Aviles-Wynkoop v. Defense

Case: 19-1908 Document: 65 Page: 1 Filed: 09/02/2020

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

ELIZABETH AVILES-WYNKOOP,
Petitioner

v.

DEPARTMENT OF DEFENSE,
Respondent
______________________

2019-1908
______________________

Petition for review of the Merit Systems Protection
Board in No. DC-315H-16-0327-B-1.
______________________

Decided: September 2, 2020
______________________

ELIZABETH AVILES-WYNKOOP, Washington, DC, pro se.

DELISA SANCHEZ, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by ETHAN P.
DAVIS, REGINALD THOMAS BLADES, JR., ROBERT EDWARD
KIRSCHMAN, JR.
______________________

Before PROST, Chief Judge, LINN and TARANTO, Circuit
Judges.
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2 AVILES-WYNKOOP v. DEFENSE

PER CURIAM.
Elizabeth Aviles-Wynkoop began working as a pro-
gram analyst at the United States Department of Defense
(DoD) in June 2015. Two months later, DoD placed her on
administrative leave. In October 2015, DoD proposed to
terminate Ms. Aviles-Wynkoop’s employment, and after re-
ceiving her response, DoD terminated her employment in
January 2016. Ms. Aviles-Wynkoop appealed to the Merit
Systems Protection Board, which affirmed DoD’s termina-
tion decision on the merits. We affirm.
I
Before she began working at the DoD job at issue in
this matter, Ms. Aviles-Wynkoop served in other positions
in the federal government. She started with a temporary
appointment to a clerk typist position in September 1982,
which soon became a career conditional appointment. She
left that position in April 1990, but she returned to the fed-
eral government to work as a contract specialist from April
2003 to January 2009 and then worked as a contract over-
sight specialist from August 2011 to September 2014. Ms.
Aviles-Wynkoop joined DoD as a program analyst on June
29, 2015.
On August 13, 2015, Ms. Aviles-Wynkoop met with
Carol Ensley, Chief of Acquisition Management in Ms.
Aviles-Wynkoop’s department. Ms. Ensley informed Ms.
Aviles-Wynkoop that several employees had expressed con-
cerns about Ms. Aviles-Wynkoop’s behavior, which they
characterized as “inappropriate, overly aggressive, and un-
professional.” S.A. 63. Ms. Aviles-Wynkoop rejected the
characterization and, later that day, emailed Ms. Ensley
and Mr. Russell to address the behavior in question. S.A.
141. In that response, she stated that her behavior was
justified by a contractor’s misconduct and several co-work-
ers’ subpar work habits. S.A. 141–42. Two weeks later,
Ms. Aviles-Wynkoop missed a staff meeting, prompting an
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AVILES-WYNKOOP v. DEFENSE 3

