LARRY BACA, Petitioner, v. DEPARTMENT OF THE ARMY, Respondent. MERIT SYSTEMS PROTECTION BOARD, Intervenor.
No. 19-9536 (MSPB No. DE-0752-19-0022-I-1)
United States Court of Appeals for the Tenth Circuit
December 22, 2020
PUBLISH
ORDER
Before BACHARACH, SEYMOUR, and McHUGH, Circuit Judges.
The rehearing petition and the attached revised opinion were transmitted to all non-recused judges of the court who are in regular active service. As no judge requested that the court be polled, the request for rehearing en banc is denied. See
Entered for the Court
CHRISTOPHER M. WOLPERT, Clerk
LARRY BACA, Petitioner, v. DEPARTMENT OF THE ARMY, Respondent. MERIT SYSTEMS PROTECTION BOARD, Intervenor.
No. 19-9536 (No. DE-0752-19-0022-I-1)
United States Court of Appeals Tenth Circuit
December 22, 2020
PUBLISH
PETITION FOR REVIEW FROM AN ORDER OF THE MERIT SYSTEMS PROTECTION BOARD
Andrew B. Indahl, Altura Law Firm, Albuquerque, New Mexico for Petitioner.
Domenique Kirchner, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, Department of Justice (Joseph H. Hunt, Assistant Attorney General; Robert E. Kirschman, Jr., Director, United States Department of Justice, Civil Division, National Courts Section; Elizabeth M. Hosford, Assistant Director, United States Department of Justice, Civil Division, National Courts Section, with her on
Tristan L. Leavitt, General Counsel; Katherine M. Smith, Deputy General Counsel; Stephen Fung, Attorney, Office of the General Counsel, Merit Systems Protection Board, Washington, D.C, for Intervenor.
Before BACHARACH, SEYMOUR, and MCHUGH, Circuit Judges.
SEYMOUR, Circuit Judge.
On September 18, 2018, Mr. Larry Baca was removed from his position in the Directorate of Public Works at the U.S. Army White Sands Missile Range, New Mexico. Mr. Baca sought review of this decision by the Merit Systems Protection Board (MSPB), asserting three affirmative defenses to his removal. The MSPB rejected all of Mr. Baca‘s defenses and affirmed his removal. He appeals only the MSPB‘s determination with respect to one of his affirmative defenses, that his firing was unlawful retaliation for whistleblowing in violation of the Whistleblower Protection Act (WPA),
I. Background
In October 2017, Mr. Baca was hired by the U.S. Army White Sands Missile Range in New Mexico as a Supervisory Engineer, GS-13, and Chief of the Operations and Maintenance Division in the Directorate of Public Works. In July 2018, Mr. Baca received a notice of proposed removal that charged him with: (1) conduct unbecoming a federal employee; (2) interfering with an agency investigation; (3) abusive, offensive, disgraceful or inflammatory language; and (4) lack of candor. Mr. Baca submitted a written response to his notice of removal stating that every charge was a “False Utterance.” Admin. R., vol. I at 185–89. Mr. Baca was removed from his position on September 18, 2018.
He appealed his removal to the Merit Systems Protection Board (MSPB). An administrative judge (AJ) adjudicated the appeal in an initial decision and determined that two of the charges were established and warranted removal. Admin. R., vol. II at 694, 723, 736. That decision became the final decision of the MSPB after neither party petitioned for further review.1 We review the details of each of the charges in order to provide context and then we turn to Mr. Baca‘s affirmative defenses.
The AJ sustained the charge of conduct unbecoming a federal employee based on several specifications of misbehavior by Mr. Baca. First, Mr. Baca was accused by five colleagues of showing them pornography at work. The AJ determined that Mr. Baca had shown colleagues pornography on his cellphone on multiple occasions and had threatened two colleagues with repercussions if they told anyone about the pornography he showed them.
