Pedeleose v. Department of Defense

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

KENNETH M. PEDELEOSE,
Petitioner

v.

DEPARTMENT OF DEFENSE,
Respondent
______________________

2015-3090
______________________

Petition for review of the Merit Systems Protection
Board in No. AT-1221-14-0260-W-1.
______________________

Decided: August 10, 2015
______________________

KENNETH M. PEDELEOSE, Acworth, GA, pro se.

JOSHUA E. KURLAND, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
ELIZABETH M. HOSFORD.
______________________

Before PROST, Chief Judge, NEWMAN, and TARANTO,
Circuit Judges.
2 PEDELEOSE v. DEFENSE

TARANTO, Circuit Judge.
The Defense Contract Management Agency (DCMA),
a component of the United States Department of Defense,
suspended Kenneth Pedeleose from his job for fourteen
days. Mr. Pedeleose appealed to the Merit Systems
Protection Board, alleging that the suspension was issued
in retaliation for his whistleblowing. The Board denied
him relief, concluding that the DCMA had shown, by clear
and convincing evidence, that it would have suspended
him for inappropriate behavior even if he had not made
protected disclosures. Mr. Pedeleose appeals that deci-
sion. We affirm.
BACKGROUND
Mr. Pedeleose is a DCMA industrial engineer with 27
years of federal service. He works, and has worked at all
times relevant to this appeal, at the DCMA contract
management office located at a Lockheed Martin facility
in Marietta, Georgia. Mr. Pedeleose’s duties include
reviewing Lockheed Martin’s “Cost Performance Reports”
and “provid[ing] technical support for negotiations . . . [by]
perform[ing] . . . comprehensive, complete, and accurate
technical evaluation with detailed analysis of cost pro-
posals” that serve as the “foundation” for contract negoti-
ation. Gov’t App. 163.
On February 16, 2010, Mr. Pedeleose received notice
that his supervisor, Ms. Nelson, proposed to suspend him
for fourteen days on the ground that he engaged in
“[i]nsolent and [i]ntimidating [b]ehavior [t]oward
[m]anagement [o]fficials.” Id. at 117. The proposal
pointed to three incidents. First, on November 17, 2009,
his second-line supervisor, Mr. Tessier, directed Mr.
Pedelose to attend a meeting, and after the meeting Mr.
Tessier asked him how it had gone. According to Mr.
Tessier, Mr. Pedeleose became “very upset” and “point[ed]
at [his] clipboard and slamm[ed] [his] pen
[while]. . . insist[ing] [he] w[as] not needed at the meet-
PEDELEOSE v. DEFENSE 3

ing.” Id. at 118. Second, the following morning, 1 Mr.
Pedeleose allegedly became “agitated” when the Contracts
Operations Supervisor, Mr. Gentile, asked him which
afternoon meetings he would be attending. Id. Mr.
Gentile reported that he and Mr. Pedeleose moved into
the hallway, where Mr. Pedeleose “raised [his] voice and
pointed [his] finger” and “yell[ed] and threatened to file a
complaint against [Mr. Gentile and others].” Id. “Mr.
Gentile described [Mr. Pedeleose’s] behavior as ‘totally
unprofessional and out of control,’ ” “felt very threatened
by [Mr. Pedeleose’s] actions,” and “actually thought [Mr.
Pedeleose] w[as] going to hit him.” Id. Third, Mr. Tessier
reported that Mr. Pedeleose left the confrontation with
Mr. Gentile and came immediately to Mr. Tessier’s office,
where he “stated very loudly, more than once, that [he]
wanted to go home.” Id. Mr. Pedeleose “loudly stated
that Mr. Gentile had disrespected and embarrassed [him],
and . . . complained about taking [another employee’s]
workload.” Id. Mr. Tessier described Mr. Pedeleose as
“red faced and full of rage” and his conduct as “explosive”
and a “display of aggression.” Id. (internal quotation
marks omitted). Both Mr. Tessier and Mr. Gentile wrote
memoranda recounting the incidents.
On April 21, 2010, the relevant deciding official, Ms.
Snow, sustained the proposed suspension. The suspen-
sion took effect April 25th, and Mr. Pedeleose returned to
duty on May 9th.
Just under two years later, in 2012, Mr. Pedeleose
filed a complaint with the Office of Special Counsel mak-
ing a whistleblower allegation: he charged that he had
been suspended in retaliation for reporting what he
believed to be a violation of the Truth in Negotiations Act,

