Ingram v. Army , 623 F. App'x 1000 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
HARROLL INGRAM,
Petitioner
v.
DEPARTMENT OF THE ARMY,
Respondent
______________________
2015-3110
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-1221-14-0725-W-1.
______________________
Decided: August 10, 2015
______________________
HARROLL INGRAM, Sanford, FL, pro se.
RYAN MAJERUS, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by BENJAMIN C.
MIZER, ROBERT E. KIRSCHMAN, JR., ELIZABETH M.
HOSFORD.
______________________
Before LOURIE, WALLACH, and HUGHES, Circuit Judges.
2 INGRAM v. ARMY
PER CURIAM.
Harroll Ingram (“Ingram”) appeals from the final
decision of the Merit Systems Protection Board (“the
Board”) denying his petition for review. See Ingram v.
Dep’t of the Army, No. AT-1221-14-0725-W-1 (M.S.P.B.
Feb. 3, 2015) (“Final Order”); (M.S.P.B. Sept. 24, 2014)
(“Initial Decision”). Because the Board did not err in
denying Ingram’s petition for review, we affirm.
BACKGROUND
Ingram was employed by the Army as a Computer
Engineer/Systems Engineer in the Program Executive
Office for Simulation, Training, and Instrumentation, in
Orlando, Florida. Ingram filed an individual right of
action (“IRA”) claim at the Office of Special Counsel
(“OSC”), concerning his disclosure of a superior’s intention
to proceed with a controversial work presentation despite
a contrary recommendation from the Army’s legal de-
partment. In July 2011, the Board found that Ingram
was entitled to corrective action from the Army for mak-
ing a protected disclosure under the Whistleblower Pro-
tection Act (“WPA”). See Ingram v. Dep’t of the Army, 116
M.S.P.R. 525, 533 (2011). The Army undertook the re-
quired corrective action, and the Board subsequently
found that the agency complied with its final order. See
Resp’t’s App. 34.
In May 2014, Ingram filed a second IRA claim, seek-
ing corrective action at OSC, and on appeal at the Board,
the Administrative Judge (“AJ”) denied Ingram’s request
for corrective action. Initial Decision at 8. Ingram identi-
fied a number of alleged personnel actions that he claimed
were taken in retaliation for his prior whistleblowing and
IRA appeal:
1. The [Army] failed to comply with the prior
Board order in MSPB Docket No. AT-1221-
09-0874-B-1 by not increasing his perfor-
INGRAM v. ARMY 3
mance evaluation score to the highest possi-
ble rating;
2. The [Army] created a hostile work environ-
ment;
3. Lieutenant Colonel Wilson Ariza [(“Ariza”)]
scheduled [Ingram] to work 20 hours of over-
time and refused to agree to give him either
overtime pay or compensatory overtime for
the period;
4. [Ariza] did not permit [Ingram] to take a ho-
tel room for a local conference so that he
would not have to drive home late, while af-
fording that courtesy to others;
5. [Ariza] did not respond to [Ingram’s] e-mails;
6. [Ariza] recommended the issuance of a “letter
of caution” for leaving a conference call early
even though the colonel knew that [Ingram]
needed to use the bathroom;
7. Ms. Fabiola Hoffman [(“Hoffman”)] failed to
include [Ingram] in technical meetings deny-
ing [him] the opportunity to use his job skills;
8. Ms. Hoffman did not allow [Ingram] to serve
as a technical representative on Medical
Simulation Training Center (MSTC) Source
Selection activities;
9. Ms. Hoffman brought [Ingram’s] work to [In-
gram’s] supervisor for review;
10. Ms. Hoffman removed [Ingram] as a “Gov-
ernment Inspector of Simulators;”
11. Mr. Tony Marton [(“Marton”)] failed to take
appropriate action to remedy Ms. Hoffman’s
disrespectful and improper actions; and
4 INGRAM v. ARMY
12. Mr. Marton issued [Ingram] a “letter of cau-
tion” for leaving a conference call early even
though [Ingram] asserted that he needed to
use the bathroom.
Id. at 3. The AJ then analyzed each claim, and concluded
that Ingram failed to show by preponderant evidence that
he suffered a personnel action within the meaning of the
WPA. Id. at 8.
