Alguard v. Vilsack, No. 2:2013cv03083 - Document 85 (E.D. Wash. 2015)

Court Description: ORDER granting 64 Defendant's Second Motion for Summary Judgment. Judgment is entered in favor of Defendant. The file is CLOSED. Signed by Judge Thomas O. Rice. (BF, Judicial Assistant)

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1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 WENDY M. ALGUARD, NO: 13-CV-3083-TOR 8 9 10 11 Plaintiff, ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT v. THOMAS VILSACK, SECRETARY OF THE U.S. DEPARTMENT OF AGRICULTURE, 12 Defendant. 13 14 BEFORE THE COURT is Defendant’s Second Motion for Summary 15 Judgment (ECF No. 64). This matter was submitted for consideration without oral 16 argument. The Court has reviewed the briefing, the record, and files therein, and is 17 fully informed. 18 19 20 BACKGROUND This case arises out of Plaintiff’s former employment with the U.S. Department of Agriculture (“USDA” or “Agency”). On October 25, 2013, ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 1 1 Plaintiff filed her First Amended Complaint alleging, inter alia, discrimination and 2 retaliation arising out of her employment with the USDA. ECF No. 8. In ruling on 3 Defendant’s Motion to Dismiss, this Court dismissed Plaintiff’s disability 4 discrimination claim—Count 1 of the First Amended Complaint—for failure to 5 exhaust. ECF No. 39. Thus, only Count 2 remains. 6 In the instant motion, Defendant moves for summary judgment on Count 2 7 of Plaintiff’s First Amended Complaint, which seeks review of the Merit System 8 Protection Board’s (“MSPB”) final decisions. ECF No. 64. 9 FACTS AND PROCEDURAL HISTORY 10 A. Disclosure, Reassignment, and Removal 11 The USDA’s Agricultural Marketing Service (“AMS”) employed Plaintiff 12 Wendy Alguard as a full-time GS-1980-9 Agricultural Commodity Grader,1 with 13 an official duty station in Yakima, Washington. AR 949 (citing AR 238). The 14 Agency provides inspection services to food-processing facilities in a seven-state 15 16 1 17 Grader, January 2010 revised edition, a GS-9 grader is “responsible for 18 coordinating and/or performing inspection and grading work on processed fruits, 19 vegetables and related products at processing plants, Area Offices, inspection 20 points and/or similar facilities as assigned.” ECF No. 26-5. Pursuant to the position description for GS-1980-9 Agricultural Commodity ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 2 1 region, with duty stations in Washington, Oregon, and Idaho. AR 949 (citing 2 Hearing CD1 2:41). 3 In 2011, during her employ with the Agency, Plaintiff discovered that one of 4 the facilities, Snokist, had been hiding totes of moldy applesauce. AR 949 (citing 5 Hearing CD2 0:26; AR 314-19). Plaintiff disclosed this issue to the FDA in May 6 2011. AR 949 (citing Hearing CD2 0:26; AR 314-19). Subsequently, in June 7 2011, the USDA cancelled its contract with Snokist. AR 949 (citing AR 245-47, 8 287). 9 Due to overstaffing issues, Agency personnel decided to reassign two full- 10 time GS-9 graders at the Yakima duty station with the most recent Service 11 Computation Dates (“SCD”). AR 949-50 (citing AR 249-52; Hearing CD1 2:59- 12 3:00). In addition, one other full-time grader at the Yakima duty station was 13 planning to retire, which retirement would help alleviate the overstaffing issues. 14 AR 949-50 (citing Hearing CD1 2:59-3:00). 15 Plaintiff, whom Human Resources determined had the lowest SCD at the 16 Yakima Duty station, was one of the affected employees. AR 950 (citing AR 249- 17 52, 728). The Agency notified Plaintiff that it was reassigning her to a full-time 18 position in Warden, Washington. AR 950 (citing AR 249-52, 728; Hearing CD1 19 3:26). However, due to cancellation of the Warden contract, Plaintiff was 20 subsequently reassigned to a vacancy in Kingsburg, California. AR 950 (citing AR ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 3 1 242). At the time of reassignment, the Agency offered Plaintiff a number of 2 options: she could report to her new assignment, accept a mixed tour of duty in 3 Yakima, resign, or refuse reassignment. AR 950 (citing AR 243). Plaintiff refused 4 the reassignment, AR 950 (citing AR 232), and, on September 6, 2011, initiated 5 proceedings with the Office of Special Counsel (“OSC”), AR 1467 (citing AR 6 1224, 1229-33). In her complaint, Plaintiff challenged her directed reassignment. 7 AR 1467 (citing AR 1229-33).2 8 9 In October 2011, Plaintiff was notified of her proposed removal for failure to accept a directed reassignment. AR 950 (citing AR 145-58, 160-62, 164-98, 203- 10 04, 206-19). Plaintiff’s removal became effective in December 2011, AR 1468 11 (citing AR 145-58), and Plaintiff timely appealed her reassignment and removal to 12 the MSPB on January 13, 2012, AR 950 (citing AR 1-31). 13 B. Initial MSPB Decision 14 On May 3, 2012, after conducting a hearing on March 29 and 30, 2012, 15 Administrative Judge (“AJ”) Benjamin Gutman issued his first decision (“Initial 16 17 18 2 19 matter in its previous Order Granting in Part and Denying in Part Defendant’s 20 Motion to Dismiss. ECF No. 39. The Court detailed the full account of administrative proceedings underlying this ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 4 1 Decision”), finding in favor of the Agency.3 AR 948-71. In his Initial Decision, 2 the AJ found that (1) the Agency’s decision to reassign Plaintiff—which decision 3 Plaintiff was given adequate notice of and refused to accept—was bona fide and 4 based on legitimate management reasons, AR 952-57; (2) Plaintiff had failed to 5 prove her affirmative defense of whistleblower retaliation, as well as her other 6 asserted defenses, AR 963-66; and (3) a “clear nexus” exists “between failure to 7 accept a directed reassignment and the efficiency of the service, and removal is a 8 reasonable penalty for that conduct,” AR 966-67. Plaintiff filed a Petition for Review of the AJ’s Initial Decision on June 7, 9 10 2013. AR 972-1018. The Board denied the petition and remanded the case back to 11 the AJ for further adjudication to determine (1) whether Plaintiff had made a 12 binding election to proceed before the OSC and thus was prevented from pursuing 13 her claim before the MSPB, and (2) whether the agency proved by clear and 14 convincing evidence that it would have removed Plaintiff absent her 15 whistleblowing. AR 1069-77. Specifically regarding the AJ’s analysis of 16 Plaintiff’s whistleblower retaliation defense, the Board directed the AJ to reanalyze 17 and gather additional evidence as to whether the Agency had taken similar actions 18 against similarly situated non-whistleblower employees. AR 1076. 19 3 20 light of her MSPB appeal. AR 1224; see ECF No. 30-4. Also on May 3, 2012, the OSC informed Plaintiff that it was closing her case in ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 5 1 C. Final Decision & Appeal 2 On remand, the AJ again rendered a decision in favor of the Agency, which 3 decision was issued on July 18, 2013 (“Final Decision’’). AR 1465-81. First, the 4 AJ found that Plaintiff had not made a binding election to proceed with the OSC; 5 thus, the mixed case appeal was properly before the MSPB. AR 1467-69. Second, 6 the AJ, after considering additional evidence, again found that that the Agency met 7 its burden of proof with respect to the whistleblowing defense. AR 1469-76. The 8 AJ reincorporated his previous nexus and penalty findings. AR 1475. 9 10 11 In August 2013, Plaintiff timely commenced the instant lawsuit, seeking review of the AJ’s Initial and Final Decisions. ECF Nos. 4; 8. DISCUSSION 12 A. Standard of Review for MSPB Decisions 13 Generally, appeals of MSPB decisions must be filed in the Federal Circuit 14 Court of Appeals; however, if a case involves both an appeal of a personnel action 15 and a claim of discrimination—a so-called “mixed” case—then judicial review is 16 with the district court. 5 U.S.C. § 7703(b)(2); Coons v. Sec’y of U.S. Dep’t of 17 Treasury, 383 F.3d 879, 884 (9th Cir. 2004). In mixed cases, the district court 18 reviews the discrimination claims de novo and the nondiscrimination claims under 19 a deferential standard of review, Washington v. Garrett, 10 F.3d 1421, 1428 (9th 20 Cir. 1993), setting aside the MSPB’s decision only if findings or conclusions are ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 6 1 found to be “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in 2 accordance with law; (2) obtained without procedures required by law, rule, or 3 regulation having been followed; or (3) unsupported by substantial evidence.” 