1 The Notice of Proposed Suspension misstates the
second specification as having occurred on the morning of
November 17, 2009.
4 PEDELEOSE v. DEFENSE

see 10 U.S.C. § 2306a, to his supervisors and to the DCMA
Office of Special Investigations. (His disclosures alleged
that Lockheed Martin used two sets of data for contract
proposals—one set for internal analysis, the other for
external submissions.) The Office of Special Counsel
closed its inquiry into Mr. Pedeleose’s claim of whistle-
blower retaliation in December 2013 after concluding that
the DCMA could prove, by clear and convincing evidence,
that it would have suspended Mr. Pedeleose even if he
had not made disclosures of potential wrongdoing. Mr.
Pedeleose then sought redress from the Board under 5
U.S.C. §§ 1214(a)(3) and 1221.
A Board administrative judge determined that Mr.
Pedeleose’s claim of whistleblower retaliation failed for
two reasons. The first was that Mr. Pedeleose could not
establish that the alleged whistleblower disclosures at
issue were a contributing factor to his suspension. 2 The
second was that the DCMA had shown, by clear and
convincing evidence, that it would have suspended him
even if he had not made the disclosures. Pedeleose v.
Dep’t of Defense (Initial Decision), No. AT-1221-14-0260-
W-1, slip. op. at 7–8 (M.S.P.B. July 28, 2014).
When Mr. Pedeleose petitioned for review of the ini-
tial decision, the Board affirmed the denial of relief. The
Board first concluded, contrary to the conclusion of the
administrative judge, that Mr. Pedeleose had shown that
some of his disclosures were a contributing factor to his
suspension under the “ ‘ knowledge/timing test.’ ” Pedele-
ose v. Dep’t of Defense (Final Decision), No. AT-1221-14-
0260-W-1, slip. op. at 6, 9 (M.S.P.B. Jan. 22, 2015) (quot-

2 The administrative judge outlined seven relevant
disclosures in his initial decision. Those disclosures range
in date from October 2009 to March 2010. Mr. Pedeleose
does not appear to dispute the administrative judge’s list
of the disclosures relevant to this appeal.
PEDELEOSE v. DEFENSE 5

ing Wadhwa v. Dep’t of Veterans Affairs, 110 M.S.P.R.
615, ¶ 12, aff’d, 353 F. App’x 435 (Fed. Cir. 2009)). “Un-
der that test,” the Board has ruled, a whistleblower “can
prove the contributing factor element through evidence
that the official taking the personnel action knew of the
. . . disclosure and took the personnel action within a
period of time such that a reasonable person could con-
clude that the disclosure was a contributing factor in the
personnel action.” Wadhwa, 110 M.S.P.R. at ¶ 12. Here,
the Board concluded, Mr. Pedeleose had satisfied the
knowledge/timing standard by showing that his supervi-
sor issued the February 16, 2010 notice of proposed sus-
pension only thirteen days after the February 3rd
meeting in which, the parties agree, she first learned of
six of Mr. Pedeleose’s disclosures. 3
The Board nevertheless rejected Mr. Pedeleose’s
claim. Like the Office of Special Counsel and the admin-
istrative judge, it concluded that the DCMA had proven,
by clear and convincing evidence, that it would have
suspended Mr. Pedeleose even if he had not made protect-
ed disclosures. It relied on evidence that his supervisor
made the decision to discipline him—and contacted a
DCMA employee-relations specialist in that regard—well
before learning of the protected disclosures.
Mr. Pedeleose appeals the Board’s decision. We have
jurisdiction under 28 U.S.C. § 1295(a)(9).