With respect to claim (1), the AJ found that
“[n]oncompliance with a final Board order is not an enu-
merated personnel action within the meaning of the
WPA,” and, in addition, the AJ found that the Army was
in compliance with the order. Id. at 3–4. The AJ then
found that Ingram failed to provide “specifics” for his
hostile work environment claim (2), and failed to present
evidence to substantiate the allegations relating to Ariza’s
actions in claims (3), (4), and (5). Id. at 4–5.
The AJ then found that Ariza’s letter of caution in
claim (6) “merely admonishes [Ingram] to behave in a
professional manner and treat others with respect.” Id. at
6. As a result, the AJ found that claim (6) did not consti-
tute a personnel action within the meaning of 5 U.S.C.
§ 2302(a)(2)(A) because the letter did not constitute a
formal disciplinary event. Id. The AJ also found that
claim (12), relating to Marton’s letter of caution, was the
same letter of caution as in claim (6), and thus was also
not a personnel action within the meaning of the WPA.
Id. at 8.
Turning to claims (7)–(11), the AJ found that Ingram
failed to show by preponderant evidence that he suffered
a personnel action as a result of the actions of Hoffman or
Ingram’s supervisor, Marton. Id. at 7. The AJ acknowl-
edged that the Army appointed an investigating officer to
examine claims (7)–(10) and that the investigator found
that the claims could not be substantiated. Id. The AJ
concluded, however, that he could not rely on the conclu-
INGRAM v. ARMY 5
sory statements of the investigator. Id. Nonetheless,
according to the AJ, Ingram “failed to present evidence
which demonstrates that he suffered a change in his
working conditions” and “he [relied] on bare factual
allegations without providing proof to support those
claims.” Id.
Because the AJ found that Ingram failed to show that
he suffered a personnel action within the meaning of the
WPA, he did not reach the issue of whether the Army took
those actions in retaliation for Ingram’s whistleblowing
activity. Id. at 8. Ingram then filed a petition for review
of the initial decision.
The full Board denied the petition for review and, as
modified by the final order, affirmed the initial decision.
Final Order at 2. The Board found that the applicable
law and evidence of record supported “the [AJ’s] findings
that [Ingram] failed to show by preponderant evidence
that he suffered a personnel action within the meaning of
the WPA, and, as a result, there was no need to reach the
issue of whether the [Army] took those actions in retalia-
tion for his whistleblowing activity.” Id. at 3.
Ingram argued that the AJ failed to substantively
address his claims regarding “a significant change in his
duties, position removal attempts without cause, and
denial of a promotion opportunity.” Id. at 4. Ingram also
alleged that he was issued a letter of reprimand; that he
was refused overtime pay; and that the Army took prohib-
ited personnel actions against him in retaliation for his
alleged whistleblowing. Id. The Board limited its analy-
sis to those allegations explicitly identified in Ingram’s
OSC complaint and addressed by the AJ. Id. The Board
considered Ingram’s allegations of a reduction in duties
and a refusal of overtime pay, but found for each allega-
tion that Ingram had either presented “limited probative
evidence,” id., or “no evidence in the record,” id. at 5.
The Board rejected Ingram’s claims and noted that it
6 INGRAM v. ARMY
“may only consider those disclosures of information and
personnel actions that [Ingram] raised before OSC.” Id.
(citing Mason v. Dep’t of Homeland Sec., 116 M.S.P.R.
135, ¶ 8 (2011)).
With respect to the “letter of reprimand,” the Board
found that Ingram never received a “letter of reprimand,”
but instead received a “letter of caution,” as concluded by
the AJ in the initial decision. Id. at 5. The Board found
that the AJ “thoroughly addressed the letter of caution
and found that the letter only admonishes [Ingram] to
behave in a professional manner and treat others with
respect.” Id. Thus, because the letter did “not state that
[Ingram] did anything wrong, or restrict behavior in any
way,” the Board found that it did not constitute a person-
nel action within the meaning of the WPA. Id. at 5–6.
The Board, however, did find that the AJ had failed to
consider Ingram’s claim “that his supervisors created a
Chief Engineer position on his team and then, without
competition, filled that position with another individual
from a different team.” Id. at 6. Nonetheless, the Board
found that Ingram failed to raise this claim in his OSC
complaint, and thus the “claim was not properly before
the Board.” Id. (citing Mason, 116 M.S.P.R. at ¶ 8).
As a final matter, Ingram argued that the AJ incor-
rectly granted a motion by the Army to strike e-mails
obtained by Ingram during discovery on the grounds of
attorney-client privilege. The Board concluded that under
5 C.F.R. § 1201.41, the AJ has substantial discretion to
make rulings on motions, and the Board found that
Ingram had “shown no basis upon which to disturb the
[AJ’s] ruling.” Id. at 6.
