UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KATHRYN A. FLYNN, DOCKET NUMBER
Appellant, SF-1221-14-0620-W-1
v.
DEPARTMENT OF THE ARMY, DATE: January 6, 2017
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kathryn A. Flynn, Claremont, California, pro se.
Michael L. Halperin, Esquire, Monterey, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action in this individual right of action (IRA)
appeal. Generally, we grant petitions such as this one only when: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 On October 29, 2007, the agency effected an “Excepted Appointment NTE
[Not to Exceed] 29-OCT-2009” of the appellant to an Associate Professor
position at the agency’s Defense Language Institute and Foreign Language Center
(DLIFLC). Initial Appeal File (IAF), Tab 7, Subtab D at 6-8. The agency
extended the appointment several times for shorter NTE periods between
October 2009 and October 2011, with a final extension issued on
October 27, 2011, for a 2-year period ending on October 28, 2013. Id. at 1-5.
On October 28, 2013, the agency effected the appellant’s termination upon the
expiration of her NTE appointment. IAF, Tab 7, Subtabs C, E.
¶3 On appeal to the Board, the appellant alleged that the agency decided not to
extend her appointment based on reprisal for whistleblowing. IAF, Tab 1 at 5. In
particular, the appellant asserted that she disclosed to her supervisors and the
Inspector General (IG) a gross waste of funds relating to a Government contract.
IAF, Tab 33 at 10-19. The agency, by contrast, asserted that it became clear over
time that the appellant’s conduct and performance was not up to the agency’s
standards, not meeting management’s expectations, and impacting the agency’s
mission. IAF, Tab 7 at 2, 4. The agency noted that it had issued the appellant a
September 2012 letter of warning for using abusive language and an
3
October 2012 letter of reprimand for repeatedly demonstrating unprofessional
behavior by being insubordinate and discourteous and creat ing a disturbance in
the workplace. Id. at 5. The agency also asserted that it had given the appellant a
“Fair” rating on her October 1, 2011, through September 30, 2012 performance
evaluation, including a “Needs Improvement” rating in the area of Interpersonal
Relationships, and imposed a 2-day suspension in April 2013, for failure to
follow instructions, defiance, and causing undue workplace disruption. Id. at 6.
¶4 After a hearing, the administrative judge denied the appellant’s request for
corrective action. IAF, Tab 94, Initial Decision (ID) at 2, 24. The administrative
judge found that the appellant exhausted her remedy with the Office of Special
Counsel and reasonably believed that she made protected disclosures to her
supervisors and the agency’s IG that a multi-year project costing over $1 million
was being operated by a contractor in violation of an agency regulation and
without sufficient oversight to ensure that security clearances and other
contractual specifications were being satisfied. ID at 13-16. The administrative
judge also found that the disclosures were a contributing factor in the decision not
to extend her appointment. ID at 16-17.
¶5 Nevertheless, the administrative judge held that the agency proved by clear
and convincing evidence that it would have taken the same personnel action
absent the disclosures. ID at 17. The administrative judge noted that the agency
had initiated disciplinary actions against the appellant, including a notice of
warning, a letter of reprimand, and a 2-day suspension for behavioral issues, well
before the date of her first protected disclosure. ID at 18. He found that these
disciplinary actions were based on charges of unprofessional and/or inappropriate
conduct, including the use of abusive language toward a colleague,
inappropriately confrontational and disrespectful behavior that created a
disturbance in the workplace, and initiating multiple emails that were defiant,
unproductive, and burdensome to work operations. Id. The administrative judge
also found it significant that the recommending and acting officials were pursuing
4
efforts to remove the appellant for behavioral issues nearly 1 month before she
made her first protected disclosure, and that an assistant commandant credibly
testified that the acting official raised his concerns with her about the appellant’s
behavior but not her whistleblowing activities. ID at 18-19. The administrative
judge noted that the record was replete with emails sent by the appellant that
could be characterized as becoming more strident, sarcastic, and confrontational
over time, even though her supervisors had instructed her on several occasions to
use a more respectful tone. ID at 19. Thus, the administrative judge held that the
agency had a strong justification for its decision not to extend the appellant’s
NTE appointment. ID at 19-21. Moreover, the administrative judge found that
the agency officials had, at most, a moderate motive to retali ate against the
appellant because the project about which she made her disclosures was broadly
known by the agency to not be successful or cost effective and already in the
process of being “w[ound] down” and moved in-house by the time the appellant
made her first disclosure. ID at 21-22. The administrative judge noted that there
was no evidence that the agency tried to undermine the appellant’s
whistleblowing activities; in fact, the appellant’s supervisor had encouraged her
to report her concerns to the IG. ID at 22. Finally, the administrative judge
found that there was no evidence suggesting that similarly situated
nonwhistleblowers were treated more favorably. ID at 24.