3 The Board, like the administrative judge, conclud-
ed that a March 10, 2010 disclosure could not have been a
contributing factor to Mr. Pedeleose’s suspension because
it “postdates the proposed suspension” and “there is no
evidence that the deciding official was aware of [the
March 10th disclosure] at the time she rendered her
decision.” Final Decision, slip op. at 7.
6 PEDELEOSE v. DEFENSE

DISCUSSION
On appeal, Mr. Pedeleose alleges that the proceedings
against him were biased. He also attacks the evidence
underlying his suspension. He argues that the DCMA,
anticipating a complaint against Mr. Gentile, Ms. Nelson,
and Mr. Tessier, prepared documents containing false
statements regarding his conduct, and it then used those
documents to discredit his whistleblowing. He recites
numerous evidentiary or other criticisms of the agency’s
case.
But it is not this court’s function to re-weigh the evi-
dence. See Bieber v. Dep’t of the Army, 287 F.3d 1358,
1364 (Fed. Cir. 2002); Schab v. Dep’t of Veterans Affairs,
142 F. App’x 449, 450 (Fed. Cir. 2005). We 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 without procedures required by
law, rule, or regulation having been followed; or (3) un-
supported by substantial evidence.” 5 U.S.C. § 7703(c);
see also Terban v. Dep’t of Energy, 216 F.3d 1021, 1024
(Fed. Cir. 2000). Applying our restricted standard of
review, we cannot disturb the Board’s decision here.
Mr. Pedeleose’s claim for relief from the Board in this
appeal under 5 U.S.C. § 1221(e)(1) depends on his estab-
lishing whistleblower retaliation under the Whistleblower
Protection Act, 5 U.S.C. § 2302(b)(8). To do so, an em-
ployee “must establish four elements: (1) the acting offi-
cial has the authority to take, recommend, or approve any
personnel action; (2) the aggrieved employee made a
protected disclosure; (3) the acting official used his au-
thority to take, or refuse to take, a personnel action
against the aggrieved employee; and (4) the protected
disclosure was a contributing factor in the agency's per-
sonnel action.” Chambers v. Dep’t of Interior, 602 F.3d
1370, 1376 (Fed. Cir. 2010). Even if an aggrieved employ-
ee establishes those elements, however, “there is still no
PEDELEOSE v. DEFENSE 7

violation of the [Whistleblower Protection Act] if the
agency can prove by clear and convincing evidence that it
would have taken the same personnel action(s) in the
absence of the protected disclosure.” Id. (citing 5 U.S.C.
§ 1221(e)(2)).
In Mr. Pedeleose’s case, the government never disput-
ed that the deciding official had authority to take, and did
take, a personnel action against him. Initial Decision, slip
op. at 4. The parties likewise agree that Mr. Pedeleose
made protected disclosures. Id. at 5. And the government
does not challenge the Board’s conclusion that six of Mr.
Pedeleose’s disclosures were a contributing factor to his
suspension. See Br. of Appellee 19–21. The only issue
before us, therefore, is whether the Board appropriately
ruled that the DCMA established by clear and convincing
evidence that it would have suspended Mr. Pedeleose
even if he had not made the protected disclosures in
question.
When evaluating whether an agency would have tak-
en a personnel action against a whistleblower had the
whistleblowing not occurred, we have focused on three
factors: “the strength of the agency’s evidence in support
of its personnel action; the existence and strength of any
motive to retaliate on the part of the agency officials who
were involved in the decision; and any evidence that the
agency takes similar actions against employees who are
not whistleblowers but who are otherwise similarly situ-
ated.” Carr v. Social Sec. Admin., 185 F.3d 1318, 1323
(Fed. Cir. 1999); see, e.g., Chambers, 602 F.3d at 1382
(noting that the Carr factors “should be considered”).
Here, substantial evidence supports the Board’s findings
on the Carr factors and its ultimate determination that
the DCMA would have suspended Mr. Pedeleose even if
he had not made the protected disclosures at issue.
With respect to the first factor, the agency’s evidence
includes the written accounts from the two supervisors
8 PEDELEOSE v. DEFENSE

