Chloe Huang v. Usdhs ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 15 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHLOE HUANG, No. 20-70242
Petitioner, MSPB No.
SF-1221-19-0228-W-1
v.
U.S. DEPARTMENT OF HOMELAND MEMORANDUM*
SECURITY,
Respondent.
On Petition for Review of an Order of the
Merits Systems Protection Board
Submitted January 13, 2021**
San Francisco, California
Before: BEA and M. SMITH, Circuit Judges, and RESTANI,*** Judge.
Chloe Huang petitions for review of the Merit Systems Protection Board
(“Board”)’s ruling denying her Whistleblower Protection Act complaint, which
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
sought to overturn a fourteen-day suspension imposed by her employer, the
Department of Homeland Security (“DHS”). We have jurisdiction under 5 U.S.C.
§ 7703(b)(1)(B). We deny the petition.
Huang was placed on two Performance Improvement Plans (“PIPs”) in quick
succession from 2017 to 2018. During the second PIP, she sent her supervisor
Matthew Loghry three emails in which she complained that he was improperly
administering her PIP, told Loghry she would be “making a whistleblower
complaint,” and threatened Loghry to “drop the PIP” or she “will sue” and “more
likely than not, I’ll win, and you’ll get fired.” DHS suspended Huang for fourteen
days with the specification that her conduct was unbecoming of a law enforcement
officer.
Huang filed a complaint with the Office of Special Counsel (“OSC”) seeking
corrective action based on the Whistleblower Protection Act. See 5 U.S.C. § 1221.
The OSC found no evidence of retaliation and Huang filed an individual right of
action appeal with the Board. The Board found Huang alleged a prima facie case of
whistleblower retaliation based on DHS’s perception of Huang as a whistleblower.
However, the Board ultimately denied Huang corrective action after it found DHS
had shown by clear and convincing evidence that DHS would have suspended Huang
even absent its perception of Huang as a whistleblower. Huang’s appeal is limited
to this last finding.
2
In reviewing a Board decision concerning a whistleblower retaliation claim,
we “must set aside the Board’s decision on the merits if it is: ‘(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; (2)
obtained without procedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.’”1 Duggan v. Dep’t of
Defense, 883 F.3d 842, 843 (9th Cir. 2018) (quoting 5 U.S.C. § 7703(c)).
“Substantial evidence in this context is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Id. at 846 (internal quotation
marks and citation omitted).
In determining whether an agency would have made the same employment
action absent the protected activity, we consider three factors: “(1) the strength of
the agency’s evidence in support of the action taken; (2) the existence and strength
of any motive to retaliate on the part of the decision-makers; and (3) any evidence
that the agency takes similar actions against similarly situated employees who are
not whistleblowers.” Duggan, 883 F.3d at 846 (internal quotation marks omitted)
(quoting and adopting the Federal Circuit’s test in Carr v. Social Security
Administration, 185 F.3d 1318 (Fed. Cir. 1999)).
1
Huang does not claim the Board’s decision was arbitrary or capricious or that there
was a procedural violation. Her only claim is that the Board lacked substantial
evidence to support its finding that DHS would have suspended Huang even absent
its perception of her as a whistleblower.
3
1. The Board did not err in assessing the strength of the agency’s evidence
in support of suspension. Huang argues her emails were not sufficiently threatening
to warrant a suspension and that the Board reviewed her emails in a vacuum. Our
role is not to reweigh the evidence but to assess whether the Board’s conclusion was
supported by substantial evidence. See Bieber v. Dep’t of Army, 287 F.3d 1358,
1364 (Fed. Cir. 2002). It was.
All decision-makers for the DHS credibly testified that they believed the email
was disruptive and inhibitory to effective workplace management. The abrasive tone
of Huang’s emails and unmistakable personal threat against Loghry inarguably
invite legitimate disciplinary action by the agency. See Duggan, 883 F.3d at 846–
47 (“[A]n employee may be disciplined for the way in which he or she communicates
a protected disclosure. . . . [T]he Board permissibly concluded that the . . . email
conveyed a nasty and condescending tone that went well beyond mere bluntness or
a critique of management practices. Accordingly, the first Carr factor supports the
Board’s decision.” (emphasis omitted)).
Huang’s attempt to compare her extortionate email—which she warned
Loghry not to share with anyone—to an attorney demand letter or settlement offer
is farfetched. Huang was attempting to coerce Loghry into dropping the PIP, not
because of her own improved performance, but because Loghry should be fearful
that she would sue and he would lose his job. She does not explain which public or
4
private right she was attempting to vindicate by complaining to Loghry about his
administration of her PIP. Indeed, the Board found her emails to Loghry not even
to be legitimate whistleblower complaints, a finding she does not contest. Nor did
Huang show that it was a usual or accepted course of conduct at DHS to resolve
internal workplace disagreements through furtive, personal threats of litigation.
Huang’s second argument is that the Board reviewed the June 28 email in a
vacuum, failing to consider the full record including, for example, that Huang was
required to complete two PIPs within forty-three days of each other, which was
stressful for her. Huang does not adequately demonstrate that the Board did not take
these factors into consideration, but even if she had, it is not apparent why any of
these factors are particularly relevant to whether DHS viewed Huang’s threatening
emails as an adequate basis for a two-week suspension.
2. Neither did the Board err in finding little to no credible record evidence
of retaliatory animus. On appeal, Huang argues only that an inconsistency in DHS
deciding official Jerry Templet’s testimony shows DHS did treat her differently due
to her protected whistleblowing activity.
At the hearing before the Board, when asked whether Templet’s decision to
sustain Huang’s suspension would have been affected if he had received
confirmation that Huang had engaged in whistleblowing, he stated “[a]bsolutely it
would have.” It is unclear how exactly Templet’s decision would have been affected
5
if he had received confirmation of Huang’s whistleblower status. However,
Templet, whom the Board found credible, had moments prior stated he would “come
to her aid” had he thought she had been a whistleblower. And, immediately after,
Templet was asked directly: “assuming that she was a whistleblower, would you
have retaliated against her for that fact?” to which he responded “No.” The Board
interpreted Templet’s testimony as meaning he “would have ensured that she
received whistleblower protection had he been aware of any actual whistleblowing
on her part.”
An administrative judge’s interpretation of ambiguous testimony or evidence
must be rational and based on substantial evidence. See Burch v. Barnhart, 400 F.3d
676, 680–81 (9th Cir. 2005). Given the context of the statement, it would be strained
to interpret Templet as admitting he would have treated Huang worse if he knew of
her whistleblowing. Huang’s interpretation runs counter to the balance of the record,
which shows Templet had no personal relationship or animosity toward Huang,
Templet was not implicated in Huang’s threat or whistleblower complaint, and that
both Slade and DAAP independently concluded the email was extortionate and
recommended disciplinary action. The administrative judge’s interpretation was
rational and Huang points to no other record evidence supporting her interpretation.
6
3. The third Carr factor did not play any role in the Board’s analysis
because DHS failed to uncover similar situations of employees who were not
whistleblowers who received similar punishment.
4. After considering the whole record and the three Carr factors, the
Board found that DHS showed by clear and convincing evidence that it would have
suspended Huang for fourteen days regardless of DHS’s perception of her as a
whistleblower. We agree that both relevant Carr factors weigh heavily in favor of
DHS. None of Huang’s arguments undermine the Board’s conclusions that DHS
had sufficient support to suspend Huang for her emails or that DHS lacked retaliatory
animus. The Board’s conclusion was based on substantial evidence.
DENIED.
7