5 4 U.S.C. § 7703(c); Coons, 383 F.3d at 888. Although this Court previously dismissed Plaintiff’s discrimination claim, it 5 6 retains jurisdiction over the remainder of the action. See Kloeckner v. Solis, 133 7 S.Ct. 596, 607 (2012). Thus, this Court’s remaining review is limited to review of 8 the AJ’s Initial and Final Decisions under the deferential standard set forth in 5 9 U.S.C. § 7703(c).4 10 11 4 12 proceedings below: (1) whether the AJ improperly approved of the Agency’s use 13 of “as needed” workers to replace full-time inspectors; and (2) whether Plaintiff 14 should have been granted attorney’s fees for the proceedings below. ECF No. 68. 15 This Court cannot consider these issues presented for the first time on appeal. See, 16 e.g., James v. FERC, 755 F.2d 154, 155-56 (Fed. Cir. 1985) (“A party will . . . not 17 generally be heard on any issues raised for the first time on appeal.”). Plaintiff’s 18 briefing also presents evidence that is not part of the administrative record. See 19 ECF No. 84 at 2, 5-6. Because this Court’s review of the evidence is limited to the 20 administrative record, this Court disregards this evidence as irrelevant. Plaintiff’s briefing raises issues that were not first raised in the administrative ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 7 1 As the reviewing Court, this Court’s duty is discharged when it applies 2 “section 7703 to review an MSPB decision regarding an adverse agency action to 3 determine whether the contested decision complies with the applicable statute and 4 regulations and whether it has a rational basis supported by substantial evidence 5 from the record taken as a whole.” Hayes v. Dep’t of the Navy, 727 F.2d 1535, 6 1537 (Fed. Cir. 1984). “Under the substantial evidence standard of review, a court 7 will not overturn an agency decision if it is supported by ‘such relevant evidence as 8 a reasonable mind might accept as adequate to support a conclusion.’” Jacobs v. 9 Dep’t of Justice, 35 F.3d 1543, 1546 (Fed. Cir. 1994) (quoting Consolidated 10 Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). In applying this standard of 11 review “the court recognizes that it should not try to place itself in the shoes of the 12 agency and second-guess it.” Hayes, 727 F.2d at 1537; see also Whitmore v. Dep’t 13 of Labor, 680 F.3d 1353, 1366 (Fed. Cir. 2012) (“In exercising this limited scope 14 of review, we do not consider how we would have decided the case in the first 15 instance, and may not merely substitute our judgment for that of the board.”) 16 However, when reviewing the Board’s decision for substantial evidence, the 17 court “consider[s] evidence in the record that undermines as well as that which 18 supports the Board’s decision.” Washington, 10 F.3d at 1428; see also Jacobs, 35 19 F.3d at 1546 (“The substantiality of evidence must take into account whatever in 20 the record fairly detracts from its weight.”). “If such an accounting so detracts from ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 8 1 the weight of the evidence that supports the Board’s decision, or the agency’s 2 evidence is so sparse, that a reasonable fact finder would not find the charge 3 proved by a preponderance of the evidence, the Board must be reversed.” Jacobs, 4 35 F.3d at 1546 (internal quotation marks and citation omitted). 5 “The petitioner bears the burden of establishing error in the Board’s 6 decision.” Buie v. Office of Pers. Mgmt., 386 F.3d 1127, 1129 (Fed. Cir. 2004). 7 B. Whistleblower Protection Act 8 The Whistleblower Protection Act of 1989 (“WPA”), subsequently amended 9 by the Whistleblower Protection Enhancement Act of 2012,5 “prohibits any federal 10 agency from taking, failing to take, or threatening to take or fail to take, any 11 personnel action because of the disclosure of information by an employee or 12 applicant for employment that the employee or applicant reasonably believes to be 13 evidence of a violation of law, rule, or regulation, gross mismanagement or a waste 14 of funds, or a substantial and specific danger to public health or safety.” 15 Fellhoelter v. Dep't of Agric., 568 F.3d 965, 970 (Fed. Cir. 2009) (citing 5 U.S.C. § 16 2302(b)(8)). 17 18 5 19 2012. Pub. L. No. 112-199, 126 Stat. 1465 (2012) (codified in scattered sections 20 of 5 U.S.C.). In 2012, Congress passed the Whistleblower Protection Enhancement Act of ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 9 1 “Analysis of a whistleblower defense takes place within a burden shifting 2 scheme, wherein the agency must first prove its case for removal by a 3 preponderance of the evidence . . . .” Whitmore, 680 F.3d at 1367. Then, in order 4 to establish her prima facie case for a whistleblower retaliation defense, the former 5 employee must show (1) that she made a protected disclosure under section 6 2302(b)(8), and (2) that this disclosure was “a contributing factor” to the adverse 7 employment action. Id. (quoting 5 U.S.C. § 2302(b)(8)); Fellhoelter, 568 F.3d at 8 970. If the former employee is able to meet this initial burden, the burden of 9 persuasion then shifts to the agency to show by “clear and convincing evidence” 10 that it would have taken the same personnel action in the absence of such 11 disclosure. Whitmore, 680 F.3d at 1367; Fellhoelter, 568 F.3d at 970-71. 12 This Court’s analysis of the AJ’s decisions will follow the same framework, 13 addressing the specific issues raised by Plaintiff where relevant: First, whether the 14 Agency proved the propriety of its reassignment and removal decisions by a 15 preponderance of the evidence; and second, whether the Agency proved by clear 16 and convincing evidence that it would have reassigned and ultimately removed 17 Plaintiff regardless of her disclosures. 18 19 20 1. Reassignment of Plaintiff “When an adverse action is based upon an employee’s failure to accept a directed reassignment, the agency bears the initial burden of proving by ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 10 1 preponderant evidence that its decision to reassign the employee was bona fide, 2 and based upon legitimate management reasons.” Krawchuk v. Dep’t of Veterans 3 Affairs, 94 M.S.P.R. 641, 645 (MSPB 2003). In general, agencies are authorized to 4 reassign federal employees, and the MSPB has repeatedly held that removal is not 5 an unreasonably harsh penalty for refusal of such legitimate directed reassignment. 6 Frey v. Dep’t of Labor, 359 F.3d 1355, 1357 (Fed. Cir. 2004). “However, where a 7 removal action is based on a refusal to accept a directed geographical 8 reassignment, the agency must prove by a preponderance of the evidence that its 9 reassignment decision was bona fide, and based upon legitimate management 10 considerations in the interest of the service.” Id. (internal quotation marks 11 omitted). “Once it is established or unchallenged that a reassignment was properly 12 ordered in an exercise of agency discretion under 5 C.F.R. part 335, the Board will 13 not review the management considerations underlying that exercise of discretion.” 14 Id. at 1358. 15 In the proceedings below, the parties stipulated that the Agency gave 16 Plaintiff adequate notice of the reassignment to Kingsburg and that she refused to 17 accept it. AR 952. As such, the AJ, in his Initial Decision, proceeded to determine 18 whether Plaintiff’s reassignment was bona fide and based on legitimate 19 management reasons, and not carried out arbitrarily or for improper purposes. AR 20 952. ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 11 1 a. Bona Fide and Legitimate Reason for Reassignment i. AJ’s Findings 2 3 First, the AJ found that the reason for Plaintiff’s reassignment was 4 overstaffing at the Yakima duty station, which he relatedly found to be a legitimate 5 reason for directed reassignment. AR 952 (citing Cooke v. U.S. Postal Serv., 67 6 M.S.P.R. 401, 406 (MSPB 2013) (finding that agency had a legitimate 7 management reason for reassigning the employee where record evidence 8 demonstrated employee’s work site had a reduced need for services); Wear v. 9 Dep’t of Agric., 22 M.S.P.R. 597, 598-99 (MSPB 1984) (finding that “cutbacks in 10 the regions” and “shortage of funds” were legitimate management reasons for a 11 directed reassignment); Camhi v. Dep’t of Energy, 12 M.S.P.B. 57, 48 (1982) 12 (“[L]ack of work at appellant’s duty station was a proper reason for reassigning 13 appellant.”)). 