[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14048 ELEVENTH CIRCUIT
MAY 25, 2010
________________________
JOHN LEY
CLERK
D. C. Docket No. 06-00002-CV-4
PETER F. A. BROWN,
Plaintiff-Appellant,
versus
SECRETARY JANET NAPOLITANO,
Department of Homeland Security,
DEPARTMENT OF HOMELAND SECURITY,
UNITED STATES OF AMERICA
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(May 25, 2010)
Before BLACK, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
Plaintiff Peter Brown appeals the district court’s grant of summary judgment
in favor of Defendant Janet Napolitano, Secretary, Department of Homeland
Security on his Title VII retaliation claim and his non-discrimination civil service
claims. On appeal, Brown argues that genuine questions of material fact remain on
the issue of causation for his Title VII retaliation claim and that genuine questions
of material fact on the issue of pretext preclude summary judgment. He also argues
that summary judgment on his non-discrimination civil service claims should be
reversed because evidence does not support the charges underlying his dismissal,
the administrative judge erred in dismissing his affirmative defense based on
whistleblowing, the administrative judge erred in dismissing his affirmative
defense under 5 U.S.C. § 2302(b)(9)(D), the failure to conduct a proper
investigation before his removal was harmful procedural error, and the
administrative judge improperly excluded witnesses and improperly weighed
mitigating factors.
After reading the parties’ briefs, carefully reviewing the record, and having
had the benefit of oral argument, we discern no reversible error and affirm.
I. DISCUSSION
We review an order granting summary judgment de novo, applying the same
legal standards that bound the district court and viewing all facts and reasonable
inferences in the light most favorable to the nonmoving party. Callahan v. Point
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Clear Holdings, Inc., 579 F.3d 1207, 1212 (11th Cir. 2009). In a mixed case such
as this, the standard of review on the discrimination claim is de novo, but all other
non-discrimination claims are subject to the arbitrary and capricious standard.
Kelliher v. Veneman, 313 F.3d 1270, 1275 (11th Cir. 2002). Specifically,
non-discrimination claims should be reviewed on the record and the agency action
set aside if the agency’s action, findings, or conclusions are: “(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).
A. Title VII Retaliation
Brown argues that the district court erred in granting summary judgment
against him with respect to his Title VII retaliation claim. We have carefully
considered plaintiff’s numerous arguments in this regard, and the relevant parts of
the record. The crucial issue is whether or not Brown adduced sufficient evidence
to create a genuine issue of material fact with respect to causation. Because
plaintiff’s numerous challenges to the independence of Armstrong are wholly
unpersuasive, we agree with the district court that Armstrong’s independent
evaluation of the evidence before him breaks the causal chain and insulates the
decision from the retaliatory animus which the district court assumed on the part of
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Clements and the other parties who recommended terminating Brown. See
Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1250 (11th Cir. 1998)
(“When the employer makes an effort to determine the employee’s side of the story
before making a tangible employment decision affecting that employee, however, it
should not be held liable under Title VII for that decision based only on its
employee’s hidden discriminatory motives.”). Brown adduced no evidence from
which a reasonable jury could find that Armstrong harbored any retaliatory animus
against plaintiff. Indeed, Armstrong did not even know about plaintiff’s EEO
activities until plaintiff himself so advised Armstrong during his hearing before
Armstrong.
Brown’s argument that the presumption of pretext granted by the district
court as a result of the spoliation of certain evidence precludes summary judgment
on his retaliation claim is without merit. In granting a rebuttable presumption of
pretext, the district court specifically reserved the question of whether Brown had
established a prima facie case of retaliation. Thus, that presumption, standing
alone, does not establish the causation element of a prima facie case of retaliation.
Moreover, we note that the district court did not pigeonhole evidence into different
inquiries. The district court considered all evidence relevant to the question of
causation, regardless of whether it was also relevant to pretext or any other element
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the claim, and concluded that Brown had not established the causation element of
his prima facie case. After thorough review, we agree.1
B. Non-discrimination Civil Service Claims
1. Evidence Supporting the Charges Against Him
Brown argues that insufficient evidence supports the charges against him of
insubordination and inappropriate conduct. We disagree. With regards to
insubordination, the record establishes that Brown received a memo from his
superiors ordering him to stop commenting on his qualifications on his lab reports,
and that after receiving this memo, Brown still wrote “see memo” on several
reports. In order to establish insubordination, an agency must show a willful
refusal to obey an order of a superior that the employee was not entitled to disobey.
Fleckenstein v. Dep’t of Army, 63 M.S.P.R. 470, 473 (1994). We find eminently
reasonable the AJ’s conclusion that by writing “see memo” Brown intended to
continue to communicate his belief regarding his qualifications. Thus, Brown
disobeyed an order. Brown has failed to establish that he was entitled to disobey
this order. With regards to inappropriate conduct, the record establishes that
Brown sent an email questioning whether one of his superiors was “in a coma” or
1
The district court did not abuse its discretion in refusing to strike the declarations
of Cipolla and Pignone.