In addition, at least two of Mr. Baca‘s female colleagues reported that he had made unwanted romantic advances and inappropriate comments toward them. In one instance, Mr. Baca told Robin Pritchett he liked her and asked her to go dancing with him, continuing his advances despite her repeated refusals. Based upon his conduct, Ms. Pritchett filed an EEO sexual harassment complaint against Mr. Baca in March 2018. In May 2018, Mr. Baca filed an EEO sexual harassment complaint accusing Ms. Pritchett of making unwanted romantic advances toward him. In his written response to the removal charges and at his hearing before the MSPB, however, Mr. Baca did not mention his EEO complaint against Ms. Pritchett but instead simply denied Ms. Pritchett‘s accusations.
After an evidentiary hearing, the AJ found that Mr. Baca had made unwelcome romantic advances toward two female colleagues and that his denials were not credible. Regarding the incident with Ms. Pritchett, the AJ noted it was “inherently improbable that, if there were any truth to [Mr. Baca‘s] accusation that Pritchett was the one sexually harassing him, [he] did not raise that claim either in his written response to the proposal to remove him or at the Board‘s hearing.” Id. at 706. Based upon these findings and others, the AJ sustained charge one for conduct unbecoming a federal employee.
B. Charge 2: Interfering with an agency investigation
The charge of interfering with an agency investigation was based upon a single specification that on March 8, 2018, Mr. Baca attempted to intimidate his colleague, Bill Huls, in order to secure a written statement that Ms. Pritchett battered another coworker, Gus Alvidrez. Another Army employee, Cecilia Montoya, testified that she overheard Mr. Baca pressuring Mr. Huls for almost three hours to write a statement. Notably, she had written a contemporaneous email to Ms. Pritchett describing what she overheard. The AJ credited Ms. Montoya‘s testimony and found that Mr. Baca had tried to intimidate Mr. Huls into providing information on behalf of Mr. Alvidrez. But the AJ did not sustain this charge because there was insufficient evidence that the attempt to intimidate Mr. Huls interfered with a government investigation.
C. Charge 3: Abusive, Offensive, Disgraceful or Inflammatory Language
Mr. Baca was charged with using abusive, offensive, disgraceful or inflammatory language during several incidences in which he used derogatory terms to refer to his colleagues. Based upon the testimony of his coworkers, the AJ found that four of the five specifications were established, including several incidences of Mr. Baca using derogatory Spanish terms to refer to his colleagues.
D. Charge 4: Lack of Candor
The agency charged Mr. Baca with lack of candor based upon his statement to an investigator that his “daily interaction with Robin Pritchett and other subordinates [was] always extremely professional.” Admin. R., vol. I at 15. The charge asserted that Mr. Baca misstated his interaction with Ms. Pritchett because he “had in fact
E. Affirmative Defenses
In addition to denying the charges against him, Mr. Baca raised several affirmative defenses. He originally asserted that his removal was retaliation for his refusal to follow two unlawful orders by his superior to sign off on an expensive janitorial contract. Mr. Baca subsequently amended his affirmative defenses, claiming that his removal was reprisal for (1) a whistleblower disclosure against Ms. Pritchett; (2) two whistleblower disclosures of “gross mismanagement” related to a janitorial contract; and (3) an EEO discrimination complaint. Aple. App, vol. I at 445–49. The AJ concluded that Mr. Baca failed to establish any of his affirmative defenses. The MSPB‘s decision became final on April 4, 2019, after neither party petitioned for administrative review.
Mr. Baca appeals only the Board‘s decision with respect to one affirmative defense: that his removal was a reprisal for whistleblowing against Ms. Pritchett. The facts relevant to this defense pertain to a meeting that took place on March 7, 2018. All parties agreed that Ms. Pritchett, Mr. Huls, and Mr. Baca were together in Ms. Pritchett‘s office for a meeting when Mr. Alvidrez entered Ms. Pritchett‘s office. She became angry, asked Mr. Alvidrez to leave, and the door slammed shut behind him. Mr. Baca claimed that he heard the doorknob strike Mr. Alvidrez in the back, that he immediately told Ms. Pritchett she had hit Mr. Alvidrez with the door, that Mr. Huls agreed with him, and that Mr. Baca then ended the meeting. The Army denied that Mr. Baca witnessed the doorknob hitting Mr. Alvidrez and also denied Mr. Baca‘s assertion that he stopped the meeting after accusing Ms. Pritchett of striking Mr. Alvidrez.