¶6 The appellant asserts on review that the administrative judge incorrectly
credited her with having only 6 years of Federal service instead of nearly 16 years
of service, and that this increased length of service showed that the agency’s
allegations of insubordination and disrespect were “highly suspect.” Petition for
5
Review (PFR) File, Tab 1 at 5. 2 She also contends that several agency officials
wrote notes of excellence regarding her work in 2011 and otherwise praised her
work in 2012, describing her as a valued employee and highly recommending her
for promotion. Id. at 5-6. The appellant asserts that the agency’s actions toward
her changed after she filed an equal employment opportunity (EEO) complaint
based on alleged sexual harassment during an altercation at her cubicle with a
coworker in September 2012. Id. at 6-7.
¶7 The administrative judge did not find that the appellant had only 6 total
years of Federal service, nor did he consider the appellant’s length of service in
finding that the agency proved by clear and convincing evidence that it would
have taken the same action in the absence of her disclosures. ID at 17-24.
Instead, the administrative judge simply noted that, as of the appellant’s initial
NTE appointment on October 29, 2007, her Standard Form 50 indicated that her
service computation date was October 29, 2007. ID at 2; see IAF, Tab 7 at 1721.
Thus, the appellant’s argument regarding her length of service demonstrates no
error in the initial decision. Further, the administrative judge correctly held that,
in determining whether the agency met its burden, the Board must consider all of
the evidence presented, not just the evidence supporting the ag ency’s position.
ID at 17; see Whitmore v. Department of Labor, 680 F.3d 1353,
1368 (Fed. Cir. 2012). Consistent with Whitmore, the administrative judge
2
The appellant submitted an “updated” petition for review after submitting her original
petition for review. PFR File, Tab 2. This document includes a summary and changes
to some of the headings and paragraph endings of the original petition for review, as
well as additional phrases and sentences. Id. at 32. Compare, e.g., PFR File, Tab 1 at
5, with PFR File, Tab 2 at 5-6. It does not, however, substantially differ in substance
from the original petition for review.
The appellant also filed a supplement to her reply to the agency’s response to her
petition for review. PFR File, Tab 7. Pleadings allowed on review include a petition
for review, a cross petition for review, a response to a petition for review, a respon se to
a cross petition for review, and a reply to a response to a petition for review. 5 C.F.R.
§ 1201.114(a). The appellant did not file a motion for leave to submit this pleading.
See 5 C.F.R. § 1201.114(a)(5). Thus, we have not considered the supplemental reply.
6
correctly considered the fact that, for most of her time at the DLIFLC, the
appellant had an exemplary work record and regularly received outstanding
performance reviews. ID at 3. To the extent that the appellant asserts that the
agency’s failure to extend her appointment was based on reprisal for filing an
EEO complaint, such a claim of a violation under 5 U.S.C. § 2302(b)(9)(A)(ii)
does not provide a basis for Board review in an IRA appeal. 5 U.S.C. § 1221(a);
see Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 7 (2013).