14 In finding that the Yakima duty station was overstaffed, the AJ commented 15 on the following evidence: (1) the revenue of the Yakima office had plummeted in 16 the last few years, AR 953 (citing AR 573-82; Hearing CD1 4:10-4:12); (2) at least 17 four facilities had either cancelled their contracts or reduced inspection 18 requirements, which resulted in “a substantial decrease in the amount of work 19 required by Yakima-stationed employees,” AR 953 (citing AR 841; Hearing CD1 20 2:53-2:54, 4:15); (3) cancellation of a contract with at least one of these facilities— ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 12 1 Snokist—had eliminated the need for one full-time grader, AR 953 (citing AR 588- 2 696); (4) the Agency did not hire new employees or replace the reassigned and 3 retired Yakima-stationed employees, AR 953 (citing Hearing CD2 1:54-1:55); and 4 (5) if Plaintiff had remained on a mixed-tour schedule in Yakima, as she was 5 invited to, she would have likely worked less than half time, AR 953 (citing 6 Hearing CD1 4:35). 7 In considering this evidence, the AJ also considered evidence highlighted by 8 Plaintiff that appeared to contradict the overstaffing at the Yakima duty station: (1) 9 some of the inspection facilities had been bought by new companies and continued 10 to have inspections, AR 953 (citing AR 925; Hearing CD2 0:38-0:40); (2) there 11 was some inconsistency in the evidence whether the Yakima duty station was 12 overstaffed by two or three employees, AR 953-54 (citing AR 164, 228, 925-26); 13 and (3) after Plaintiff’s removal, the remaining graders were busier than before, 14 AR 954 (citing AR 831-32; Hearing CD2 0:41-0:41, 2:25-2:26). 15 16 17 The AJ reasonably explained why this evidence did not rebut the strong evidence otherwise supporting the overstaffing justification. As to Plaintiff’s contention that some of the inspection facilities were bought 18 by new companies and continued to have inspections, the AJ found that this 19 evidence did not demonstrate that the amount of work was comparable to what it 20 had been before the contract cancellations and reduction in inspection services. ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 13 1 AR 953. In support, the AJ highlighted the fact that the Agency did not hire new 2 employees to replace Plaintiff or the two other eliminated grader positions. AR 3 953 (citing Hearing CD2 1:54-1:55). 4 As to the inconsistency in the level of overstaffing, the AJ quickly dismissed 5 this evidence as inconsequential. First, the AJ noted the staffing outlook was “not 6 static,” and at times it may have seemed as if only two positions would need to be 7 eliminated. AR 954 (citing Hearing CD1 0:27, 2:42-2:43). Second, this 8 inconsistency between eliminating two or three graders may have resulted from the 9 understanding that only two graders would need to be reassigned, while the third 10 was voluntarily retiring. AR 954. Third, the Agency ultimately eliminated three 11 graders. AR 954. Finally, and perhaps most important, whether or not the Agency 12 eliminated two or three graders, Plaintiff was first on the list of Yakima-stationed 13 GS-9 graders as she had the most recent SCD. AR 954 (citing AR 728). 14 As to the amount of work the remaining graders were assigned, the AJ found 15 that this did not rebut the evidence showing the Agency needed to eliminate three 16 full-time graders at the Yakima duty station: “I find that there was work to be done, 17 but not consistently enough to warrant another full-time grader.” AR 955. 18 Moreover, Plaintiff’s argument carried little weight as she was offered the 19 opportunity to switch to a mixed-tour schedule, in lieu of reassignment, and 20 ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 14 1 declined, and even if she would have accepted the position, she would have been 2 working less than half time. AR 954-55 (citing AR 232; Hearing CD1 4:35). 3 Ultimately, the AJ found the Agency’s decision to eliminate three full-time 4 graders at the Yakima duty station was “legitimate” and that the Agency had 5 provided “adequate justification” for its action. AR 955 6 ii. This Court’s Findings 7 Plaintiff, in her response briefing, faults the AJ for misapplying the 8 governing legal standard when determining whether the Agency had proved its 9 decision to reassign Plaintiff, asserting that the AJ was required to find that the 10 Agency had proved its charge by “clear and convincing” proof, rather than merely 11 requiring “adequate justification.” ECF No. 68 at 12. 12 This argument misunderstands the framework of the AJ’s analysis. The AJ 13 first considered whether the Agency has proved, by a preponderance of the 14 evidence, that its decision to reassign Plaintiff was bona fide and based on 15 “legitimate management reasons.” See Frey, 359 F.3d at 1357. The AJ then, when 16 addressing the employee’s whistleblower retaliation defense, considered whether 17 the Agency proved by “clear and convincing” evidence that it would have 18 reassigned Plaintiff in the absence of Plaintiff’s disclosure. See Whitmore, 680 19 F.3d at 1367. As explained by the Federal Circuit in Whitmore, the heightened 20 “clear and convincing” standard, which Congress requires for whistleblower ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 15 1 retaliation cases, is “reserved to protect particularly important interests in a limited 2 number of civil cases.” Id. Thus, this standard did not apply to the AJ’s initial 3 assessment of whether the Agency had proved its decision to reassign Plaintiff was 4 bona fide and based on legitimate management reasons, which only required proof 5 by a preponderance of the evidence. 6 Similarly, Plaintiff also argues that the AJ “unlawfully lifted from USDA its 7 burden of clear and convincing proof and shifted the burden to [Plaintiff] to rebut 8 the asserted business justification for reducing services in Yakima.” ECF No. 68 at 9 13. Again, the clear and convincing standard did not apply to this stage of the 10 analysis. Rather, the AJ found that the Agency had proved by preponderant 11 evidence that the Agency had a legitimate business justification for reassigning 12 Plaintiff, overstaffing, and Plaintiff failed to successfully contradict the evidence 13 presented. And contrary to Plaintiff’s assertion, the AJ was not required—without 14 a motion to compel or a directive on remand—to order the Agency to “disclose its 15 files of out-of-Yakima-area service reductions.” ECF No. 68 at 15; see Tiffany v. 16 Dep’t of Navy, 795 F.2d 67, 69 (Fed. Cir. 1986) (“The Board has authority to issue 17 an order compelling discovery, but a petitioner must request this action by filing a 18 motion to compel with the presiding official.”). 19 20 Finally, Plaintiff faults the AJ for ignoring contradictory business justifications for her reassignment; that is, she questions the different revenue loss ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 16 1 calculations and exactly which contract cancellations led to her reassignment 2 considering the timeline of her reassignment and the contract cancellations. ECF 3 No. 68 at 15-18. However, the expected revenue losses and service reductions 4 presented to the AJ below—either through exhibits or testimony—reasonably 5 support the AJ’s determination that the Agency provided adequate justification for 6 Plaintiff’s reassignment. See AR 573-82,840-44; ECF No. 65-2 at 3-4, 12-14 7 (Hearing CD1). For instance, in addition to the testimony presented, the AJ 8 considered evidence showing approximately $400,000 in revenue loss. AR 573, 9 581.6 This is especially relevant considering that AMS is a user fee-based program 10 where the money for services provided contributes to employee salaries. See ECF 11 No. 65-2 at 19 (Hearing CD1). Moreover, the loss of the Snokist contract alone— 12 cancelled in June 2011 before Plaintiff’s reassignment—resulted in the need to 13 eliminate one full-time grader. AR 588-695. 14 15 6 16 show that there exists conflicting evidence as to whether the Agency had a 17 legitimate business purpose for reassignment. ECF No. 68 at 16 (citing AR 577). 