email from Ms. Ensley asking Ms. Aviles-Wynkoop to pro-
vide notice of such absences in the future. S.A. 136. Ms.
Aviles-Wynkoop replied that she did not believe that she
had to report to Ms. Ensley. Id.
On August 28, 2015, Ms. Ensley placed Ms. Aviles-
Wynkoop on paid administrative leave. S.A. 58. Ms.
Ensley stated that the action did “not constitute a discipli-
nary or adverse action” and that Ms. Aviles-Wynkoop was
“expected to remain available by telephone during [her]
normal duty hours.” Id.
In a letter dated October 27, 2015, Ms. Ensley proposed
that Ms. Aviles-Wynkoop be terminated from her position.
S.A. 60. The letter began with a statement that Ms. Aviles-
Wynkoop had not yet served a full “probationary period”
and was thus a “true probationer with limited pre-termi-
nation procedural rights and post-termination appeal
rights.” Id. The rest of the letter laid out the reasons for
the proposal—Ms. Aviles-Wynkoop had refused to recog-
nize Ms. Ensley as a supervisor; had “demonstrated a pat-
tern of discourteous behavior towards contractors, fellow
employees and management”; had refused to modify her
behavior after being reprimanded; and had sent inappro-
priate emails to senior staff. S.A. 62–64. The letter con-
cluded that Ms. Aviles-Wynkoop had ten days to submit an
oral or written response, could “submit affidavits and other
documentary evidence,” and could seek the assistance of
“an attorney or other representative.” S.A. 65.
Because Ms. Aviles-Wynkoop did not receive the letter
until November 6, 2015, she had until November 16, 2015,
to submit a reply. She requested two extensions of the due
date, and DoD and Ms. Aviles-Wynkoop agreed that she
would present an oral reply on December 14, 2015, at the
Pentagon. On December 11, 2015, Ms. Aviles-Wynkoop re-
quested a third extension, which DoD denied. She and DoD
agreed on a time on December 14 for her personal
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appearance at the Pentagon, but she did not appear at that
time, notifying DoD an hour later that she had experienced
car troubles. She did, however, submit a written response.
On January 4, 2016, DoD terminated Ms. Aviles-
Wynkoop’s employment. In a written decision, Jerry Rus-
sell, Deputy Chief of the Business Resource Center, noted
that Ms. Aviles-Wynkoop had not “dispute[d] the fact that
any of the charged misconduct occurred”—she “merely pro-
vided the reasons [she] engaged in the misconduct.” S.A.
69. Finding that those explanations did not “negate” the
conduct, Mr. Russell evaluated the proposed penalty of ter-
mination. He stated that Ms. Aviles-Wynkoop was a “true
probationer,” S.A. 68, and on that premise found removal
appropriate because Ms. Aviles-Wynkoop had not “demon-
strated the ability to perform the essential functions of
[her] position” and termination was necessary to “promote
the efficiency of the service,” S.A. 70. Mr. Russell went on,
however, to decide that termination was the appropriate
penalty, considering “all relevant Douglas factors,” even on
the assumption that Ms. Aviles-Wynkoop was a full em-
ployee. Id. Although Mr. Russell noted that the absence of
a disciplinary record and her lengthy previous service were
mitigating factors, he concluded that those factors were
outweighed by several aggravating factors—her inflamma-
tory behavior, the nature of her position, her direct insub-
ordination, and her refusal to apologize—and the fact that
a DoD manual recommended removal. S.A. 70–71.
On February 3, 2016, Ms. Aviles-Wynkoop appealed
her termination to the Board. In late March, the adminis-
trative judge assigned to the matter dismissed the appeal
for lack of jurisdiction, determining that Ms. Aviles-
Wynkoop had only probationary status. But the full Board
vacated that decision, explaining that there was a genuine
issue of material fact as to whether Ms. Aviles-Wynkoop’s
previous federal service qualified her to skip the probation-
ary period. In January 2017, the administrative judge
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AVILES-WYNKOOP v. DEFENSE 5

found Ms. Aviles-Wynkoop to qualify as a full employee,
thus giving the Board jurisdiction. Ms. Aviles-Wynkoop
agreed to waive her right to an evidentiary hearing with
witnesses testifying live, and the administrative judge set
a March deadline for the submission of evidence. DoD sub-
mitted affidavits from Ms. Ensley, Mr. Russell, and oth-
ers. 1
On May 24, 2017, the administrative judge issued an
initial decision, which affirmed DoD’s decision to terminate
Ms. Aviles-Wynkoop. The administrative judge first ex-
plained that there was a sufficient connection between Ms.
Aviles-Wynkoop’s “unprofessional behavior in the office”
and her “ability to accomplish her duties satisfactorily.”
S.A. 9. Turning to the reasonableness of the penalty, the
administrative judge noted that a “failure to follow instruc-
tions may be sufficient cause for removal.” S.A. 10. Ms.
Aviles-Wynkoop, he wrote, had committed several acts of
misconduct and “each act of unprofessional conduct consti-
tuted intentional conduct of a serious nature.” Id. Moreo-
ver, Ms. Aviles-Wynkoop had failed to correct her behavior
despite a clear warning from her supervisor. Id. Accord-
ingly, the administrative judge concluded, “the removal
penalty comes within the bounds of reasonableness.” Id.
The administrative judge also rejected Ms. Aviles-

