Opimon for the court filed by Circuit Judge HENDERSON.
David F. Power petitions the court to review an order of the Federal Labor Relations Authority (FLRA or Authority),
Pension Benefit Guar. Corp.,
52 F.L.R.A. No. 132 (April 30, 1997), dismissing his wrongful termination claim against his former employer, the Pension Benefit Guaranty Corporation (PBGC). In
Pension Benefit Guar. Corp. v. FLRA,
we remanded to the FLRA to explain more adequately its decision in favor of Power.
I.
In the late 1980s Power was employed as a lawyer in the Office of General Counsel (OGC) of the PBGC and served as president of Local Chapter 211 of the National Treasury Employees Union (NTEU). As we earlier recounted, Power was fired from Ms position at PBGC due to “many incidents of ... insubordinate conduct.”
Pension Benefit Guar. Corp.,
Power enlisted the assistance of the NTEU, which began an unfair labor practice claim on Power’s behalf, alleging that Power had been discharged in violation of the Federal Service Labor-Management Relations Statute (FSLMRS), 5 U.S.C. § 7116(a)(1) and (a)(2) (making it “unfair labor practice” to discriminate against employee based on union affiliation), for engaging in protected activity under 5 U.S.C. § 7102 (providing each employee with “right” to affiliate with labor organization “without fear of penalty or reprisal” and “to act for a labor organization in the capacity of a representative”). Power claimed that his refusal to provide a writing sample was a “protected activity” because he was “actively engaged in a grievance over the exact subject matter for which the writing sample was requested.” Pet’r Br. at 18-19. Power also asserted that he was engaged in “protected activity” when he obtained the computer survey data, refused to return it and refused -to answer questions about it because “[a]ll of these actions were undertaken solely for the purpose of representing the interest of the bargaining unit in negotiations with PBGC over ergonomic furniture.” Id. at 19.
The Administrative Law Judge (ALJ) who heard the claim recommended dismissal.
Pension Benefit Guar. Corp.,
PBGC appealed and we reversed, remanding the matter to the FLRA for further consideration. We began by noting:
We need not decide whether the FLRA made out a prima facie case [under the unlawful discrimination framework set forth in Letterkenny Army Depot,35 F.L.R.A. 113 (1990)] because we believe that PBGC demonstrated that it would have fired Power absent ... union animus. The FLRA conceded “that Power engaged in insubordinate acts,” see39 F.L.R.A. at 930 , and implicit in this concession is a recognition that' PBGC had a “legitimate justification for its action.” Letterkenny,35 F.L.R.A. at 118 .
Pension Benefit Guar. Corp.,
We view [employee #6’s] transgressions as . ‘at least comparable’ to Power’s failure to follow the concurrence matrix. We further note that employee #6 did not engage in the multiple types of insubordination Power did. That PBGC did not offer employee #6 a suspension but instead sought his removal may be further evidence that Power did not receive disparate treatment. In any event, the FLRA made no mention of employee #6, an employee whose situation, we conclude, was in some respects analogous to Power’s.
Id. at 669-70. Accordingly, we concluded that “the FLRA failed to define ‘similarly situated’ in conducting its disparate treatment analysis” and remanded “for proceedings not inconsistent with this opinion, including the direction that the FLRA consider employee #6 in conducting its disparate treatment analysis.” Id. at 670. Following our directive, on remand the FLRA articulated its criteria for determining whether an employee has been treated differently from similarly situated employees:
In making such a determination, the Authority considers the totality of the facts and circumstances of the case. The Authority compares, among other things, the consistency of treatment received by an employee who engaged in protected activity with that received by other employees: (1) from the same supervisor, and (2) in the workplace as a whole.
Moreover, in determining whether employees are similarly situated in circumstances where an adverse or disciplinary action was taken against an employee who engaged in protected activity and against one who did not, we find that it is relevant to compare: (1) the nature of the misconduct; (2) the positions the employees occupied; (3) the employees’ past disciplinary records; and (4) the extent to which employees were previously warned that their conduct may result in discipline. We also find that it is appropriate to examine the elements listed in Douglas v. Veterans Administration, 5 [M.S.P.B.] 280, 305-06 (1981) (Douglas) that are relevant to a particular adverse action decision and the extent to which a respondent consistently relied on the Douglas elements, or any other factors, when imposing adverse or disciplinary actions. We note that the weight given to the above-noted factors may vary with the circumstances presented in a specific case.