18 Although Plaintiff interprets the chart as showing only a $60,000 loss in revenue, 19 Mr. Augspurg’s email presenting the chart and other attachments explains that the 20 “overall revenue is down almost $400,000” from the 2006 fiscal year. AR 573. Plaintiff highlights a chart attached to one of the emails from Mr. Augspurg to ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 17 1 Even considering the evidence that detracts from the AJ’s findings, this 2 Court concludes that the AJ’s findings have a rational basis supported by 3 substantial evidence and are in accordance with the applicable law. Hayes, 727 4 F.2d at 1537; Jacobs, 35 F.3d at 1546. The AJ highlighted sufficient evidence to 5 support its conclusion that the Yakima duty station was overstaffed and sufficiently 6 addressed Plaintiff’s rebuttal evidence to the contrary. Although Plaintiff would 7 have this Court reweigh the evidence, this is not the proper role of a reviewing 8 court. See Henry v. Dep’t of Navy, 902 F.2d 949, 951 (Fed. Cir. 1990) (“It is not 9 for this court to reweigh the evidence before the Board.”); see also Haebe v. Dep’t 10 of Justice, 288 F.3d 1288, 1298 (Fed. Cir. 2002) (“The question before [the court] 11 is not how the court would rule upon a de novo appraisal of the facts of the case, 12 but whether the administrative determination is supported by substantial evidence 13 in the record as a whole.”). Because Plaintiff has failed to meet her burden to 14 show reversible error, see Buie, 386 F.3d at 1129, Defendant is entitled to 15 summary judgment as to this issue. 16 17 18 b. Implementing Reassignment Procedures i. AJ’s Findings Second, the AJ found that the Agency did not act arbitrarily in implementing 19 its directed reassignment procedures and identifying Plaintiff as an affected 20 employee. AR 955-57. Pursuant to the Agency’s then-applicable Directed ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 18 1 Reassignment Directive, “for reassignments which require a household move, 2 managers may identify affected employees by using the most recent Service 3 Computation Date (SCD) for leave in the affected series and grade level at the duty 4 site where the position is located.” AR 955 (quoting AR 347-49) (brackets 5 omitted). Conversely, the Agency’s Reduction in Force (“RIF”) Directive utilized 6 a different standard—retention registry, which considers the employee’s seniority, 7 veteran status, and performance, ECF No. 65-2 at 7—for determining the affected 8 employees. AR 958 (citing AR 363-64). The AJ ultimately determined that 9 nothing required the Agency to use the RIF policy instead of the directed 10 reassignment; rather, it was a matter of discretion in choosing between the two 11 procedures. AR 958 (citing AR 363-64 (explaining that the RIF procedures “may” 12 be used for directed reassignments and that such a decision is within the Agency’s 13 discretion)). Thus, the AJ’s focus was rightfully on the Directed Reassignment 14 Directive. 15 The central issue with the Directed Reassignment Directive surrounded use 16 of the term “duty site” as the geographical area from which affected employees 17 would be drawn. Plaintiff argued below that if the Agency had instead used a 18 broader geographic scope, as it purportedly had with other directed reassignments, 19 Plaintiff would not have been selected for reassignment. AR 928. 20 ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 19 1 Focusing on testimony by the Agency’s witnesses, the AJ found that the 2 Agency had consistently interpreted the term “duty site,” although not defined in 3 the Directive, to mean “duty station.” AR 956 (citing Hearing CD1 1:37, 4:58- 4 4:59). For instance, Ms. McDonald of HR testified that in her thirteen years as a 5 Staffing Specialist with the Agency, the Agency had always interpreted the term 6 “duty site” to mean “duty station.” ECF No. 65-2 at 7 (Hearing CD1). Similarly, 7 Brett Mourer and Robert Keeney both testified that the term “duty site” was 8 interpreted by the Agency to mean “duty station.” ECF No. 65-2 at 5, 20 (Hearing 9 CD1). The AJ also noted that the previous reassignment directive had used “local 10 commuting area,” as opposed to “duty site,” but had “deliberately changed this to 11 avoid disputes about the boundaries of local commuting areas.” AR 955-56 (citing 12 AR 374-76; Hearing CD1 4:56-4:58); Beardmore v. Dep’t of Agric., 761 F.2d 677, 13 679-80 (Fed. Cir. 1985)). Brett Mourer testified to the same. ECF No. 65-2 at 20 14 (Hearing CD1). 15 The AJ acknowledged evidence to the contrary, both in regard to the use of 16 SCDs to select employees and the geographic range of employees considered. In 17 the proceedings below, Plaintiff highlighted two letters from directed 18 reassignments in Florida that referred to the affected employee as having the 19 lowest seniority in a particular “county,” and another document regarding a 20 reassignment in Idaho that referred to “local commuting area”rather than duty ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 20 1 station. AR 956 (citing AR 493-523, 569-72, 699-706, 717-21). Further the AJ 2 acknowledged a “few occasions” when the Agency used something other than 3 SCDs to select employees for reassignment. AR 956 (citing Hearing CD2 2:31). 4 Nonetheless, the AJ did not find this evidence convincing. Regarding the 5 dispute over whether the employees would be selected from the applicable duty 6 station, county,7 or local commuting area, the AJ found the following: “[W]hile the 7 agency may have used imprecise language in these documents, each grader in fact 8 had the lowest seniority at his or her duty station, and there is no evidence the 9 agency in fact considered employees at duty stations other than the one at issue.” 10 AR 956-57 (citing Hearing CD1 5:03, 5:44; Hearing CD2 0:15-0:16). Further, the 11 AJ thought the focus on the duty station, rather than a larger geographical area, 12 13 14 7 Plaintiff’s argument that the pool of employees should have been drawn from the 15 county is particularly unsuccessful as applied to the facts here: Plaintiff’s duty 16 station was in Yakima County, whereas the two graders with lower SCDs—Mr. 17 Edwards and Mr. Leggett—had duty stations in Kittitas County and Umatilla 18 County, respectively. Hearing CD 1; see ECF No. 65-2 at 22. Thus, expanding 19 the geographic scope to a county-wide approach would have resulted in no 20 difference here. ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 21 1 was reasonable considering the overstaffing problem was concentrated at the 2 Yakima duty station: 3 4 5 6 If the agency reassigned a grader at another duty station, that alone would not solve the problem of overstaffing at the first duty station. The agency would have to continue reassigning employees to the vacancies it created until it reached one of the employees at the affected duty station. Nothing requires an agency to go through this musical-chair arrangement rather than simply reassigning an employee from the affected duty station at the outset. 7 AR 957 (citing Hearing CD1 2:29-2:30). This finding was supported by the 8 testimony of Brett Mourer, who testified that there was never discussion about 9 expanding the area of consideration to the entire Yakima area or all seven states 10 “[b]ecause [the agency] was overstaffed in one specific location”—the Yakima 11 duty station. ECF No. 65-2 at 21 (Hearing CD1). 12 Finally regarding use of a selection standard other than SCDs, the AJ found 13 no evidence that it would have made a difference if the Agency had used a 14 different standard in Plaintiff’s case. AR 956. Rather, the AJ heard uncontradicted 15 testimony that, even with use of a retention registry, Plaintiff had the lowest RIF 16 retention standing of the other GS-9 graders at the Yakima duty station and would 17 have been one of the employees selected for reassignment if this standard was 18 19 20 ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 22 1 used.8 AR 956 (Hearing CD1 1:49-1:50). Therefore, the AJ found that any 2 procedural error in using the SCD standard, rather than the retention registry, was 3 harmless as applied to Plaintiff’s case. See Ward v. U.S. Postal Serv., 634 F.3d 4 1274, 1279 (Fed. Cir. 2011) (discussing harmful error standard, which requires 5 employee to show that an agency’s application of its procedures likely caused the 6 agency to reach a conclusion different from the one it would have reached in the 7 absence or cure of the error). Ultimately, the AJ found Plaintiff’s reassignment was not arbitrary and was 8 9 in accordance with Agency policy and practice. There was no dispute that Plaintiff 10 had the most recent SCD among the four GS-9 graders with official duty stations 11 of Yakima9—Plaintiff was identified as such by HR in accordance with the 12 Agency’s Directed Reassignment Directive. AR 957 (citing AR 527-30). The 13 only way the outcome would have been different is if the Agency had considered 14 employees in a larger geographical area, which the AJ reasonably found, and as 15 8 16 Florida based on the retention registry also had the lowest SCDs at their official 17 duty station. ECF No. 65-3 at 3 (Hearing CD2). 