Pearson v. Department of Veterans Affairs , 465 F. App'x 925 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
JULIE E. PEARSON,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
__________________________
2011-3104
__________________________
Petition for review of the Merit Systems Protection
Board in case no. CH1221090692-W-1.
__________________________
Decided: December 13, 2011
__________________________
JULIE E. PEARSON, of Monroe, Louisiana, pro se.
CHRISTOPHER A. BOWEN, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and TODD M.
HUGHES, Deputy Director.
__________________________
2 PEARSON v. VA
Before BRYSON, CLEVENGER, and LINN, Circuit Judges.
PER CURIAM.
Julie E. Pearson (“Pearson”) appeals from a final deci-
sion of the Merit Systems Protection Board (“Board”)
denying her request to correct her termination under the
Whistleblower Protection Act, 5 U.S.C. § 1212 (“the Act”).
Pearson v. Dep’t of Veterans Affairs, No. CH-1221-09-0692
(Apr. 27, 2010) (“Initial Decision”), reh’g denied, (Feb. 2,
2011) (“Final Order”). For the reasons discussed below,
this court affirms.
BACKGROUND
On September 28, 2008, the Department of Veterans
Affairs (“VA” or “agency”) hired Pearson as a probationary
appointee at the Veterans Affairs Illiana Health Care
System in Danville, Illinois (“VAIHCS”). Pearson was
hired as an Architect and her responsibilities included
facility planning and assisting with the layout and design
of office spaces. While Pearson was employed at VAIHCS,
she reported to Troy Field (“Field”), Chief of Planning
Design. Field reported to Dan Murrell (“Murrell”), Chief
of Engineering Services. Murrell reported to Diana
Carranza (“Carranza”), Associate Director. Carranza
reported to Michael Hamilton (“Hamilton”), the Director.
Pearson admits that she did not get along with
Murrell, her supervisor’s superior, and others in the office
were aware of the “personality conflict” between Pearson
and Murrell. One month after starting work for VAIHCS,
on October 28, Pearson began looking for a new job. On
November 7, Pearson admits that she decided to resign
but that she “would try to stay for [a] meeting with [the]
Director.” Later that day, Pearson sent a long email to
Murrell, Carranza, and others on a “furnishing commit-
tee” in which she berated Murrell and Carranza. Eight
minutes after sending the email, Pearson went to Field
and admitted that the email was “abrasive, volatile,
possibly inappropriate” and that “[she] expect[ed] to be
PEARSON v. VA 3
fired over it.” On November 10, 2008, the VA terminated
Pearson, effective November 22, because of her “disre-
spectful and unprofessional interactions with manage-
ment.”
On December 27, 2008, Pearson filed a complaint with
the Office of Special Counsel asserting that her discharge
was retaliatory. Pearson alleged, as the basis for her
claim under the Act, that VAIHCS staff retaliated against
her for disclosures protected by the Act. In addition to the
cast of characters mentioned above, Pearson’s allegations
also involve Ed DeMoss (“DeMoss”), an electrician, and
Janet Thompson (“Thompson”), an interior designer. On
March 30, 2009, the Office of Special Counsel terminated
its inquiry because it found insufficient evidence to sup-
port her allegations against the agency. Pearson filed a
timely individual right of action appeal to the Board on
June 6, 2009.
The Board distilled four possible protected disclosures
made by Pearson: (1) an October 16, 2008, disclosure to
Field of improper procurement policies and threats
against Pearson by Murrell; (2) a November 5, 2008,
disclosure to Field regarding Murrell’s alleged threat to
Pearson’s employment in response to her request to meet
with Director Hamilton; (3) a November 7, 2008, disclo-
sure to Field of harassment by DeMoss for Murrell’s
benefit; and (4) a November 7, 2008, disclosure to Field
regarding procurement violations and threats by Car-
ranza and Murrell. Initial Decision at 6-7.
