one factual specification supports a single charge, proof of one or

more, but not all, of the supporting specifications is sufficient to sustain the

charge).

We remand the appellant’s affirmative defense of whistleblower reprisal for

notice and further adjudication.

Generally, in an adverse action appeal, an appellant’s claim of

whistleblower reprisal is treated as an affirmative defense. Campbell v.

Department of the Army, 123 M.S.P.R. 674, ¶ 11 (2016). In such appeals, once

the agency proves its adverse action case by a preponderance of the evidence, the

appellant must show by preponderant evidence that he engaged in whistleblowing

activity by making a protected disclosure under 5 U.S.C. § 2302(b)(8) and that

the disclosure was a contributing factor in the agency’s personnel action. 4 Id.;

5 C.F.R. § 1201.56(b)(2)(i)(C).

As noted above, the administrative judge struck the appellant’s

whistleblower reprisal affirmative defense at the prehearing conference on the

ground that he failed to nonfrivolously allege that he made a protected disclosure

within the meaning of the Whistleblower Protection Act. IAF, Tab 17 at 3-4.

The appellant objected to this ruling during the prehearing conference and

subsequently submitted a written objection arguing again that his

recommendations to GDOT and FHWA personnel that the in-fill method would

save time and money on bridge repair constituted a protected disclosure. Id. at 4;

IAF, Tab 18 at 4-6. He also argued in his written objection that his managers

perceived him to be a whistleblower because “they feared he would disclose to

outside parties at the incident site the Agency’s negligence in permitting the

4

Preponderant evidence is defined as the degree of relevant evidence that a reasonable

person, considering the record as a whole, would accept as sufficient to find that a

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

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storage of combustible materials as well as the existence of a skateboard under an

Interstate Highway.” IAF, Tab 18 at 6.

In the initial decision, the administrative judge considered the appellant’s

objection to his decision to strike the whistleblower affirmative defense but found

no merit to his contention that he made a protected disclosure. ID at 12-13. He

acknowledged the “perceived whistleblower” theory raised in the appellant’s

written objection to the prehearing order and summary but declined to consider it

because the appellant did not raise it in his prehearing submission or during the

prehearing conference and failed to show good cause as to why the additional

claim should be allowed. ID at 14 n.5. On review, the appellant argues that the

administrative judge erred in striking his whistleblower reprisal affirmative

defense prior to the hearing without providing him notice of his burden of proof

to establish this affirmative defense and by refusing to consider his perceived

whistleblower claim. PFR File, Tab 1 at 15-20. We agree.

The Board has consistently required administrative judges to apprise

appellants of the applicable burdens of proving a particular affirmative defense,

as well as the kind of evidence required to meet those burdens. Erkins v. U.S.

Postal Service, 108 M.S.P.R. 367, ¶ 8 (2008). When an administrative judge fails

to inform the parties of their burdens and methods of proof, the Board typically

remands the appeal so the administrative judge can afford such notice and an

opportunity to submit evidence and argument under the proper standard. Id.

Here, the administrative judge failed to provide the appellant notice regarding his

whistleblower reprisal affirmative defense. Accordingly, we vacate the

administrative judge’s findings regarding the appellant’s whistleblower reprisal

affirmative defense and remand this appeal for further adjudication.

On remand, the administrative judge shall inform the appellant of his

burden of proof regarding his whistleblower reprisal affirmative defense,

including his perceived whistleblower claim, and afford the parties an opportunity

to submit evidence and argument on these issues. If desired by the parties, the

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administrative judge shall hold a supplemental hearing. 5 See 5 U.S.C. § 7701(a)

(1). The administrative judge then must issue a new initial decision that

addresses the appellant’s affirmative defense and its effect on the outcome of the

appeal, if any.

An adverse action is sustainable only if the appellant cannot establish his

affirmative defenses. Hall v. Department of Transportation, 119 M.S.P.R. 180,

¶ 8 (2013), overruled on other grounds by Thurman v. U.S. Postal Service ,

2022 MSPB 21. Here, it would be premature for the Board to consider whether

there is a nexus between the appellant’s misconduct and the efficiency of the

service and whether the agency-imposed penalty is reasonable given that

additional adjudication of the appellant’s affirmative defense is required. Id.

Thus, we vacate the administrative judge’s findings regarding nexus and penalty.

However, if the appellant does not prevail on his affirmative defense on remand,

the administrative judge may incorporate into the new initial decision his original

findings with respect to the issues of nexus and the reasonableness of the penalty

of removal. Id.

5

Below, the administrative judge struck the appellant’s whistleblower reprisal

affirmative defense after the period for completing discovery had ended. IAF, Tabs 2,

17. It is within the administrative judge’s discretion whether or not to allow the parties

to conduct additional discovery on remand.

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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: ______________________________

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.