Pension Benefit Guar. Corp., 47 F.L.R.A. No. 52, slip op. at 5 (May 7, 1993) (internal citations omitted). The FLRA, however, subsequently sent the case back to the ALJ because it found the record inadequate for it to make the specific determinations with respect to Power required by this court. Id. at 5-7. The FLRA directed the ALJ to adduce “additional evidence to decide whether Power was similarly situated to Employees Nos. 1, 6, 7, 9 and/or 10 and, based on the evidence ... determine ... whether Power was subject to disparate treatment.” Id. at 6-7.
On remand, the ALJ conducted a one-day hearing during which “all parties were afforded the full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues set forth in the [FLRA’s] remand.” Pension Benefit Guar. Corp., No. 3-CA-90456, slip op. at 4 (July 19, 1994). “Upon the basis of the entire record, including ... observation of the witnesses and their demeanor,” the ALJ concluded, once again, that “I cannot find that Mr. Power was subjected to disparate treatment.” Id. at 4, 11. Specifically, the ALJ found that employee #6 and Power “were similarly situated,” and “[ijnasmuch as both Employee No. 6 and Mr. Power were given like penalties for the same indiscretions, I find that Mr, Power was not treated differently than Employee No. 6.” Id. at 10. In addition, “[w]ith respect to Employee No. 1, in agreement -with the Circuit Court of Appeals for the District of Columbia, I find that Employee No. 1 and Mr. Power were not similarly situated.” Id. And finally,
[Tjurning to Employee [sic] Nos. 7, 9 and 10 ... I cannot find that they are similarly situated to Mr. Power. In reaching this conclusion I note, among other things, the fact that they are not lawyers, they do not work in the same department under the same supervision, the type of misconduct they were involved in, i.e., fighting as opposed to insubordination, the respective grades held by the employees and Mr. Power, and the responsibilities imposed upon Mr. Power as an independent operator representing Respondent in the legal arena.
Id. at 11. The FLRA affirmed the ALJ:
[W]e find Power similarly situated and treated comparably to Employees Nos. 6 and 8, 5 who were also separated from Federal service. As to Employee No. 1, although Power and Employee No. 1 were both attorneys and engaged in somewhat comparable misconduct, we find that significant differences between them rebuts [sic] the conclusion that Power was disparately treated. We also find that Power was not similarly situated to Employees Nos. 7, 9, and 10 who, like Employee No. 1, received lesser sanctions than Power. We therefore find that Power was not treated disparately by PBGC, and that PBGC would have taken the same action even in the absence of Power’s protected activity.
Power now petitions this Court to reverse the FLRA’s April 30, 1997 decision. He requests that the PBGC be ordered to offer him immediate reinstatement to his former (or a comparable) position with full backpay and interest and that it be instructed to expunge from its records all references to his removal, to post a notice to all employees admitting its error and to pay attorney’s fees.
Power also claims that, in any event, the FLRA’s decision should be set aside because, on remand, one of the two voting FLRA panel members, Donald S. Wasserman, should have recused himself based on an incident with Power when both were employed by the American Federation of State, County and Municipal Employees, AFL-CIO (AFSCME). After PBGC terminated Power, he secured a position with AFSCME as a labor economist in the research department. Power Deck ¶ 3. At that time, Wasserman was the director of research and collective bargaining services at AFSCME. Wasser-man Decl. ¶ 3. Power claims that the incident occurred during a meeting in Wasser-man’s office while they were discussing a letter that Power drafted. He claims that Wasserman criticized the letter and then reacted angrily to Power’s explanation which Wasserman viewed as condescending, disrespectful and insubordinate. Power Deck ¶¶ 15, 16. Soon after the meeting he was informed that his employment would not continue past the probationary period and he now alleges Wasserman had a role in that termination decision. Power Deck ¶¶ 19-20. For his part, Wasserman declares that he “played no part, directly or indirectly, in the decision to terminate” Power, that his decision as an FLRA member “was based solely upon my consideration of the facts of the applicable law” and that the earlier incident “in no way affected my decision in the case, nor could it have” because he was unaware “that the employee with whom I met briefly while I was at AFSCME was the same individual.” Wasserman Deck ¶¶ 4r-6.
II.