1 Ms. Aviles-Wynkoop suggests that it was improper
for the Board to rely on those affidavits because they pre-
sented evidence that was not included in the notice of pro-
posed termination. Petitioner’s Supp. Br. at 12–13. The
affidavits, however, were submitted before the evidentiary
deadline establish by the administrative judge. And Ms.
Aviles-Wynkoop has not identified any requirement that
an agency attach to a notice of proposed termination all ev-
idence of the misconduct described in the notice.
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Wynkoop’s claims that she had been denied due process
and removed in retaliation for whistleblowing. S.A. 14–17.
Ms. Aviles-Wynkoop initially sought review by the full
Board. Before receiving a final decision from the full
Board, she filed a petition in this court as well. Because
the Board had not rendered a final decision, we ordered her
to show cause why the petition filed in this court should not
be dismissed as premature. She then withdrew her request
for review by the full Board, thereby making the adminis-
trative judge’s initial decision the final decision of the
Board, which we have jurisdiction to review under 28
U.S.C. § 1295(a)(9).
II
We must affirm the Board’s determinations unless they
are “(1) arbitrary, capricious, an abuse of discretion, or oth-
erwise 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). Ms. Aviles-Wynkoop argues that the
Board committed reversible error in reviewing three chal-
lenges—that DoD did not properly assess the factors rele-
vant to imposing the penalty of removal, deprived her of
due process, and retaliated against her for two protected
whistleblowing disclosures. We reject Ms. Aviles-
Wynkoop’s arguments.
A
To sustain an adverse employment action based on im-
proper conduct, an agency must establish not only that the
charged conduct occurred and was sufficiently connected to
the efficiency of the government service, but also that the
penalty imposed was reasonable. Bryant v. Nat’l Sci.
Found., 105 F.3d 1414, 1416 (Fed. Cir. 1997). Of those el-
ements, Ms. Aviles-Wynkoop focuses here only on the rea-
sonableness of the penalty. The Board’s review of an
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AVILES-WYNKOOP v. DEFENSE 7

agency-imposed penalty “is highly deferential,” and “[i]t is
well-established that selecting the penalty for employee
misconduct is left to the agency’s discretion.” Webster v.
Dep’t of Army, 911 F.2d 679, 685 (Fed. Cir. 1990).
Ms. Aviles-Wynkoop argues that DoD failed to consider
factors that are relevant to a penalty’s reasonableness un-
der Douglas v. Veterans Admin., 5 M.S.P.R. 280, 302, 305
(1981). But she does not show that DoD disregarded or
misevaluated pertinent Douglas factors. More particu-
larly, she does not show that the Board abused its discre-
tion in determining that DoD reasonably considered the
Douglas factors. S.A. 9–11.
The Board concluded that Mr. Russell, the deciding of-
ficial, “appropriately determined that the appellant’s re-
moval was warranted under the facts and circumstances of
this case.” S.A. 10. Mr. Russell described Ms. Aviles-
Wynkoop’s behavior and listed several factors he consid-
ered to be aggravating: the nature of her job, which re-
quired her to “evaluate contractor employee performance,
review programs, collaborate with customers in developing
budgets and spend plans, and conduct presentations and
briefings”; her refusal to recognize her supervisor; her con-
tinued misconduct after the August 13, 2015 warning; and
her lack of remorse. S.A. 71. Each of those factors corre-
sponds, respectively, to a Douglas factor—“the employee’s
job level and type of employment, including supervisory or
fiduciary role”; “the employee’s ability to perform at a sat-
isfactory level and its effect upon supervisors’ confidence in
the employee’s ability to perform assigned duties”; “the
clarity with which the employee was on notice of any rules
that were violated”; and the “potential for the employee’s
rehabilitation.” 5 M.S.P.R. at 305. Mr. Russell also con-
sulted DoD’s manual for “Disciplinary and Adverse Ac-
tions” and found that, even for a first-time offense,
termination was a recommended penalty for insubordina-
tion. S.A. 71. This analysis matches another of the
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8 AVILES-WYNKOOP v. DEFENSE