18 9 19 SCD, this identification was in error. Mr. Edwards was assigned to a duty station 20 in Ellensburg, Washington, not Yakima. See AR 527-29. Moreover, Brett Mourer testified that the two employees who were reassigned in Although Human Resources initially listed Mr. Edward as having the most recent ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 23 1 testified to by Agency personnel, would not have alleviated the overstaffing 2 problem at the Yakima duty station. 3 4 ii. This Court’s Findings On appeal, Plaintiff faults the AJ for ignoring evidence and misapplying 5 applicable law and regulations when reviewing the Agency’s reassignment 6 procedures. In Plaintiff’s First Amended Complaint, she asserts that the Agency 7 used improper procedures when it identified which employees would be issued 8 directed reassignments. ECF No. 8 ¶¶ 34, 37. In her response briefing, albeit in a 9 section attacking a subsequent part of the AJ’s analysis, Plaintiff reasserts 10 argument presented below regarding the proper geographical scope of employees 11 to consider. ECF No. 68 at 22-26. 12 This Court concludes that the AJ’s findings have a rational basis supported 13 by substantial evidence and are in accordance with the applicable law. Hayes, 727 14 F.2d at 1537. The AJ adequately considered and weighed relevant evidence, drew 15 permissible inferences from the evidence presented, and made rational conclusions 16 in finding that Plaintiff was properly chosen—based on the most recent SCD at the 17 Yakima duty station—for reassignment. Again, Plaintiff misunderstands this 18 Court’s duty upon review: it is not to reweigh all the evidence, consistent with a de 19 novo standard of review, but rather to determine whether the AJ’s opinion is 20 supported by substantial evidence in the record as a whole. See Haebe, 288 F.3d at ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 24 1 1298. There is no dispute that Plaintiff had the most recent SCD at the Yakima 2 duty station. AR 527. In turn, the evidence supports the finding that the use of 3 SCDs and the focus on the duty station is both rational and consistent with past 4 Agency practice. As the AJ logically explained, because Yakima duty station had 5 the overstaffing problem, the most effective way to alleviate such a problem was to 6 reassign graders at the Yakima duty station. AR 957. Plaintiff’s arguments to the 7 contrary are insufficient to demonstrate reversible error, see Buie, 386 F.3d at 8 1129; accordingly, Defendant is entitled to summary judgment as to this issue. 9 10 2. Propriety of Removal Third, the AJ found that “there is a clear nexus between failure to accept a 11 directed reassignment and the efficiency of the service, and removal is a reasonable 12 penalty for that conduct.” AR 966. 13 “[D]iscipline is warranted for refusing to accept a legitimate directed 14 reassignment and . . . removal is not an unreasonably harsh penalty for such a 15 refusal.” Frey, 359 F.3d at1357. The court’s “review of the penalty imposed by 16 the agency is ‘highly deferential,’ and [for which reversal] requires a showing that 17 the penalty is ‘grossly disproportionate to the offense charged.’” Bieber v. Dep’t of 18 Army, 287 F.3d 1358, 1365 (Fed. Cir. 2002) (internal citation omitted). 19 20 To the extent Plaintiff is also challenging the AJ’s findings regarding the propriety of removal, this argument is unavailing. Plaintiff was issued a ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 25 1 reassignment from Yakima, Washington, to Kingsburg, California, which 2 reassignment she was given adequate notice of and refused. AR 232, 242. As 3 supported by testimony at the hearing, such disciplinary action is consistent with 4 other agency employees who had refused a directed reassignment. ECF No. 65-2 at 5 11-12, 20 (Hearing CD1). Further, courts have repeatedly upheld removal as an 6 appropriate disciplinary measure when an employee refuses a legitimate directed 7 reassignment. See, e.g., Frey, 359 F.3d at 1357. Considering the legitimacy of 8 Plaintiff’s reassignment here, Plaintiff has failed to demonstrate that the penalty of 9 removal is “grossly disproportionate to the offense charged.” Bieber, 287 F.3d at 10 1365. Accordingly, this argument, if even considered properly pled, too fails, and 11 summary judgment is warranted. 12 3. Whistleblower Retaliation Defense 13 a. Carr factors 14 After finding that the Agency had proved its charge, the AJ proceeded to 15 analyze Plaintiff’s whistleblower retaliation defense. Because Plaintiff met her 16 initial burden of proving her prima facie case for whistleblower retaliation,10 the 17 10 18 had made a protected disclosure and that the Agency was aware of this disclosure. 19 AR 964. This Court subsequently found that Plaintiff’s disclosure is protected 20 under the WPA. ECF No. 54 at 11-13. The AJ also “assume[d] without deciding The parties agreed, for purposes of proceedings before the MSPB, that Plaintiff ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 26 1 burden then shifted to the Agency to show by “clear and convincing evidence” that 2 it would have taken the same personnel action in the absence of Plaintiff’s 3 protected disclosures. Whitmore, 680 F.3d at 1367; Fellhoelter, 568 F.3d at 970- 4 71. The “clear and convincing” standard is a high burden: 5 6 7 Whether evidence is sufficiently clear and convincing to carry this burden of proof cannot be evaluated by looking only at the evidence that supports the conclusion reached. Evidence only clearly and convincingly supports a conclusion when it does so in the aggregate considering all the pertinent evidence in the record, and despite the evidence that fairly detracts from that conclusion. 8 9 10 Whitmore, 680 F.3d at 1368. When determining whether the agency has met its burden, the AJ considers 11 the following three factors: “[1] the strength of the agency’s evidence in support of 12 its personnel action; [2] the existence and strength of any motive to retaliate on the 13 part of the agency officials who were involved in the decision; and [3] any 14 evidence that the agency takes similar actions against employees who are not 15 whistleblowers but who are otherwise similarly situated.” Carr v. Soc. Sec. 16 Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999). When considering the Carr factors, 17 the Board “does not view the Carr factors as discrete elements, each of which the 18 agency must prove by clear and convincing evidence, but will weigh the factors 19 that [Plaintiff had] met her initial burden of proving that this disclosure was a 20 contributing factor in the agency’s decision to reassign or remove her.” AR 964. ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 27 1 together to determine whether the evidence is clear and convincing as a whole.” 2 Mithen v. Dep’t of Veterans Affairs, 2015 M.S.P.B. 38 (2015); see also Whitmore, 3 680 F.3d at 1374 (“To be clear, Carr does not impose an affirmative burden on the 4 agency to produce evidence with respect to each and every one of the three Carr 5 factors to weigh them each individually in the agency’s favor.”). i. AJ’s Findings 6 7 First, the AJ determined that the Agency had presented very strong evidence 8 for justifying its directed reassignment and removal decisions. In his Initial 9 Decision, the AJ found that the first Carr factor “weighs overwhelmingly in favor 10 of the agency.” AR 964. Pointing to the analysis regarding the propriety of 11 reassignment, detailed above, the AJ found that the Agency had “presented very 12 strong evidence that it had a legitimate reason for imposing the directed 13 reassignment.” AR 964. Further, citing this same evidence, the AJ found that the 14 Agency had “shown that its decision to target the most junior employees at the 15 Yakima duty station was consistent with its past practices, that the appellant was in 16 fact the most junior employee stationed at Yakima, and that all employees who 17 refused directed reassignments were removed.” AR 964-65. Ultimately, the AJ 18 found Plaintiff had “not shown that the reassignment or removal was handled 19 irregularly or that there was anything suspicious about the manner in which it was 20 carried out.” AR 965. ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 28 1 On remand—although the Board effectively affirmed the AJ’s initial 2 ruling—the AJ again found the first factor weighed strongly in favor of the 3 Agency. AR 1473-74. Specifically, the AJ found Plaintiff had not offered any 4 evidence to rebut the clear and convincing evidence provided by the Agency 5 supporting its employment decisions. AR 1473. For one, Plaintiff did not offer 6 any evidence to rebut the showing that the Agency had not replaced Plaintiff’s 7 position or the two other grader positions that had been eliminated. AR 1473 8 (citing AR 953-54). Further, Plaintiff had failed to rebut the Agency’s showing 9 that, under its current policy, it had never selected an employee for a directed 10 reassignment unless that employee was at a particular duty station that was 11 overstaffed: 12 13 14 15 16 17 18 At most she showed that the agency continued to use the phrase ‘commuting area’ in some of its documentation, but I already explained that this imprecise language does not cast doubt on the unequivocal testimony from the agency that every reassigned grader in fact had the lowest seniority at his or her duty station. The appellant offered no direct evidence to the contrary—no seniority rosters, for example, showing that the agency in fact sometimes passed over the least senior employee at the duty station in question in favor of someone with lower seniority at another duty station. AR 1473 (citing AR 956-57, 1211). Second, the AJ found that the Agency did not have a strong motivation to 19 retaliate. In his Initial Decision, the AJ found the second Carr factor weighed 20 “only mildly” in favor of Plaintiff.” AR 965-66. In making this determination, the ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 29 1 AJ considered Plaintiff’s argument that her direct supervisor, Doug Augspurg, had 2 a motive to retaliate against her: 3 4 5 6 7 8 9 10 With respect to factor (2), the appellant appears to be arguing that her direct supervisor had a motive to retaliate against her because (according to her) he had told her to wait before revealing the moldy applesauce to the FDA, and she did not follow that instruction. She also testified that he slighted her in various ways after her disclosure. The supervisor’s testimony was generally inconsistent with this account—he asserted that he directed the appellant to cooperate with the FDA and was pleased with what she did—but I will accept for argument’s sake the appellant’s version of events and assume without deciding that the supervisor may have had some motive to retaliate against her for her disclosure. AR 965 (citing Hearing CD1 3:20-3:22; Hearing CD2 1:21-23, 1:36-1:38). The AJ nonetheless found Mr. Augspurg’s alleged motive “relatively weak.” 11 AR 965. For one, the AJ found that Mr. Augspurg had played only a “peripheral 12 role in the reassignment and removal process”: “[Mr. Augspurg] testified without 13 contradiction that the agency’s human-resources department, not he, decided which 14 employees would be reassigned and that he did not know in advance that the 15 appellant would be among them.” AR 965 (citing Hearing CD1 3:03-3:04). In 16 turn, “[t]he human-resources official who made the selection testified without 17 contradiction that nobody (including, presumably, the supervisor) made any 18 attempt to influence the process.” AR 965 (citing Hearing CD1 2:01). 19 Additionally, the AJ noted that Plaintiff’s disclosure did not directly accuse her 20 ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 30 1 supervisor or other agency official of misconduct, “so any motive to retaliate 2 would be relatively weak.” AR 965. 3 The AJ considered, and quickly dismissed, Plaintiff’s allegation of 4 mistreatment by her supervisor. For instance, Plaintiff alleged that Mr. Augspurg 5 moved her desk to a storage closet following cancellation of the Snokist contract. 6 AR 965-66 (citing Hearing CD2 0:26-0:27). This closet, however, as 7 acknowledged by Plaintiff at the hearing below, “was roughly twenty-four feet by 8 eleven feet” and was assigned for purposes of accommodating Plaintiff’s alleged 9 disability and protecting her from another employee whom Plaintiff had previously 10 11 complained was harassing her. AR 966 (citing Hearing CD2 1:52-1:53). On remand, the AJ considered additional evidence and argument submitted 12 by Plaintiff that the Agency would have been motivated to retaliate against her 13 because her whistleblowing led to cancellation of a large inspection contract and 14 unfavorable newspaper coverage. AR 1474. Although the AJ acknowledged that 15 the Agency had some motive to retaliate “to the extent that [Plaintiff’s] disclosure 16 set in motion the cancelation of the Snokist contract,” he continued to find this 17 motive “not particularly strong” because the disclosure involved conditions at a 18 private facility, did not directly accuse anyone at the Agency of misconduct, and 19 the official who was ultimately responsible for Plaintiff’s removal testified that he 20 was not upset by the cancellation. AR 1474. Regarding the newspaper coverage, ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 31 1 the AJ noted all articles that focused on the Agency had been published after 2 Plaintiff had already been removed; thus, the coverage could not have affected the 3 Agency’s decision. AR 1474 (citing AR 1244-48, 1253-56); see Yunus v. Dep’t of 4 Veterans Affairs, 242 F.3d 1367, 1372 (Fed. Cir. 2001) (“[T]he action taken by the 5 agency officials must be weighed in light of what they knew at the time they acted; 6 thus, later developments cannot be used either to support or undercut the validity 7 of the action taken.”). The AJ ultimately concluded that the second Carr favor 8 weighed in favor of Plaintiff and “more heavily” than previously found. AR 1474. 9 Third, the AJ found that the Agency has taken similar actions against 10 similarly-situated, non-whistleblower employees. In his Initial Decision, the AJ 11 initially found that the third Carr factor—evidence that the agency takes or has 12 taken similar actions against similarly situated employees who are not 13 whistleblowers—“weigh[ed] in favor of the agency, although also only mildly.” 14 AR 966. The AJ found the evidence showed at least one other employee, not 15 known to be a whistleblower, was removed after rejecting a directed reassignment. 16 AR 966 (citing Hearing CD1 0:24, 2:52). Specifically, the AJ heard testimony in 17 the case of one employee in Burley, Idaho, who had been reassigned due to 18 overstaffing and subsequently removed after he refused reassignment. ECF No. 19 65-2 at 20-21 (Hearing CD1). Although this showed that the Agency had taken 20 ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 32 1 similar action against non-whistleblowers, the sample size was too small to draw 2 any “strong conclusions about patterns of agency behavior.” AR 966. 3 On remand, the AJ readdressed the third Carr factor and found that it 4 “weigh[ed] very strongly in the agency’s favor.” AR 1472. The AJ considered 5 additional evidence that since 2003, thirty employees including Plaintiff had been 6 removed for failing to accept a directed reassignment and none of these employees, 7 save for Plaintiff, was known to be a whistleblower. AR 1470 (citing 1114). 8 Plaintiff offered no evidence to the contrary. AR 1470. Although the AJ found 9 Plaintiff was assigned significantly less work than her co-workers during the 10 period between when she refused reassignment and was removed, AR 1471 (citing 11 1307-08), the AJ found credible Mr. Augspurg’s affidavit, which stated Plaintiff 12 was on sick leave for part of the time and placed on paid administrative leave for 13 the remainder of the time when Plaintiff stated she would be unable to perform the 14 functions of her work.11 AR 1471 (citing AR 1414-16). The AJ found Plaintiff did 15 not rebut Mr. Augspurg’s affidavit with credible evidence. AR 1471. 