The Board held a three day hearing and ultimately
denied her request for correction under the Act. Initial
Decision at 2. In its decision, the Board analyzed each
alleged disclosure and concluded that none of them were
protected disclosures under 5 U.S.C. § 2302(b)(8). Initial
Decision at 5-23. Specifically, the Board concluded that
Pearson’s disclosures were vague and conclusory allega-
tions of wrongdoing, disclosures made in the normal
performance of Pearson’s duties, or simply frustrations
4 PEARSON v. VA
expressed about Murrell’s management decisions, and
that none of these were protected disclosures under the
Act. See id. Additionally, the Board concluded that even
if Pearson had established that a protected disclosure was
a contributing factor in her termination, the VA demon-
strated by clear and convincing evidence that it would
have terminated Pearson’s probationary employment
even in the absence of Pearson’s disclosures. Initial
Decision at 23-27. The full Board, on rehearing, denied
Pearson’s claim. Final Order at 8. Pearson appeals from
the Board’s final decision and we have jurisdiction under
28 U.S.C. § 1295(a)(9).
DISCUSSION
This court must affirm the Board’s decision unless it
is “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c).
Pearson challenges the Board’s decision on three
grounds: (1) the Board erred in finding that Pearson failed
to prove that she made any protected disclosures, (2) the
Board erred in finding that she would have been termi-
nated anyway, and (3) the Board erroneously excluded
disclosures, erroneously dismissed disclosures, and en-
gaged in ex parte communications with the agency. Each
challenge is addressed in turn.
1. Protected Disclosure
“The purpose of the Whistleblower Protection Act is to
encourage disclosure of wrongdoing to persons who may
be in a position to act to remedy it . . . .” Horton v. Dep’t of
the Navy, 66 F.3d 279, 282 (Fed. Cir. 1995). “Whistle-
blowers are encouraged to make such disclosures by
providing protection against retaliation for making the
disclosures.” Carr v. Soc. Sec. Admin., 185 F.3d 1318,
1326 (Fed. Cir. 1999). “The [Act] was enacted to protect
PEARSON v. VA 5
employees who report genuine infractions of law, not to
encourage employees to report arguably minor and inad-
vertent miscues occurring in the conscientious carrying
out of one’s assigned duties.” Frederick v. Dep’t of Justice,
73 F.3d 349, 353 (Fed. Cir. 1996).
In determining whether reprisal for whistleblowing
activities occurred and whether corrective action is war-
ranted, the Board must determine whether the appellant
has shown by a preponderance of the evidence that a
protected disclosure was made and that the disclosure
was a contributing factor in the agency’s personnel action.
5 U.S.C. § 1221(e); Kewley v. Dep’t of Health and Human
Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998).
In this case, the Board analyzed each alleged disclo-
sure and concluded that Pearson failed to establish by
preponderant evidence that she made any protected
disclosures under 5 U.S.C. § 2302(b)(8). Initial Decision
at 22. On appeal, Pearson alleges that the agency failed
to prove that the Board did not err when it concluded that
none of Pearson’s disclosures were protected. See, e.g.,
Pet’r’s Reply Br. 1-2. Additionally, for each alleged disclo-
sure, Pearson challenges the conclusion of the Board by
reasserting that her disclosure evidenced a violation of
law, alleging that the Board “failed to analyze substantial
evidence,” and asserting that the Board erred by adopting
the agency’s arguments. The government responds that
Pearson fails to explain how any of her disclosures
amount to a protected disclosure. Further, the govern-
ment responds that the Board carefully considered each
alleged disclosure, resolved conflicting testimony by
making credibility determinations, and that substantial
evidence supports the Board’s findings of fact.
This court agrees with the government. At the outset,
Pearson misunderstands her burden on appeal. The
burden of establishing a reversible error in a Board deci-
sion rests upon the petitioner. Harris v. Dep’t of Veteran
Affairs, 142 F.3d 1463, 1467 (Fed. Cir. 1998). If substan-
6 PEARSON v. VA
tial evidence supports the Board’s factual findings, this
court must affirm. 5 U.S.C. § 7703(c); Hayes v. Dep’t of
the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984). Substan-
tial evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938). This is a highly deferential standard of review:
“where two different, inconsistent conclusions may rea-
sonably be drawn from the evidence in record, an agency’s
decision to favor one conclusion over the other is the
epitome of a decision that must be sustained upon review
for substantial evidence.” In re Jolley, 308 F.3d 1317,
1329 (Fed. Cir. 2002). This court has independently
reviewed the Board’s fact findings concerning each alleged
protected disclosure and has concluded, for the reasons
explained below, that substantial evidence supports the
findings of the Board.