Ingram appealed to this court. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9).
INGRAM v. ARMY 7
DISCUSSION
The scope of our review in an appeal from a Board de-
cision is limited. We may only set aside the Board’s
decision if it was “(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.” 5 U.S.C. § 7703(c); see Briggs v.
Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003).
We must set aside a Board decision “unsupported by
substantial evidence when it lacks such relevant evidence
as a reasonable mind might accept as adequate to support
a conclusion.” McLaughlin v. Office of Pers. Mgmt., 353
F.3d 1363, 1369 (Fed. Cir. 2004) (internal quotation
marks and citations omitted).
Ingram argues that the Board: (1) failed to substan-
tively consider certain of his OSC allegations; (2) erred by
relying on the self-serving results of an Army-led investi-
gation; (3) erred in its characterization of the reprimand
letter; and (4) erroneously granted the Army’s motion to
strike certain e-mails during discovery. The government
responds that the Board addressed each of Ingram’s
allegations and correctly reviewed the initial decision for
substantial evidence.
We agree with the government that the Board did not
err in denying Ingram’s request for corrective action. As a
result, the Board did not err in denying Ingram’s petition
for review. The Board considered each of Ingram’s allega-
tions and all of the relevant facts before denying Ingram’s
request.
Ingram alleges that the Board failed to consider cer-
tain OSC allegations, and, in addition, Ingram specifically
argues that the Board failed to consider evidence support-
ing his allegations concerning Hoffman’s personnel ac-
tions. As we previously noted, the Board addressed
Ingram’s allegations against Hoffman, and it held that
8 INGRAM v. ARMY
Ingram “failed to present evidence” and “relied on bare
factual allegations without providing proof to support his
claims.” Final Order at 4. Ingram fails to recite any
additional evidence or allegations that were made before
both OSC and the AJ that the Board failed to take into
account. See Ward v. Merit Sys. Prot. Bd., 981 F.2d 521,
526 (Fed. Cir. 1992) (“[T]he administrative judge justifi-
ably refused to consider an issue that . . . had not properly
[been] raised before the Special Counsel.”)
Ingram also argues that the AJ and the Board errone-
ously relied on the Army-led investigation of his allega-
tions against Hoffman. As previously noted, however, the
AJ expressly declined to consider the Army’s investiga-
tion, but nevertheless concluded that Ingram had failed to
meet his burden of proof as to the allegations relating to
Hoffman. Initial Decision at 7. Similarly, the Board did
not rely on the results of the investigation, and instead
concluded that Ingram had not suffered a personnel
action because of the “limited probative evidence” pre-
sented on the issue. Final Order at 4. Thus, Ingram has
failed to demonstrate that the AJ and Board incorrectly
relied on the Army-led investigation.
Ingram’s arguments with respect to the “letter of cau-
tion” also fail to identify an error in the Board’s analysis.
The AJ held that the letter could not constitute a person-
nel action under 5 U.S.C. § 2302(a)(2)(A) because the
letter was not a formal disciplinary event, and, in any
event, the letter did not rise to the level of a threatened
personnel action under § 2302(b)(8). Initial Decision at 6.
The Board noted the AJ’s analysis and agreed that the
letter could not constitute a personnel action under the
WPA. Final Order at 5–6. The Board thus reasonably
concluded that the letter did not amount to a threatened
personnel action, and we decline to reweigh the evidence
on appeal. See, e.g., Henry v. Dep’t of the Navy, 902 F.2d
949, 951 (Fed. Cir. 1990) (“It is not for this court to re-
weigh the evidence before the Board.”).
INGRAM v. ARMY 9
Finally, Ingram challenges the Board’s decision af-
firming the AJ’s order to strike e-mails obtained by In-
gram during discovery because they were attorney-client
privileged. As the Board reasoned, 5 C.F.R. § 1201.41accords agencies substantial discretion to rule on motions,
and Ingram fails to identify any error in the Board’s
conclusion that the AJ did not abuse its discretion.
Because the Board’s decision that Ingram did not al-
lege a personnel action under the WPA is supported by
substantial evidence, the Board did not err in denying
Ingram’s petition for review. We have considered In-
gram’s remaining arguments and conclude that they are
without merit. For the foregoing reasons, the decision of
the Board is affirmed.
AFFIRMED
COSTS
No costs.