¶8 The appellant also contends that the administrative judge misapplied the
factors set forth in Carr v. Social Security Administration, 185 F.3d 1318,
1323 (Fed. Cir. 1999), for determining whether the agency showed by clear and
convincing evidence that it would have taken the same personnel action in the
absence of her whistleblowing. PFR File, Tab 1 at 7. The appellant asserts that
her communications were direct, consistent, and detailed and did not evidence
disrespect, obstruction, and insubordination. Id. She also contends that the
emails the agency cited as reasons for terminating her employment transmitt ed
information on contract violations, a lack of deliverables already purchased, or
security and contract violations, or requested specific information relating to
contract line items required in the Work Performance Statement . Id. at 8. The
appellant contends that her supervisors repeatedl y asserted that they did not know
what information was required, even though they were running the contracts. Id.
¶9 We agree, however, with the administrative judge’s analysis of the Carr
factors. See ID at 17-24. Although the appellant asserts that the emails in
question were direct, consistent, and detailed, the administrative judge correctly
found that they also could be characterized as “strident, sarcastic, and
confrontational,” and that the negative tenor of the appellant’s emails increased
over time despite instructions from her supervisors to use a more respectful tone.
ID at 19-20; see, e.g., IAF, Tab 35 at 15-16, 57, Tab 36 at 5-6, 12, 37-39, 59
at 567-69, 573-74, 581, 605-06, 659, 680-81. Many emails and behavior that may
be characterized in a similar fashion predated the appellant’s first protected
7
disclosure, which occurred in late May 2013. See, e.g., IAF, Tab 7, Report of
Investigation at 160-61, 166, 171-72, 178-79, 183-84, 210-11, 213-14, 218-19,
Tab 33 at 33-34, 39-40, Tab 34 at 79-80; ID at 8-9. The appellant has not shown
that any lack of knowledge on the part of her supervisors as to what information
was required regarding the contract justified the tone set forth in her emails.
Moreover, as both the U.S. Court of Appeals for the Federal Circuit and the
Board have held, whistleblowing activity does not shield an employee from
discipline for wrongful or disruptive conduct. Marano v. Department of Justice,
2 F.3d 1137, 1142 n.5 (Fed. Cir. 1993); Russell v. Department of Justice,
76 M.S.P.R. 317, 325 (1997); ID at 20.
¶10 In addition, the administrative judge found credible the testimony of the
appellant’s supervisor that he recommended the nonrenewal of her appointment
because of the way in which she conducted herself, not because of her efforts to
ensure compliance with the contract requirements; this credibility determination
was based in part on the administrative judge’s observations of the supervisor’s
demeanor. ID at 20, 22; see Haebe v. Department of Justice, 288 F.3d 1288, 1301
(Fed. Cir. 2002) (finding that, the Board must defer to an administrative judge’s
credibility determinations when they are based, explicitly or implicitly, on
observing the demeanor of witnesses testifying at a hearing; the Board may
overturn such determinations only when it has “sufficiently sound” reasons for
doing so). The appellant has not established a basis for overturning this
credibility determination. As further found by the administrative judge, the
agency disciplined the appellant long before she made her first protected
disclosure, and the appellant’s supervisors were pursuing efforts to remove her
approximately 1 month before she made her first protected disclosure. ID at
18-19; see IAF, Tab 37 at 5. Under these circumstances, we find that the
appellant has shown no error in the administrative judge’s finding that the agency
presented strong evidence supporting its determination not to extend her
appointment. ID at 20-21; see Rumsey v. Department of Justice, 120 M.S.P.R.
8
259, ¶¶ 44-48 (2013) (finding the agency’s documented concerns regarding the
appellant’s performance well before she made her protected disclosures
strengthened the agency’s evidence in support of its action) .
¶11 The appellant also contends that the agency’s rationale for the no nrenewal
of her contract was a pretext for whistleblower reprisal because her supervisor
indicated during an EEO investigation that he did not renew her appointment
because her project ended and the mission changed, yet there was no reduction in
work requirements and this reason differed from the reasons given by the
supervisor during his testimony before the Board. PFR File, Tab 1 at 21-22.