The Board concluded that Pearson’s disclosure on Oc-
tober 16, 2008, was not protected. In this disclosure,
Pearson relayed to Field, her supervisor, statements that
Carranza made to Murrell concerning Murrell’s poor
performance. Pearson fails to explain how she can claim
to have made a protected disclosure of something that
Murrell’s superior, Carranza, already knew and acted
upon. Substantial evidence supports the Board’s conclu-
sion, based upon the testimony of Field and Carranza,
that this disclosure did not impart any information of
wrongdoing and was not a protected disclosure under the
Act.
The Board concluded that Pearson’s disclosures on
November 4 and 5 to Field that she had emailed Hamilton
and Carranza requesting a meeting to discuss Murrell’s
“organizational and managerial experience and skills”
raised only non-specific allegations and primarily focused
upon Pearson’s policy disagreements with Murrell. See
LaChance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999)
(“The [Act] is not a weapon in arguments over policy or a
PEARSON v. VA 7
shield for insubordinate conduct.”). Additionally, Pearson
claimed that Murrell abused his authority because Pear-
son heard people in the office saying that Murrell had
become angry about someone, but Pearson was not sure
about whom. Pearson’s allegations lacked specificity and,
although she argues on appeal that “one could infer
abuse(s) of authority,” the burden rests on Pearson to
demonstrate that the Board’s interpretation is unreason-
able. Pearson simply failed to establish by preponderant
evidence that the she made a protected disclosure. Sub-
stantial evidence supports the Board’s conclusion, based
upon the emails of record and the testimony of another
employee, that Pearson lacked a reasonable belief that
she made a protected disclosure and that Murrell’s angry
outburst was not directed at Pearson.
The Board concluded that Pearson’s disclosure on No-
vember 7 to Field of harassment by DeMoss for the bene-
fit of Murrell also was not protected. The alleged threat
was when, after DeMoss overheard Pearson complaining
about Murrell to Thompson, DeMoss later asked Pearson
“what if I break your finger?” The Board credited the
testimony of DeMoss where he said that he had not
threatened Pearson, if anything he was joking, and that
he did not speak to her on Murrell’s behalf. Credibility
determinations made by the Board are “virtually unre-
viewable” on appeal. King v. Dep’t of Health & Human
Servs., 133 F.3d 1450, 1453 (Fed. Cir. 1998). Additionally,
the Board concluded that Pearson’s disclosures to Thomp-
son, of which DeMoss purportedly overheard, were “vague
and conclusory” and failed to identify what procurement
orders or procurement policies were violated by Murrell.
Initial Decision at 21. Substantial evidence, including
DeMoss’s testimony, supports the Board’s conclusion that
Pearson failed to allege facts to show that DeMoss’s
statements evidenced an abuse of authority by Murrell or
were made on behalf of Murrell.
8 PEARSON v. VA
The Board concluded that Pearson’s disclosure on No-
vember 7 to Field regarding the discussion she had with
Thompson concerning procurement violations and threats
by Murrell or Carranza (discussed supra) was also not a
protected disclosure. The Board credited Carranza’s
testimony that she was not aware of Pearson’s meeting
with Thompson or DeMoss’s comments. Additionally, the
Board credited Field’s testimony that there was nothing
inappropriate in Carranza and Murrell ordering furniture
from Widmer Interiors because Widmer Interiors sold
products listed on the GSA approved schedule. The
Board’s conclusion as to this alleged disclosure is sup-
ported by substantial evidence, including the testimony of
Field and Carranza.
Considering all the evidence presented and for the
reasons stated above, the record contains substantial
evidence to support the Board’s finding that Pearson
lacked a reasonable belief that she had made any pro-
tected disclosures under the Act and the Board’s conclu-
sion to that effect is affirmed.
2. Inevitable Adverse Action
Although the Board concluded that Pearson did not
make a protected disclosure, it also went on to conclude
that even if Pearson made a protected disclosure and it
was a contributing factor, “the agency demonstrated by
clear and convincing evidence that it would have termi-
nated [Pearson]’s probationary employment of five weeks
absent a protected disclosure.” Initial Decision at 23. If
the appellant establishes that a protected disclosure was
a contributing factor, the burden shifts to the agency to
establish by clear and convincing evidence that it would
have taken the action even in the absence of the protected
disclosure. 5 U.S.C. § 1221(e)(2); Kewley, 153 F.3d at
1363.