Douglas factors—“consistency of the penalty with any ap-
plicable agency table of penalties.” 5 M.S.P.R. at 305. And
Mr. Russell expressly noted his consideration of Ms. Aviles-
Wynkoop’s length of service and lack of disciplinary record
as mitigating factors. S.A. 71.
We see no reversible error in the Board’s conclusion
that DoD adequately considered the relevant penalty fac-
tors.
B
The for-cause removal protections of 5 U.S.C. § 7513(a)
entitle federal employees to procedural due process rights.
Stone v. FDIC, 179 F.3d 1368, 1375 (Fed. Cir. 1999). “The
essential requirements of due process . . . are notice and an
opportunity to respond.” Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 546 (1985). And in the specific
context of a tenured public employee whose termination
has been proposed, “[t]he tenured public employee is enti-
tled to oral or written notice of the charges against him, an
explanation of the employer’s evidence, and an opportunity
to present his side of the story.” Id. We have endorsed this
standard in the agency context, highlighting the “need for
a meaningful opportunity for the public employee to pre-
sent his or her side of the case.” Stone, 179 F.3d at 1376.
Ms. Aviles-Wynkoop’s informal brief in this court as-
serts that DoD committed a “gross abuse of due process.”
Petitioner’s Br. at 1 (response to question 2). Before the
Board, Ms. Aviles-Wynkoop specified two alleged due-pro-
cess violations. First, she said, DoD incorrectly informed
her that she was serving a probationary period. “A notice
of proposed removal that mischaracterizes the proceedings
as a probationary removal,” she argued, “cannot be said to
have provided an employee a ‘meaningful opportunity to
respond.’” Petition at 3–4. Second, she said, Mr. Russell
relied, in his termination decision, on certain grounds “not
specified in the proposal notice.” Id. at 4.
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As to the first, Ms. Aviles-Wynkoop has not shown that
DoD’s initial mistake about her probationary or full-em-
ployee status deprived her of the guaranteed right to re-
spond to the proposed termination. Section 7513(b)(2)
provides that an employee faced with a proposed termina-
tion “is entitled to . . . a reasonable time, but not less than
7 days, to answer orally and in writing and to furnish affi-
davits and other documentary evidence in support of the
answer.” Ms. Aviles-Wynkoop had more than a month to
craft an answer—she received the proposal on November
6, 2015, and was allowed until December 14, 2015, to re-
spond. S.A. 67. The letter of proposed termination ex-
pressly invited her to submit affidavits and documentary
evidence. S.A. 65. Although Ҥ 7513 . . . do[es] not provide
the final limit on the procedures the agency must follow,”
Stone, 179 F.3d at 1375, Ms. Aviles-Wynkoop has not
stated with particularity what required process she was de-
nied. We therefore reject her first procedural challenge.
We also reject Ms. Aviles-Wynkoop’s second procedural
challenge specified in her petition to the Board—that Mr.
Russell “relied on several aggravating factors and charac-
terizations not specified in the proposal notice.” Petition at
4. Specifically, Ms. Aviles-Wynkoop pointed to Mr. Rus-
sell’s findings that her alleged misconduct caused a “hostile
environment,” that several employees submitted formal
complaints to her supervisor, that she did not apologize for
her behavior, that she was “progressively counseled” by a
supervisor, and that her misconduct was both “imperti-
nent” and “intimidating.” Id. But Ms. Aviles-Wynkoop has
not shown that DoD failed to provide adequate “notice of
the charges against” her in these respects. Loudermill, 470
U.S. at 546.
In the letter proposing termination, DoD stated that
Ms. Aviles-Wynkoop had previously been reprimanded for
“inappropriate, overly aggressive, and unprofessional con-
duct” and had “explicitly exhibit[ed] . . . disdain and utter
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10 AVILES-WYNKOOP v. DEFENSE