We affirm the FLRA’s findings of fact “if supported by substantial evidence on the record considered as a whole.” 5 U.S.C. § 7123(c);
see also Universal Camera Corp. v. NLRB,
Power again advances several arguments, none of which has merit. First, we reject both of Power’s “protected activity” claims under the FSLMRS. Pet’r Br. at 18-19. With respect to his repeated refusals to provide a writing sample, Power’s pending grievance “over the exact subject matter for which the writing sample was requested,”
id.
at 19, does not immunize him from responding to a supervisor’s good faith request for rating material. Moreover, Power’s assertion that he merely wished to be judged on his entire body of writing over the rating period does not explain his insubordinate behavior in submitting over 2,000 pages of unstapled, uncollated pages, many of which were totally irrelevant, including other individuals’ court filings and LEXIS printouts. Power’s strained argument — that he was engaged in a statutorily “protected activity” by tardily submitting nonresponsive documents in response to his supervisor’s repeated and legitimate requests for writing samples — is without merit. We also reject Power’s claim that his refusal to obey the management order to return the computer usage surveys was a statutorily “protected activity.” We agree with the FLRA that “the information was ... PBGC’s property that Power obtained from an unauthorized source without PBGC’s knowledge or consent” and that Power’s “first obligation [was] to comply with [his] supervisory order[s], reserving any complaints or grievances for a later time.”
Pension Benefit Guar. Corp.,
As a result, the question on remand was simply whether Power would have been terminated even in the absence of protected activity. After comparing Power’s circumstances to those of other disciplined employees, both the ALJ and the FLRA concluded that Power had not been treated disparately. While Power uses selective facts from the record in an attémpt to recast his misconduct in a more favorable light, his attempts fail to demonstrate that the ALJ’s and FLRA’s findings lack substantial support in the record as a whole. Indeed, even if the ease were closer, we would nonetheless affirm the FLRA because its findings, supported by substantial evidence, “may not be displaced on review even if the court might have reached a different result had the matter been before it
de novo.” LCF, Inc. v. NLRB,
Power next argues that the FLRA erroneously adopted and applied the factors outlined in
Douglas v. Veterans Admin.,
Finally, Power’s bias claim regarding FLRA member Wasserman is meritless. We will set aside an official’s decision not to recuse “only where he has ‘demonstrably made up [his] mind about important and specific factual questions and [is] impervious
Even if Power’s argument had merit, he would be precluded from raising it now because “[c]laims of bias must ‘be raised as soon as practicable after a party has reasonable cause to believe that grounds for disqualification exist.’ ”
Pharaon v. Board of Governors of the Fed. Reserve Sys.,
[i]t will not do for a claimant to suppress his misgivings [regarding bias] while waiting anxiously to see whether the decision goes in his favor. A contrary rule would only countenance and encourage unacceptable inefficiency in the administrative process. The APA-mandated procedures afford every party ample opportunity to enforce and preserve its due process rights. Under the present circumstances, however, petitioner must be deemed to have waived his'claim.
Marcus,
III.
As did the ALJ and the FLRA below, we conclude that Power’s termination resulted
Denied.
Notes
. The facts underlying this appeal have been detailed in earlier incarnations.
See Pension Benefit Guar. Corp. v. FLRA,
. "[T]he FLRA General Counsel makes out a prima facie case of discrimination [under
Letterk-
enny.] if it shows by a preponderance of the evidence that: ‘(1) the employee against whom the alleged discriminatory action was taken was engaged in protected activity; and (2) such activ
. In addition, we "question[ed] the FLRA’s attempt to distinguish the case of employee #8 a GS-12 auditor discharged for insubordination, on the ground that he, unlike Power, received progressive discipline. Power did receive numerous warnings and had more than ample notice that his conduct was unacceptable."
Pension Benefit Guar. Corp.,
. We held:
The record demonstrates that, unlike employee #1 who had received no warnings before the imposition of the disciplinary sanction, Power had received numerous verbal warnings. Nevertheless, Power continued his insubordinate conduct. Indeed, the record further indicates that even after the investigatory interview, at which time Power had knowledge that his conduct was being closely scrutinized, he continued to refuse to follow the concurrence matrix and he continued to delete CEO messages without reading them. The FLRA’s decision ignores this critical difference between employee #l’s conduct and Power’s conduct.
Pension Benefit Guar. Corp.,
. While the AXJ did not adduce further evidence with respect to Employee No. 8, the FLRA determined that the record was sufficient to allow it to again compare Employee No. 8 with Power.
. Power invokes for support the decision in
United States Air Force Logistics Command, Tinker Air
. Power also claims that the FLRA erroneously refused to consider more "evidence” on remand. We reject this claim as well. On remand, the ALJ and the FLRA followed our narrow instructions, which did not include reopening the entire record. Power has had more than a “fair opportunity to develop and present” his case and the "strong public interest in bringing litigation to a close,”
INS
v.
Abudu,
. Power attempts to expand our decision in
Jenkins v. Sterlacci,