The following day, Mr. Baca asked Mr. Huls to provide a written statement about what he had observed during the meeting. The Army asserted that Mr. Baca was attempting to intimidate and pressure Mr. Huls into providing a statement to support Mr. Baca‘s version of the meeting. Mr. Huls refused Mr. Baca‘s request to provide a statement on March 8th but did provide one on March 16th at the request of his supervisor. With respect to Ms. Pritchett shutting the door when Mr. Alvidrez left the meeting, Mr. Huls’ statement said:
Ms. Pritchett was right there by the door when Mr. Alvidrez turned around to leave. Ms. Pritchett did grab the door and shut it. It might have slammed shut but that door had a broken door closure and it wouldn‘t take much for it to sound like it was slammed shut, so I can‘t really confirm that it was slammed.
Id. at 239. An AR 15-6 investigation was conducted into the alleged assault and it concluded that Ms. Pritchett had not struck Mr. Alvidrez with the doorknob.
II. Jurisdiction
We must address two jurisdictional questions of first impression that are presented in this case: (1) whether this court has jurisdiction to review a whistleblower retaliation claim brought before the MSPB as an affirmative defense to an employment action, and (2) whether we have jurisdiction over a case raising both discrimination and whistleblower retaliation defenses before the MSPB where the discrimination
The Court of Appeals for the Federal Circuit generally has jurisdiction over final decisions by the MSPB,
[A] final order or final decision of the [MSPB] that raises no challenge to the Board‘s disposition of allegations of a prohibited personnel practice described in [5 U.S.C.] section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C) or (D) shall be filed in the United States Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.
A. Retaliation Claim as Affirmative Defense
There are two ways whistleblower retaliation claims arise before the MSPB: (1) a stand-alone claim under
B. Waiver of Employment Discrimination Claim
As we have noted, Mr. Baca originally challenged his removal as retaliation
III. Discussion
We must affirm the decision of the MSPB 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) unsupported by substantial evidence.”
Mr. Baca claims that his removal was in retaliation for his protected disclosure to his supervisor, Jose Gallegos, that he witnessed Ms. Pritchett slam her office door into Mr. Alvidrez‘s back and injure him. An agency may not remove an employee for whistleblowing,
The final decision of the MSPB denied Mr. Baca‘s whistleblower reprisal claim based upon its finding that he did not reasonably believe his disclosure evidenced a violation. Mr. Baca challenges the Board‘s ruling as arbitrary, capricious, and contrary to law, claiming that it ignored his primary theory of relief, applied the wrong legal standard, and ignored evidence that supported his reasonable belief that Ms. Pritchett battered Mr. Alvidrez.
A. Lawful Assistance Under 5 U.S.C. § 2302(b)(9)(B)
Mr. Baca first contends the AJ “completely ignored” his primary theory that he sought a statement from Mr. Huls in order to assist Mr. Alvidrez in exercising his right to disclose the alleged assault. Aplt. Br. at 12. “Testifying for or otherwise lawfully assisting any individual in the exercise” of the right to an appeal, complaint, or grievance granted by law is protected under the Whistleblower Protection Act.