¶12 The appellant’s supervisor indicated during an EEO investigation that he
recommended to the acting official that the appellant’s term appointment not be
extended because the organization no longer needed her services under the
“business rule,” and that she was assigned to a project that she did not complete.
IAF, Tab 7 at 24, Report of Investigation at 1187-88. The acting official,
however, indicated that he did not renew the appointment based on the
supervisor’s recommendation, and that the supervisor suggested that the
appointment should not be renewed “because of [the appellant’s] failure to meet
expectations as evidenced by her disciplinary record, refusal to perform work and
poor interpersonal relations.” Id. at 24, Report of Investigation at 1519, 1522.
We find that the above descriptions regarding the reason the appellant’s
supervisor recommended that her appointment not be renewed are not necessarily
inconsistent with each other, and are consistent with the administrative judge’s
finding that the supervisor testified at the hearing that his recommendation was
based on the appellant’s behavioral issues. ID at 20. Thus, we discern no reason
to disturb the administrative judge’s finding that the supervisor was credible.
¶13 The appellant further contends that the administrative judge improperly
denied her the opportunity to conduct depositions and other discovery and to call
certain witnesses, including her second- and third-level supervisors and IG
employees. PFR File, Tab 1 at 22. She also asserts that the administrative judge
9
should have recused himself after her representative asserted that he had engaged
in erratic, irrational, and biased conduct. Id. In addition, the appellant contends
that the administrative judge refused to hold the hearing in a more neutral
location, did not permit her to refer to notes or use a power point projector, asked
her how much longer her testimony would continue, and permitted an agency
witness to testify first. PFR File, Tab 1 at 23.
¶14 An administrative judge has broad discretion in ruling on discovery matters,
and absent an abuse of discretion the Board will not find reversible error in such
rulings. Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 16 (2016). Here,
the administrative judge denied the appellant’s motion to compel depositions
because she did not provide timely notice of the individuals she sought to depose
along with the specific time and place of such depositions. IAF, Tab 50 at 2-3.
The appellant has shown no abuse of discretion by the administrative judge in this
regard. See 5 C.F.R. § 1201.73(a) (requiring requests for discovery to specify the
time and place of the taking of depositions). Moreover, an administrative judge
has wide discretion to control the proceedings, including the authority to exclude
testimony he believes would be irrelevant, immaterial, or unduly repetitious.
Parker v. Department of Veterans Affairs, 122 M.S.P.R. 353, ¶ 21 (2015). The
appellant has not shown the administrative judge abused his discretion in denying
her request for certain witnesses or in otherwise controlling the hearing-related
proceedings, particularly given that the appellant’s request for witnesses was
untimely filed. IAF, Tab 82 at 2-3; 5 C.F.R. § 1201.43(c). In fact, the
administrative judge provided an alternative basis for denying the requested
witnesses based on the appellant’s proffers as to their testimony and approved
several witnesses requested by the appellant, even though her request was
untimely filed. IAF, Tab 82 at 3. Although the appellant contends that the
administrative judge was biased against her, she has not shown that any
comments or actions by the administrative judge evidenced a deep-seated
10
favoritism or antagonism that would make fair judgment impossible. See Bieber
v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002).