Pearson argues that “[t]he [Board] failed to analyze
substantial evidence” and that the agency failed to carry
PEARSON v. VA 9
its burden of clear and convincing evidence that it would
have terminated Pearson even in the absence of any
disclosures. Pet’r’s Br. 55. The government responds that
it proved by clear and convincing evidence that even if
Pearson had made protected disclosures, “the VA had
shown that it would have fired her[] because of [Pear-
son’s] email to the furnishing committee.” Resp. Br. 36.
Because Pearson did not make any protected disclosures
under the Act, see supra, this court need not review the
Board’s determination that the agency would have termi-
nated Pearson in the absence of protected disclosures.
Nonetheless, because substantial evidence supports the
Board’s determination that the agency proved it would
have terminated her in the absence of protected disclo-
sures, this court also affirms on that alternative ground,
for the reasons explained below.
Field, Pearson’s supervisor, testified that Pearson
brought to his attention the abusive email she had sent to
the furnishings committee eight minutes after she had
sent it. Initial Decision at 23. In coming to Field, Pear-
son identified this email as one that she could be dis-
charged for sending. Id. at 24. Field also testified that he
had previously discussed with Pearson the proper chain of
command, which she did not follow. Id. The record
reflects that on November 7, 2008, Field issued Pearson a
written statement counseling against insubordination and
he provided a copy of this statement and a memorandum
of his conversation with Pearson to Karen Cox (“Cox”),
Chief of Human Resources. Id.
Cox testified that she was contacted by management
regarding discipline against Pearson. Id. at 25. Cox then
explained that it was important to monitor the perform-
ance and conduct of probationary employees to see if they
are a good fit for the agency before they receive a perma-
nent appointment. Id. Cox further testified that she
reviewed emails sent to Carranza and the email sent to
the furnishing committee to determine if it was sufficient
10 PEARSON v. VA
for probationary termination. Id. Cox made the determi-
nation to terminate Pearson on November 10, 2008. Id.
After hearing the testimony and considering the re-
cord evidence, the Board concluded that Pearson sent
inappropriate communications to managers and repeat-
edly refused to follow the chain of command. Id. at 25.
Additionally, the Board also relied on testimony from one
of Pearson’s coworkers that Pearson’s discharge was not
retaliatory but was instead because she sent inappropri-
ate emails and failed to observe the chain of command.
Id. at 26. The Board also concluded that “[t]he record
reflects that [Murrell]’s and [Pearson]’s disagreement as
to her job duties and responsibilities on October 16, 2008,
led to a serious personality conflict that was not resolved
during the appellant’s extremely short tenure at the
agency.” Initial Decision at 21-22. These conclusions are
supported by substantial evidence and Pearson fails to
prove otherwise. This court therefore affirms the Board’s
conclusion that the VA would have terminated Pearson in
the absence of any protected disclosures.
3. Additional Issues
This court has considered the additional issues raised
by Pearson on appeal and has concluded that none of
them has any merit. Pearson complains that the Board
excluded additional disclosures that Pearson alleges were
protected. The Board properly excluded these additional
disclosures because they were omitted from the form she
filed with the Office of Special Counsel which stated, in
all caps, “must be completed for all disclosures reported in
this complaint.” Pearson’s complaint to the Office of
Special Counsel is what set the boundaries for the Board’s
inquiry. Pearson also alleges that the Board improperly
dismissed disclosures five and six, which were included on
that form. The Board properly dismissed disclosure five
as simply providing background information. See Initial
Decision at 6 n.3. The Board properly dismissed disclo-
sure six because it related to Pearson’s claim of sex dis-
PEARSON v. VA 11
crimination and harassment by Murrell, which Pearson is
pursuing before the EEOC and district court and not the
Board. Finally, Pearson alleges that the agency engaged
in ex parte communications with the Board. However, as
the Board correctly found on rehearing and Pearson fails
to rebut, Pearson’s allegations of ex parte communications
relate not to the merits but only to matters of scheduling.
See Final Order at 7.
For the foregoing reasons, the decision of the Board is
affirmed.
AFFIRMED
COSTS
Each party shall bear its own costs.