Here, the AJ credited the sworn statements of both Ms. Montoya and Mr. Huls. Ms. Montoya overheard the interaction between Mr. Huls and Mr. Baca and provided a sworn written statement that Mr. Baca spent “easily 3 hours intimidating [Mr. Huls] into writing a statement about what happened that morning in [Ms.Pritchett‘s] Office.” Admin. R., vol. I at 45. Her statement is consistent with a contemporaneous email she sent to Ms. Pritchett in which she said she could overhear Mr. Baca “hammering [Mr. Huls] about this statement since about 0730,” “telling [Mr. Huls] to ‘tell the story in his statement’ . . . [and] ‘paint the picture,‘” and also explaining that she heard Mr. Huls respond to Mr. Baca, “I‘m not putting all that in my statement.” Id. at 463. In Mr. Huls’ written statement, he explained that he felt “uncomfortable” when Mr. Baca asked him to provide a statement about the incident. Id. at 38. He also said that “Mr. Baca‘s conversational interactions within the Division with personnel at times, gave me the impression of intimidation and perhaps humiliation.” Id. He reiterated this position in his oral testimony before the AJ:
[Mr. Baca] would bring people in, he would talk to them, it was almost like an interrogation and . . . I thought that was very unprofessional . . . it was very intimidating . . . having all those people standing around, people [who] had no business being there.
Aple. Supp. App. at 104–05. In considering Mr. Baca‘s claim that he was not trying to intimidate Mr. Huls, the AJ cited Ms. Montoya‘s sworn statement and found it “implausible given Montoya‘s undisputed testimony that [Mr. Baca] was in Huls’ office pushing him for almost three hours,” Admin. R., vol. II at 717, and given the corroborating evidence from Mr. Huls’ statement and Ms. Montoya‘s email.
Attempting to intimidate a witness into providing a false statement is not protected conduct under the WPA. The Act protects an employee from adverse personnel actions for “testifying for or otherwise lawfully assisting” another in exercising their right as a whistleblower.
Mr. Baca argues that as a supervisor of Mr. Alvidrez, he was required by Army and DoD policy to investigate and report on incidences of workplace violence.6 The Army
asserts that Mr. Baca waived this argument by not previously citing either the Army policy notice or DoD instruction. Generally, courts will not consider an issue on appeal if it was not raised before the administrative court. Sistek v. Dep‘t of Veterans Affairs, 955 F.3d 948, 953 n.1 (Fed. Cir. 2020) (concluding “argument is forfeited for failure to present it to the Administrative Judge in the
Notably, however, Department of Defense (DoD) policies governing workplace conduct also clearly state that “[v]iolence, threats, harassment, intimidation, and other disruptive behavior will not be tolerated in the workplace,” and that employees who engage in these practices will be subject to disciplinary actions including removal. DoD Instruction No. 1438.06 (3) (emphasis added). While Mr. Baca is correct that providing lawful assistance is a protected activity under
In sum, although Mr. Baca may have had a duty to investigate and Mr. Alvidrez may have had a right to report any injury, Mr. Baca‘s attempt to intimidate Mr. Huls is not protected conduct. After a review of the record, we are not persuaded by Mr. Baca‘s claim that the Board failed to consider his theory that he sought a statement from Mr. Huls in order to assist Mr. Alvidrez in exercising his right to disclose an alleged assault by Ms. Pritchett. Rather, the AJ credited other employees who saw or overheard the incident and contradicted Mr. Baca.
B. Substantial Evidence Under 5 U.S.C. § 7703(c)(3)
Next, Mr. Baca contends the AJ‘s determination was not supported by substantial evidence because the record included facts known to Mr. Baca which support a reasonable belief that a violation occurred, including corroborative evidence. We review the factual findings of the agency to ensure they are supported by “substantial evidence,”
To be entitled to protection under the WPA, an employee must “reasonably believe[]” that his/her disclosure relates to “(i) any violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.”
I find no dispute that on March 7, 2018, Pritchett, Huls, and the appellant were in Pritchett‘s office for a meeting, and when Alvidrez came into her office, Pritchett became angry, told Alvidrez to leave, and closed the door in a manner that the door slammed behind Alvidrez. Beyond that, the witnesses’ accounts diverge.