16 11 17 that she was placed on paid administrative leave after she refused reassignment; 18 however, the AJ found this to be favorable treatment and questioned the relevance 19 as the proper inquiry was whether the Agency had removed non-whistleblowers for 20 refusing reassignments. AR 1471 (citing AR 960, 1218-20). The AJ did note that Plaintiff was treated differently from non-whistleblowers in ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 33 1 Ultimately, on remand, the AJ found the Agency had proved by clear and 2 convincing evidence that it would have reassigned and removed Plaintiff 3 regardless of her whistleblowing: 4 5 6 7 8 9 10 11 12 13 14 Considering the factors as a whole, . . . I am still left with a firm belief that the agency would have reassigned and removed the appellant regardless of her whistleblowing. For the reasons explained in my previous decision and in the Board’s rulings in this appeal . . . , the agency had strong evidence supporting its decision to take these actions. The agency also offered unrebutted evidence that it has removed more than two dozen non-whistleblowers in similar circumstances and that it has never taken any other action when an employee refused a directed reassignment and did not resign or retire voluntarily. Although the agency may have had some motive to retaliate against the appellant for her whistleblowing, I find that the evidence on the other factors greatly outweighs this motive. The agency selected the appellant for reassignment based on the same criteria it has used in all similar situations, and when she refused the reassignment it treated her exactly as it had treated all similarly situated employees. Because there is no credible evidence that the agency has systematically tried to punish whistleblowers through directed reassignments, this equality of treatment is powerful support for the agency’s position. I therefore find that the agency has proved by clear and convincing evidence that it would have reassigned and then removed the appellant regardless of her disclosure, and that the appellant has not established her defense of whistleblower retaliation. 15 16 17 18 AR 1474-75. ii. This Court’s Findings On appeal, Plaintiff first asserts that the AJ did not apply the proper standard 19 of review when analyzing the strength of evidence supporting the Agency’s 20 reassignment and removal decisions. ECF No. 68 at 11-18. Specifically, Plaintiff ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 34 1 asserts that the AJ failed to apply the clear and convincing standard of proof when 2 discussing the strength of the Agency’s evidence in support of its actions.12 3 Plaintiff also asserts that the AJ improperly shifted the burden to Plaintiff to rebut 4 the Agency’s evidence supporting the first Carr factor. Id. at 13-15. 5 This Court disagrees. The AJ, at the conclusion of his analysis, properly 6 determined that the factors as a whole provided clear and convincing evidence for 7 the Agency’s decision. See Whitmore, 680 F.3d at 1374 (“To be clear, Carr does 8 not impose an affirmative burden on the agency to produce evidence with respect 9 to each and every one of the three Carr factors to weigh them each individually in 10 the agency’s favor.”). Thus, the AJ was not required to explicitly find that clear 11 and convincing evidence supported the first factor alone. Nonetheless, the 12 evidence presented to the AJ adequately supported his initial conclusion that the 13 first factor weighed “overwhelmingly in favor” of the Agency and his ultimate 14 conclusion that the evidence presented by the Agency—and not rebutted by 15 12 16 faults the AJ for “[f]ailing to require USDA to disclose its files of out-of-Yakima- 17 area service reductions and imposing on Alguard the obligation to quantify how or 18 how much Yakima service reductions resulted.” ECF No. 68 at 15. As stated 19 previously, the AJ was not required—without a motion to compel or directive on 20 remand—to order the Agency to disclose. See Tiffany, 795 F.2d at 69. In critiquing the AJ’s application of the clear and convincing standard, Plaintiff ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 35 1 Plaintiff—“bolster[ed] the agency’s argument on the clear and convincing 2 evidence supporting its position.” Plaintiff’s contention that the AJ improperly 3 shifted the burden to Plaintiff to rebut the Agency’s reassignment decision 4 similarly lacks merit. The AJ did not shift the burden; he found that the Agency 5 had presented sufficient evidence to satisfy its burden, evidence of which Plaintiff 6 had not called into question. 7 Plaintiff also asserts that the AJ erred by not considering evidence of Mr. 8 Augspurg’s alleged retaliatory motive. ECF No. 68 at 6-11. According to 9 Plaintiff, the evidence below, in the aggregate, demonstrated that Mr. Augspurg 10 discouraged Plaintiff from disclosing the moldy totes issue to the FDA. Id. at 7-8. 11 Further, Plaintiff contends that the AJ did not appropriately examine Mr. 12 Augspurg’s role in the reassignment and removal process—that is, which station 13 was overstaffed, how many positions to eliminate, and which grade of position to 14 eliminate. Id. at 9-10. 15 Regarding the AJ’s examination of Mr. Augpurg’s alleged retaliatory 16 motive, this Court does not find error. The AJ explicitly addressed both the 17 evidence supporting and negating the Agency’s retaliatory motive and ultimately 18 determined that this factor weighed only “mildly” in favor of Plaintiff. 19 Specifically, the AJ addressed Plaintiff’s testimony, which, in part, accused Mr. 20 Augspurg of discouraging her from cooperating with the FDA, and noted that Mr. ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 36 1 Augspurg’s testimony was generally inconsistent. AR 965. Indeed, Mr. Augspurg 2 testified that he encouraged Plaintiff to disclose the moldy totes issue with the 3 FDA and approved of her cooperation, even recommending her for an award. 4 Hearing CD1 3:20-3:23. Even accepting Plaintiff’s allegations as true, the AJ 5 found the weight of the evidence showed that Mr. Augspurg played only a minor 6 role in the reassignment and removal process and although Plaintiff argues that her 7 disclosures “indirectly implicated” Mr. Augspurg, the AJ appropriately reasoned 8 that an indirect accusation did not carry as much weight.13 AR 965. Regarding the AJ’s examination of Mr. Augspurg’s role in Plaintiff’s 9 10 reassignment and removal, this Court does not find error. “[W]hen applying the 11 second Carr factor, the Board will consider any motive to retaliate on the part of 12 the agency official who ordered the action, as well as any motive to retaliate on the 13 part of other agency officials who influenced the decision.” Whitmore, 680 F.3d at 14 1371. Although Plaintiff would define Mr. Auspurg’s role differently, the 15 uncontradicted evidence shows that it was, at most, peripheral. True, Mr. 16 13 17 evidence of historical misconduct on the part of Mr. Augspurg in trying to conceal 18 the health issues at Snokist. ECF No. 68 at 7-8 (citing AR 557-58). However, if 19 anything, these emails show Mr. Augspurg’s transparency, not concealment, 20 regarding past issues at Snokist. See AR 556-61. Plaintiff highlights emails between Mr. Augspurg and other Agency personnel as ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 37 1 Augspurg was involved in discussions of revenue loss and staffing needs; however, 2 the AJ correctly found that Mr. Augspurg had no direct involvement in the 3 Agency’s decision to reassign and remove Plaintiff. Indeed, despite Plaintiff’s 4 attempts to solely attribute the reassignment decision to Mr. Augspurg, ECF No. 5 68 at 9-10, testimony shows that the initial determination that the Yakima duty 6 station was overstaffed was made by Mr. Augspurg in conjunction with Brett 7 Mourer (Assistant to the Branch Chief), Tony Gianneta (Western Regional 8 Director), and Randall Making (Acting Branch Chief). ECF No. 65-2 at 12 9 (Hearing CD1). Lynn McDonald, of HR, also testified that she had received an 10 email request from Brett Mourer to identify the SCD order of GS-9 Graders in 11 Yakima and that the request did not specify that any particular employees be 12 identified. ECF No. 65-2 at 8 (Hearing CD1). Robert Keeney testified that he was 13 the deciding official in Plaintiff’s removal. ECF No. 65-2 at 4 (Hearing CD1). 14 Besides Plaintiff’s baseless allegations, the evidence before the AJ would not 15 support a finding suggested by Plaintiff—that Mr. Augspurg was directly involved 16 in these decisions, let alone that he had “central decisional authority in impacting 17 [Plaintiff’s] career.” See ECF No. 68 at 10. 18 Although Plaintiff would have this Court reweigh all of the evidence and 19 assign greater weight to the Agency’s retaliatory motive, this is not the duty of the 20 Court. See Haebe, 288 F.3d at 1298. Rather, this Court’s duty is to determine ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 38 1 whether the AJ’s opinion is sufficiently supported by evidence in the record as a 2 whole, which this Court so finds here. Despite Plaintiff’s protestations, the AJ did 3 consider the negative effect Plaintiff’s disclosures had on the Agency in general, 4 the evidence indicating Mr. Augspurg’s alleged motive to retaliate against Plaintiff 5 in particular, and the evidence demonstrating which personnel were involved in 6 Plaintiff’s directed reassignment and ultimate removal. Accordingly, because the 7 AJ’s analysis of factor two considered all the evidence in the aggregate in 8 concluding that the Agency’s motive to retaliate was weak, Plaintiff has not shown 9 error. 