disrespect for contractors.” S.A. 63. The Board properly
determined that these statements put Ms. Aviles-Wynkoop
on notice that she was being accused of creating a “hostile
environment” and of acting in a manner that was “imperti-
nent” and “intimidating.” Similarly, in the letter, DoD
highlighted the August 13 meeting in which Ms. Ensley
“gave [Ms. Aviles-Wynkoop] documentation regarding spe-
cific observations and concerns pertaining to [the con-
duct].” Id. This statement, and the meeting itself, was
enough to put Ms. Aviles-Wynkoop on notice that her co-
workers had filed complaints about her behavior. DoD fur-
ther stated in the letter of proposed termination that Ms.
Ensley had on multiple occasions—once by email and once
in person—advised Ms. Aviles-Wynkoop to modify her be-
havior. S.A. 62–63. The reference to Ms. Ensley’s commu-
nications provided sufficient notice of what Mr. Russell
later used the words “progressively counseled” to describe.
Finally, DoD stated in its letter that when Ms. Aviles-
Wynkoop was confronted about her behavior, she “at-
tempted unsuccessfully to justify [her] professional con-
duct.” S.A. 63. This statement sufficiently gave notice of
DoD’s belief in Ms. Aviles-Wynkoop’s lack of remorse.
C
Under 5 U.S.C. § 2302(b)(8)(A), an agency may not take
“a personnel action” against an employee who makes a pro-
tected disclosure, i.e., “any disclosure of information” that
the employee “reasonably believes evidences . . . any viola-
tion of any law, rule, or regulation, or . . . gross misman-
agement, a gross waste of funds, an abuse of authority, or
a substantial and specific danger to public health or
safety.” If an employee establishes the existence of a pro-
tected disclosure, and further establishes that the pro-
tected disclosure was a “contributing factor” to the agency’s
decision to take the personnel action, the agency may de-
feat the whistleblowing defense to the adverse action by
demonstrating that it would have taken the action
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AVILES-WYNKOOP v. DEFENSE 11

regardless of the protected disclosure. See Carr v. Soc. Se-
curity Admin., 185 F.3d 1318, 1322 (Fed. Cir. 1999); 5
U.S.C. § 1221(e).
Ms. Aviles-Wynkoop argued to the Board that she had
made two protected disclosures before the agency’s termi-
nation decision. The first was in her August 13, 2015,
email exchange with Ms. Ensley and Mr. Russell. Petition
at 2 (referring to S.A. 141–42). In that exchange, she al-
leged, she “disclose[d] [her] belief that the contractors who
were working in her office had access to privileged infor-
mation in violation of agency rules” and that “contractors
w[]ere still providing maintenance services to the cyber se-
curity office even though the maintenance agreement had
expired.” Id. The second protected disclosure, she con-
tended, was in a phone call to a DoD Inspector General hot-
line, in which she stated that a certain contractor had
failed to do its job properly. Id.
Substantial evidence supports the Board’s finding
that—even if, as we may assume without deciding, the
specified disclosures qualified as “protected” and contrib-
uted to DoD’s termination decision—DoD would have made
the same decision to terminate in the absence of those dis-
closures. In Carr, we stated that the following factors are
relevant to this inquiry: “the strength of the agency’s evi-
dence 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 evi-
dence that the agency takes similar actions against em-
ployees who are not whistleblowers but who are otherwise
similarly situated.” 185 F.3d at 1323. Here, the Board de-
termined that DoD proved its firm belief that Ms. Aviles-
Wynkoop created a “toxic” work environment; the hotline
complaint was made months after Ms. Aviles-Wynkoop had
already been placed on administrative leave; and most of
the relevant misconduct took place before the August 13
email exchange. S.A. 17. On this record, we cannot say
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12 AVILES-WYNKOOP v. DEFENSE

that the Board committed reversible error in finding that
DoD would have taken the same termination action had
the alleged disclosure never been made.
III
Ms. Aviles-Wynkoop has a filed a motion in this court
asking us to direct DoD to produce to her all of her work-
related emails from June 29, 2015, to January 4, 2016. We
deny the motion. The appropriate time for seeking discov-
ery was when the matter was before the Board, whose rules
provide for discovery and give the administrative judge
wide discretion regarding discovery. See 5 C.F.R.
§§ 1201.41, 1201.73; Curtin v. Off. of Pers. Mgt., 846 F.2d
1373, 1378–79 (Fed. Cir. 1988). Ms. Aviles-Wynkoop has
not identified any Board error regarding discovery in this
case or provided any other basis for us, as an appellate
court, to act regarding further document discovery at this
stage.
IV
For the foregoing reasons, the decision of the Board is
affirmed.
The parties shall bear their own costs.
AFFIRMED