Admin. R., vol. II at 725. As a part of the May 2018 agency investigation, both Ms. Pritchett and Mr. Huls provided written statements contradicting Mr. Baca‘s claim that he witnessed the door hit Mr. Alvidrez. Admin. R., vol. I at 38–40, 62–65. The AJ noted that Mr. Huls’ statement on March 16, 2018, was “entirely inconsistent” with Mr. Baca‘s testimony. Admin. R., vol. II at 726; see also Admin. R., vol. I at 239–40. In addition, Ms. Pritchett testified that she had a “little window” on her door through which she could see that Mr. Alvidrez was no longer in front of the door when she shut it. Aple. Supp. App. at 82. Reviewing all of the evidence, the AJ determined that Mr. Baca‘s testimony was not credible.8
Mr. Baca also maintains that instead of applying the reasonable belief standard, the AJ incorrectly relied on the factors specified in Hillen v. Dep‘t of Army, 35 M.S.P.R. 453 (M.S.P.B. 1987), to assess which “set of competing disputed facts [was] true.” Aplt. Br. at 13. We are not persuaded. Hillen sets out the “general internal procedural requirements that the MSPB has established for its adjudicative processes” in order to resolve issues of credibility. Haebe v. Dep‘t of Justice, 288 F.3d 1288, 1301–02 n.32 (Fed. Cir. 2002). An AJ‘s determination as to the credibility of a whistleblower, however, is relevant to the reasonable belief assessment. Kahn, 618 F.3d at 1313; see also Horton v. Dep‘t of Navy, 66 F.3d 279, 283 (Fed. Cir. 1995) (“credibility is indeed relevant in determining [the whistleblower‘s] reasonable belief“), superseded by statute on other grounds see Armstrong v. The Arcanum Group, Inc., 897 F.3d 1283, 1287 (10th Cir. 2018).
The AJ provided three additional reasons for his determination that Mr. Baca‘s version of events was not believable. First, Mr. Baca‘s claim that the door hit Mr. Alvidrez during the meeting was implausible because he could not have seen the door hit Mr. Alvidrez from his location in Ms. Pritchett‘s office. In addition, Mr. Alvidrez testified that he walked away and did not return to alert anyone he had been struck by the door. Aple. Supp. App. at 397. Second, the AJ found implausible Mr. Baca‘s claim that he immediately accused Ms. Pritchett of battery, that Mr. Huls agreed with his accusation, and that Mr. Baca then stopped the meeting because his
With virtually no citations to the record, Mr. Baca also contends the AJ “ignored and failed to address a mountain of evidence” including the testimony of Mr. Alvidrez as well as medical records that allegedly corroborate his testimony. Aplt. Br. at 17. An AJ is required to decide whether a whistleblower had a reasonable belief based upon the facts “known to [or] readily ascertainable by” the whistleblower.
Mr. Baca failed to introduce credible evidence to establish the relevance of Mr. Alvidrez‘s testimony or medical records. While Mr. Baca testified that immediately after the incident he received an email from Mr. Alvidrez “saying he was going to the McAfee Clinic . . . [and] that he was going to the Department, the Director of Emergency Services to report the incident,” Aple. Supp. App. at 205, the AJ determined Mr. Baca was not credible. Indeed, Mr. Baca‘s testimony is contradicted by Mr. Alvidrez, who testified that he sent an email to Mr. Baca and Mr. Gallegos after returning from the McAfee Clinic. He testified the email said that he “was going home because [he] had a lower-back injury,” without mentioning that he had gone to the medical clinic or that the injury was Ms. Pritchett‘s fault. Id. at 400–01. The email is not included in the record and the record does not otherwise contain any evidence that Mr. Alvidrez communicated to Mr. Baca, prior to Mr. Baca‘s disclosure, that he suffered an assault or sought medical treatment. Based upon the evidence included in the agency record, the AJ focused his assessment on Mr. Baca‘s claim that he witnessed the events inside Ms. Pritchett‘s office and correctly disregarded Mr. Alvidrez‘s testimony and the medical evidence as irrelevant to assessing Mr. Baca‘s reasonable belief at the time of his disclosure.
Because we affirm the AJ‘s finding that Mr. Baca did not make a protected disclosure under