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had been “led down a garden path.” Again, we find the AJ’s determination to be
reasonable – i.e., that Brown’s using a disrespectful tone, even assuming Brown
was voicing legitimate complaints, was inappropriate conduct. In light of the
foregoing, we conclude that the determination that Brown was insubordinate and
engaged in inappropriate conduct was not arbitrary and capricious and was
supported by substantial evidence.
2. Affirmative Defense of Whistleblowing
Brown next argues that his dismissal was in retaliation for certain protected
whistleblowing disclosures. Under 5 U.S.C. § 2302(b)(8)(A)(i), the agency cannot
take a personnel action against an employee because of “any disclosure of
information by an employee . . . which the employee . . . reasonably believes
evidences -- (i) a violation of any law, rule, or regulation.” In order to prevail on a
whistleblower claim, the claimant must establish that he made a disclosure
protected by 5 U.S.C. § 2302(b)(8) and that disclosure was a contributing factor in
the personnel action being appealed. 5 U.S.C. § 1221(e)(1); 5 C.F.R. § 1209.7(a).
Even if the claimant meets that burden, however, corrective action is not necessary
if the agency can show by clear and convincing evidence that it would have taken
the same personnel action in the absence of the disclosure. 5 U.S.C. § 1221(e)(2);
5 C.F.R. § 1209.7(b); see also Horton v. Dep’t of Navy, 66 F.3d 279, 283-84 (Fed.
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Cir. 1995). The same action inquiry focuses on: “(1) the strength of the evidence
supporting the personnel action; (2) the existence and strength of any motive to
retaliate on the part of the agency officials who were involved in the decision; and
(3) any evidence that the agency takes similar actions against employees who are
not whistleblowers, but otherwise similarly situated.” Larson v. Dep’t of Army, 91
M.S.P.R. 511, 515 (2002); see Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1323 (Fed.
Cir. 1999) (approving of three-factor inquiry).
We affirm the district court’s judgment upholding the agency’s rejection of
Brown’s affirmative defense of whistleblowing. Brown was terminated on the
basis of his “see memo” notes on the worksheets or cover sheets related to his lab
reports. Although the forums below have assumed that plaintiff’s notations were
protected under the whistleblower provisions, we conclude that the notations are
not protected at all. It is clear that the “see memo” notations cannot constitute the
required “disclosure.” It is not likely that anyone other than the management which
the notations were intended to criticize would have access to the notations and the
memo referenced. However, in any event, the notations cannot constitute the
required “disclosure,” because they disclose nothing except to the supervisors to
whom Brown was being insubordinate.
3. Affirmative Defense Under 5 U.S.C. § 2302(b)(9)(D)
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Brown next argues that his dismissal was improper because Clements’ order
required him to violate the law. Under 5 U.S.C. § 2302(b)(9)(D), an agency cannot
take a personnel action against an employee “for refusing to obey an order that
would require the individual to violate a law.” Brown’s argument that Clements’
order required him to violate the law is wholly unpersuasive. Because Brown has
failed to show that following Clements’ order required him to violate any law, he is
due no protection under this section.
4. Harmful Procedural Error
Brown also argues that the agency failed to perform an independent fact
finding investigation as required by its policies and that such failure was harmful
procedural error. An agency’s decision may not be sustained if the employee
“shows harmful error in the application of the agency’s procedures in arriving at
such decision.” 5 U.S.C. § 7701(c)(2)(A). Harmful error is defined as: “Error by
the agency in the application of its procedures that is likely to have caused the
agency to reach a conclusion different from the one it would have reached in the
absence or cure of the error. The burden is upon the appellant to show that the error
was harmful, i.e., that it caused substantial harm or prejudice to his or her rights.”
5 C.F.R. § 1201.56(c)(3). After reviewing the record, we conclude that the agency
did not err in its application of the relevant procedure contained in “A Guide to
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Good Conduct and Discipline Process.” Moreover, even assuming any error in the
application of the procedure, Brown has failed to convince us that such error was
harmful in that it led to a different conclusion than would have been reached
otherwise. The evidence underlying the charges against him was plainly captured
in documentary form, and Brown has failed to establish that further fact finding
would have uncovered evidence defeating either of the charges. Thus, the
determination that the agency did not commit harmful procedural error is supported
by substantial evidence and is not arbitrary and capricious.
5. Exclusion of Witnesses
Brown next argues that the AJ abused its discretion by excluding three
witnesses. We disagree. The facts these witnesses proposed to testify to were
either (1) already presumed in Brown’s favor by the AJ or (2) irrelevant to the
determinations at hand. Thus, the AJ did not abuse its discretion in excluding the
witnesses.
6. Improper Weighing of Douglas2 Factors
Brown finally argues that the AJ improperly weighed the Douglas factors
when reviewing the agency’s decision to terminate him. This argument is without
merit. The record establishes that the AJ considered the relevant Douglas factors in
2
Douglas v. Veterans Admin., 5 MSPR 280 (1981).
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its review of the agency’s decision.
II. CONCLUSION
Based on the foregoing, the judgment of the district court is
AFFIRMED.
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