Goines v. Department of Agriculture , 113 F. App'x 925 ( 2004 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
04-3316
CHARLES D. GOINES,
Petitioner,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
___________________________
DECIDED: November 8, 2004
___________________________
Before LOURIE, Circuit Judge, ARCHER, Senior Circuit Judge, and DYK, Circuit Judge.
PER CURIAM.
Petitioner Charles D. Goines (“Goines”) petitions for review of the final decision
of the Merit Systems Protection Board (the “Board”), upholding his removal by
respondent, the Department of Agriculture (“Agriculture”). Goines v. Dep’t of Agric., No.
DC-0752020775-I-1 (M.S.P.B. Mar. 25, 2004). We affirm.
BACKGROUND
Goines was employed as a Construction Representative at the Agricultural
Research Service. He was removed for: (1) failure to follow supervisory instructions on
business communications; (2) failure to follow other supervisory instructions; (3) misuse
of a government purchase card; (4) failure to follow safety, health and environmental
rules and regulations; (5) making misleading statements; (6) negligence in performing
duties; (7) ethical misconduct; and (8) disrespectful and discriminatory remarks. (Resp’t
App. at 70.)
Goines appealed his removal to the Board. The administrative judge sustained
all the charges against Goines, found that his removal promoted the efficiency of the
service, and rejected his defense of whistleblowing. The administrative judge therefore
affirmed the agency’s decision to remove Goines.
Specifically, the administrative judge found that:
(1) Goines had been repeatedly counseled on appropriate language for use in
business communications. Despite such instructions Goines had on thirteen
instances used disrespectful, unprofessional, derogatory or otherwise
inappropriate language or made unsubstantiated claims of fraud, abuse and
waste.
(2) During a demolition project, contrary to express supervisory instructions that
the entire project be done as a complete contract, Goines removed only the
windows and siding materials instead of demolishing the entire building as
required.
(3) Goines misused a government purchase card by splitting a $ 3,250
transaction with one contractor into two transactions of $ 1,900 and $ 1,350, in
order to evade the $ 2,000 purchase limit on his authority.
(4) Goines had acted contrary to health, safety and environmental regulations by:
(a) soliciting bids from contractors without informing them of hazardous lead
levels; (b) exposing his own person to hazardous lead levels when lifting
contaminated windows and siding materials with his bare hands; (c) directing a
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vendor to place hazardous materials on the ground and exposing them to the
elements, leading to possible soil contamination; (d) failing to supervise
contractors as they removed boards containing lead paint; and (e) authorizing
onsite hazardous waste treatment without a required permit.
(5) Goines made misleading statements to vendors by making qualified
statements such as, “If the debris is defined as hazardous waste” and, “[t]he
amount of lead . . . may exceed the 500 ppm threshold established for hazardous
waste,” when he had actual knowledge that the debris were in fact hazardous
waste and the amount of lead in fact exceeded 500 parts per million.
(6) Goines was negligent in performing his duty. First, Goines failed to include a
lead testing report in a statement of work and failed to advise the contractor on
the proper treatment of hazardous waste. Second, Goines gave the contractor
discretion to weigh “the costs of preparing some of the debris for nonhazardous
disposal against the savings of having a smaller pile of hazardous waste to
eliminate,” which the agency charged was without proper regard for the interests
of the United States. The administrative judge determined that both constituted
negligent performance of Goines’ duty.
(7) Goines engaged in ethical misconduct by: (a) giving contractors government
property, specifically storm windows, without authorization; (b) advising another
federal employee that she could take government property out of dumpsters for
personal use; and (c) instructing contractors to abate hazardous waste onsite in
violation of health, safety and environmental regulations, as detailed above. And
04-3316 3
(8) Goines made disrespectful and discriminatory remarks in his work,
specifically that he sent several emails with ethnic jokes, despite prior counseling
as to appropriate language to be used in the workplace.
The administrative judge then rejected Goines’ claim that he was removed in
retaliation for protected whistleblowing activity. The administrative judge found that
Goines had articulated two specific disclosures that might have been protected. The
first was his disclosure that he had been pressured to raise the estimate of costs for
government contracts. The second was the allegation of threats of physical violence
against him. The administrative judge found that Goines’ alleged whistleblowing was
not a contributing factor to his removal.
The full Board denied Goines’ petition for review. Goines petitions this court for
review of the Board’s decision. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
Our review of the Board is limited. The Board’s decision must be affirmed unless
it is found to be arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law; obtained without procedures required by law, rule or regulation; or
unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2000); Yates v. Merit Sys.
Prot. Bd., 145 F.3d 1480, 1483 (Fed. Cir. 1998).
I
An agency is authorized to make a removal that promotes the efficiency of the
service. 5 U.S.C. § 7513 (2000). Here, the Board determined that removing Goines
would promote the efficiency of the service.
04-3316 4
We need not sustain every aspect of the Board’s decision to sustain the removal.
When the majority of charges are sustained and the charges that are not sustained are
relatively less serious, and there is no indication that the agency would have adopted a
different penalty without the unsustained charges, we may uphold the removal without a
remand. Guise v. Dep’t of Justice, 330 F.3d 1376, 1381 (Fed. Cir. 2003). In other
words, where we find that the Board erred in sustaining a charge but can nonetheless
be satisfied with “fair assurance” that “the judgment was not substantially swayed by the
error,” we should affirm the Board’s decision. Id. at 1381-82 (quoting Kotteakos v.