¶15 The appellant also asserts that the agency had more than a “moderate”
reason for retaliation, as found by the administrative judge, because senior
leaders and her supervisors were personally responsible for committing money to
the contracts and misappropriation of funding, one such individual acknowledged
a friendship with the contractor’s personnel, her supervisor wrote a contract
modification that “dismiss[ed]” most substantive requirements, the contract was
under criminal investigation and the supervisors were interviewed by the
investigators, and the agency created a hostile work environment by excluding her
from meetings, telephone calls and teleconferences, isolating her, denying her
training, ignoring her requests for an end to the hostile environment, refusing to
transfer her to a different division, and requiring her to spend a specific number
of hours on each of her projects. PFR File, Tab 1 at 23-25. The appellant
contends that the hostile work environment caused her to communicate more
directly and assertively and challenge what she believed were fraudulent and
abusive management practices regarding the contract. Id. at 25. The appellant
also notes that the agency had a motive to retaliate because the contract involved
the National Security Agency (NSA), which was under public scrutiny in
connection with the Edward Snowden release of classified information, and one
agency manager specifically noted with respect to the appellant’s communications
that there was a need to avoid public scrutiny of the NSA. Id. at 26.
¶16 We agree with the administrative judge that agency officials had at most a
moderate motive to retaliate against the appellant for her protected disclosures.
ID at 21. The administrative judge noted that the agency had de cided months
before the appellant’s first disclosure that the project upon which she based her
disclosures was neither successful nor cost effective and would be closed out
based on budgeting and effectiveness issues. ID at 21-22. Moreover, as the
administrative judge found, the appellant’s supervisor did not undermine her
11
whistleblowing activities, but instead informed her that it was her right to request
a formal security and contract review by an independent party if she believed
there was some impropriety regarding the project. ID at 22; IAF, Tab 35 at
34-35. The administrative judge also found that there was no apparent motive for
agency officials to retaliate against the appellant, and that any criminal
investigation relating to the contract was focused on a former DLIFLC official
who had left the agency to work for the contractor, not on the project or contract
itself or the recommending or acting officials in this case. ID at 23. The
administrative judge concluded that, even assuming that there was s ome motive
for the agency to retaliate against the appellant for her whistleblowing activities,
the motive was at most moderate and the motive-to-retaliate factor weighed in
favor of the agency. ID at 24. We find that the allegations set forth by the
appellant on review, even if true, do not establish that the agency had more than a
moderate motive to retaliate.
¶17 Finally, the administrative judge found that there was nothing in the record
to suggest that similarly situated nonwhistleblowers were treated mo re favorably
than the appellant. ID at 24. Even if the absence of such evidence could be
found to “cut slightly against the Government,” see Miller v. Department of
Justice, No. 2015-3149, 2016 WL 7030359, at *8 (Fed. Cir. Dec. 2, 2016), we are
nevertheless left with the firm belief that the agency would have taken the same
action in the absence of the appellant’s protected disclosures based on the
strength of the evidence in support of its action, including the evidence showing
that the agency had taken steps to separate the appellant from employment before
she made her first disclosure, and the absence of a sufficient motive to retaliate
against her, see Mithen v. Department of Veterans Affairs, 122 M.S.P.R. 489, ¶ 36
(2015) (holding that the Board does not view the Carr factors as discrete
elements, each of which the agency must prove by clear and convincing evidence;
rather, the Board will weigh the factors together to determine whether the
evidence is clear and convincing as a whole), aff’d, 652 F. App’x 971 (Fed. Cir.
12
2016); 5 C.F.R. § 1209.4(e) (defining “clear and convincing evidence” as that
measure or degree of proof that produces in the mind of the trier of fact a firm
belief as to the allegations sought to be established ).
¶18 Accordingly, we deny the petition for review and affirm the initial decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the
U.S. Court of Appeals for the Federal Circuit.
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the U.S. Court of Appeals for the
Federal Circuit or any court of appeals of competent jurisdiction. The court of
appeals must receive your petition for review within 60 days after the date of this
order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
to file, be very careful to file on time. You may choose to request review of the
Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other
court of appeals of competent jurisdiction, but not both. Once you choose to seek
review in one court of appeals, you may be precluded from seeking review in any
other court.
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
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title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information about the U.S. Court of Appeals for the Federal Circuit is
available at the court’s website, www.cafc.uscourts.gov. Of particular relevance
is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained
within the court’s Rules of Practice, and Forms 5, 6, and 11. Additional
information about other courts of appeals can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.