who observed Mr. Pedeleose’s offensive conduct. Gov’t
App. 125–27. Those “memoranda contain[ ] detailed
descriptions of the incidents” that led to Mr. Pedeleose’s
suspension, and were written “while the incidents . . .
were still fresh in [the supervisors’] minds.” Final Deci-
sion, slip op. at 10. Further, sufficient evidence shows
that the suspension process was initiated before Mr.
Pedeleose’s supervisor learned of his disclosures—Ms.
Nelson and the DCMA’s Director of Labor and Employee
Relations both submitted declarations to that effect.
Moreover, Mr. Pedeleose’s disciplinary record in the year
leading up to the suspension was far from clean. The
suspension itself was based on three separate incidents
occurring within a 24-hour period. In addition, Mr.
Pedeleose received a one-day suspension in June 2009 for
rude and disrespectful statements, a suspension this court
affirmed in Pedeleose v. Dep’t of Defense, 479 F. App’x 341
(Fed. Cir. 2012). He also received a letter of warning and
instruction in September 2009 “directing him to carry out
his job duties without threats and defiance.” Final Deci-
sion, slip op. at 11; Gov’t App. 129–30. And he received
another letter of instruction in January 2010 “based on a
complaint by another employee who alleged that [Mr.
Pedeleose] had repeatedly made disparaging and unpro-
fessional statements directed at management.” Final
Decision, slip op. at 11; Gov’t App. 121–22. The DCMA’s
“Table of Penalties” provides that appropriate discipline
for a second instance of “[d]isrespectful conduct, use of
insulting, abusive, or obscene language” ranges from a
ten-day suspension to removal. Gov’t App. 175–76. The
fourteen-day suspension here, based on more than two
incidents, falls well within this range. 4

4 Mr. Pedeleose asserts that the January 20 letter
of warning contained false allegations. Br. of Appellant at
Cont’n pp. 21–24; Gov’t App. 205. Even if Mr. Pedeleose
PEDELEOSE v. DEFENSE 9

With respect to the second Carr factor, there is evi-
dence that Mr. Pedeleose’s supervisor, Ms. Nelson, was
“arguably implicated” by Mr. Pedeleose’s assertion that
management was “rewriting his reports to conceal nega-
tive information about [the contractor].” Final Decision,
slip op. at 12. The Board properly acknowledged that
these allegations might provide motivation for Ms. Nelson
to retaliate. Id.
Finally, after noting that the third Carr factor does
not apply to Mr. Pedeleose’s case, because the parties
agree that no similarly situated, non-whistleblower
employees exist, the Board concluded that “any evidence
of motive to retaliate on the part of the relevant agency
officials does not outweigh the strength of the evidence in
support of the agency’s suspension decision.” Id. at 12–
13. We see no reversible error in this weighing of the
evidence, and we may not re-weigh it ourselves. See
Bieber, 287 F.3d at 1364. We therefore cannot say that
the Board’s decision denying corrective action based on
Mr. Pedeleose’s claim of whistleblower retaliation was
arbitrary or capricious, contrary to law, or unsupported by
substantial evidence. 5 U.S.C. § 7703(c).
We have considered Mr. Pedeleose’s additional argu-
ments and concluded that they do not justify reversal. In
particular, Mr. Pedeleose’s claims of bias are conclusory
and point to no action by the Board or administrative
judge that rises to the level of “evidencing ‘a deep-seated
favoritism or antagonism that would make fair judgment
impossible.’ ” Bieber, 287 F. 3d at 1363 (quoting Liteky v.
United States, 510 U.S. 540, 555 (1994)).

were right in that assertion, our limited standard of
review and the other evidence would require affirmance of
the Board’s findings on the first Carr factor and its ulti-
mate determination that the DCMA would have suspend-
ed him even if he had not engaged in whistleblowing.
10 PEDELEOSE v. DEFENSE

CONCLUSION
For the foregoing reasons, the decision of the Board is
affirmed.
AFFIRMED