United States, 328 U.S. 750, 765 (1946)).
Here, the Board found that Goines had, contrary to express instructions, failed to
demolish a building as a complete contract but rather removed only the windows and
siding materials. The Board found that Goines misused his purchase card by splitting
purchases to evade his $ 2000 purchase limit. The Board found that Goines failed to
follow applicable heath, safety and environmental regulations. The Board found that
Goines was negligent in performing his duty when he failed to provide a contractor with
a lead testing report and directions for the proper treatment of hazardous waste. The
Board also found that Goines had given away government property without
authorization, and created the appearance of impropriety by so doing because he stated
in his email giving away the property that “I have owed you [the contractor] some work
for some time and this might be a good one to start rewarding you [sic] assistance.”
(Resp’t App. at 35.) These are serious violations, and the record contains substantial
evidence to support the Board’s findings. We need not consider the remaining charges
04-3316 5
as there is no indication that the agency would not have removed Goines if the
remaining charges had not been proved.
II
Goines contends that “Agriculture failed to completely explain . . . the charges”
against him. (Pet’r Br. at 3.) Specifically, Goines argues that Agriculture failed to
specifically define “misconduct” and state its reasons for choosing removal with
“verifiable details.” (Id.)
A notice of proposed removal should state the specific reasons for the removal.
5 U.S.C. § 7513(b)(1). A notice is sufficient when it apprises the employee of the nature
of the charges "in sufficient detail to allow the employee to make an informed reply.”
Brewer v. USPS, 647 F.2d 1093, 1097 (Ct. Cl. 1981). A notice does not need to include
“explicitly every element of every charge underlying the proposed action.” Brook v.
Corrado, 999 F.2d 523, 526-27 (Fed. Cir. 1993). Here, a notice of proposed removal
with nine charges, eight of which were eventually sustained in the decision to remove,
and with up to 13 specified incidents alleged to prove a particular charge, is sufficient
detail for Goines to have made an informed reply.
III
Goines argues that he made protected disclosures under the Whistleblower
Protection Act of 1989 (“WPA”), Pub. L. No. 101-12, 103 Stat. 16, and that he was
removed in retaliation for such disclosures. To state a whistleblowing claim, Goines
must identify the precise ground for the charge of whistleblowing and the specific
conduct at issue. Ward v. Merit Sys. Prot. Bd., 981 F.2d 521, 526 (Fed. Cir. 1992).
Before the Board, Goines specifically identified two disclosures that he claimed to have
04-3316 6
made. First, Goines alleged that he disclosed that he had been pressured to raise the
estimate of costs for government contracts to various agencies, including the Office of
Special Counsel, the Office of the Inspector General, the General Accounting Office,
and to Congressman Steny Hoyer. Second, he alleged that he disclosed threats of
physical violence against him to Congressman Hoyer. The Board rejected Goines’
WPA claims because it found that these disclosures were not a contributing factor to his
removal. (Resp’t App. at 44-45.) The Board noted that the last of these alleged
disclosures was made in 2000, and the notice of proposed removal was not issued until
over two years afterwards. Further, the Board credited the testimony of an agency
official that the removal was not in retaliation for these alleged disclosures. There is
substantial evidence to support the Board’s finding that the alleged disclosures were not
a contributing factor, and we will not disturb it. Goines has not alleged that he made
any other protected disclosures, and we need not consider whether any other
communication by Goines might have been a protected disclosure.
IV
Goines alleges that the proceedings before the Board suffered from procedural
defects. Specifically, he alleges that he was denied adequate discovery and that the
administrative judge was biased against him.
Procedural matters relative to discovery and evidentiary issues fall within the
sound discretion of the Board. Spezzaferro v. FAA, 807 F.2d 169, 173 (Fed. Cir. 1986).
This court will not overturn the Board on such matters unless an abuse of discretion is
clear, and the error caused substantial harm or prejudice that could have affected the
outcome of the case. Curtin v. OPM, 846 F.2d 1373, 1378-79 (Fed. Cir. 1988). Here,
04-3316 7
Goines discovery requests were for things such as the purchase card logs of all the
Agriculture employees in the area, allegedly to prove disparate treatment. (Pet’r Br. at
7.) We can find no abuse of discretion in refusing such overbroad requests. In any
event, given the evidence of misconduct as found by the Board, we do not think that any
error would have affected the outcome.
Goines also claims that the administrative judge was biased against him because
she stated to him: “If your supervisor says something is blue and you say it is green, I
am inclined to accept his opinion because he has less to lose.” (Pet’r Br. at 9.) This is
not evidence of “a deep-seated favoritism or antagonism that would make fair judgment
impossible,” the standard necessary to prove bias. Liteky v. United States, 510 U.S.
540, 555 (1994); Bieber v. Dep’t of the Army, 287 F.3d 1358, 1363 (Fed. Cir. 2002).
Goines has not established that the administrative judge was biased against him.
CONCLUSION
For the foregoing reasons, the Board’s decision is affirmed.
COSTS
No costs.
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