10 Finally, on appeal, Plaintiff questions the AJ’s determination that the 11 Agency proved that it treated similarly-situated non-whistleblower and 12 whistleblower employees alike. ECF No. 68 at 20-26. Specifically, Plaintiff 13 appears to fault the AJ for not scrutinizing how the Agency selected non- 14 whistleblower employees for reassignment. Id. at 21. 15 This Court once again disagrees with Plaintiff’s assertion. In analyzing the 16 third Carr factor, the AJ was required to consider whether similarly-situated non- 17 whistleblower employees were treated differently. “[F]or an employee to be 18 considered similarly situated to an individual who is disciplined, it must be shown 19 that the conduct and the circumstances surrounding the conduct of the comparison 20 employee are similar to those of the disciplined individual.” Carr, 185 F.3d at ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 39 1 1326 (emphasis added); see also Whitmore v. Dep’t of Labor, 680 F.3d at 1373 2 (focusing on both characteristics and conduct when determining the pool of 3 similarly-situated employees). Here, the AJ, focusing on relevant conduct, 4 properly determined that the class of similarly-situated employees was those who 5 had also refused a directed reassignment. In so defining, the AJ considered 6 evidence regarding 29 non-whistleblower employees who had been similarly 7 removed for failing to accept a directed reassignment. 8 9 At any rate, the Agency was not required to produce evidence and affirmatively prove each and every one of the three Carr factors. Whitmore, 680 10 F.3d at 1374. Even if there was evidence presented addressing whether the 11 Agency also reassigned similarly-situated non-whistleblower employees— 12 although it is unclear on what basis that similarly-situated class would be formed— 13 “[t]he agency is not required to present evidence concerning all three of [the Carr] 14 factors; rather, ‘[t]he factors are merely appropriate and pertinent considerations 15 for determining whether the agency carries its burden.’” Cassidy v. Dep’t of 16 Justice, 581 Fed. App’x 846, 851 (Fed. Cir. 2014) (quoting Whitmore, 680 F.3d at 17 1374). Accordingly, this Court does not find error. 18 Overall, this Court finds the AJ’s conclusion that the Agency had shown by 19 clear and convincing evidence that it would have removed Plaintiff even in the 20 absence of any protected closures—specifically, that the strength of the Agency’s ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 40 1 evidence in support of its personnel decisions was very strong, that the Agency’s 2 motivation to retaliate was relatively weak, and that the evidence showed the 3 Agency did not treat Plaintiff differently than other similarly-situated non- 4 whistleblower employees—is supported by substantial evidence. See Yunus, 242 5 F.3d at 1372 (upholding as supported by substantial evidence the Board’s finding 6 that the Agency had shown by clear and convincing evidence that it would have 7 removed the employee even in the absence of any protected disclosures). 8 Accordingly, Defendant is entitled to summary judgment on this issue. 9 C. Confinement to Proceedings Before the MSPB 10 An employee who has been subjected to an action that is appealable to the 11 Board and alleges that she has been affected by a prohibited personnel practice 12 other than a claim for discrimination may elect to pursue a remedy through one, 13 and only one, of the following remedial processes: (1) an appeal to the MSPB 14 pursuant to 5 U.S.C. § 7701; (2) a grievance filed pursuant to the provisions of the 15 negotiated grievance procedure; or (3) a complaint following the procedures for 16 seeking corrective action from the OSC pursuant to 5 U.S.C. § 1211-1222.14 5 17 14 18 be presented to the OSC. 5 U.S.C. §§ 1214(a)(3); Briley v. Nat’l Archives & 19 Records Admin., 236 F.3d 1373 (Fed. Cir. 2001). An employee may then appeal 20 her retaliation claim to the MSPB if one of two scenarios occurs: (1) either the An individual right of action, if not directly appealable to the MSPB, must first ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 41 1 U.S.C. § 7121(g)(2); Moran v. MSPB, 152 F.3d 940 (Fed. Cir. 1998) 2 (unpublished). “[A]n employee’s first timely-filed action determines the exclusive 3 election under section 7121.” King v. Dep’t of the Air Force, 2011 M.S.P.B. 56 4 (2011). 5 6 1. AJ’s Findings The issue before the AJ on remand was whether Plaintiff made a binding 7 election to seek corrective action from the OSC under 5 U.S.C. § 7121(g) and was 8 therefore precluded from subsequently filing an appeal with the MSPB. In his 9 Final Decision, the AJ concluded that Plaintiff did not make a binding election to 10 seek corrective action from the OSC with respect to her removal. AR 1467-69. As 11 found by the AJ, Plaintiff filed a complaint with the OSC on September 6, 2011, 12 challenging the agency’s reassignment decision and alleging retaliation. AR 1467 13 14 OSC has notified the employee her claim has been terminated and no more than 60 15 days have passed, or (2) 120 days have passed and the OSC has not notified the 16 employee that it will seek corrective action on her behalf. 5 U.S.C. § 1214(a)(3). 17 Although the MSPB, in its Order to Show Cause, initially construed Plaintiff’s 18 claim as an individual right of action, ECF No. 28-2 at 2, her second appeal to the 19 MSPB was docketed as a chapter 75 appeal. The MSPB noted that Plaintiff did 20 not challenge her appeal as incorrectly docketed below. AR 1071 n.3. ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 42 1 (citing AR 1224, 1229-33). In November 2011, Plaintiff raised the agency’s 2 proposed removal with the OSC. AR 1467-68 (citing AR 1224, 1235, 1237, 3 1242). However, it was not until December 2011 that the Agency effected its 4 removal decision. AR 1468 (AR 145-58). The AJ found that Plaintiff could not 5 have elected to seek corrective action from the OSC with respect to her removal 6 before the agency actually effected the removal. AR 1468. As noted by the AJ, 7 Plaintiff did not attempt to amend her OSC complaint to include the effected 8 removal until after she filed her Board appeal. AR 1468 (citing AR 1279). 9 Moreover, the AJ found that Plaintiff could not have made a knowing and 10 informed election to proceed exclusively before the OSC. AR 1468-69. Because 11 the Agency had failed to provide Plaintiff notice of her right to seek corrective 12 action from the OSC in her notice of removal, “much less that doing so might 13 preclude her from filing a Board appeal,” the AJ found Plaintiff could not have 14 made a binding election to proceed before the OSC, even if she had timely 15 challenged her removal to that entity. AR 1468-69 (citing Agoranos v. Dep’t of 16 Justice, 2013 M.S.P.B. 41 (2013)). 17 18 19 2. This Court’s Findings In her First Amended Complaint, Plaintiff faults the AJ for confining her to proceedings before the MSPB and thus depriving her of seeking redress through 20 ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 43 1 the OSC. ECF No. 8 ¶ 35. Plaintiff has failed to present argument regarding this 2 claim in her response briefing. See ECF No. 68. 3 This Court finds the AJ’s findings are consistent with the applicable law, 4 specifically the MSPB’s binding election analysis in Agoranos. As noted by the 5 AJ, in order for an employee to make a binding election, his or her election must 6 be “knowing and informed”—“if it is not, it will not be binding upon the 7 employee.” 2013 M.S.P.B. 41. In Agoranos, the employee first filed a complaint 8 with the OSC alleging retaliation for several disclosures, which complaint he then 9 amended to include his removal. Id. Subsequently, the employee filed an appeal 10 with the MSPB. The MSPB found that the employee could not have made a 11 binding election to proceed before the OSC, despite first initiating proceedings 12 with that entity, because the employee was neither notified of his right to file a 13 request for corrective action with the OSC nor of the effect that such a request 14 would have on his appeal rights before the Board. Id.; see Agoranos v. Dep’t of 15 Justice, 602 Fed. App’x 795, 799 (Fed. Cir. 2015) (mentioning without discussion 16 the MSPB’s determination that the employee’s OSC complaint “did not constitute 17 a valid, informed election”). As correctly noted by the AJ, Plaintiff could not have 18 made a binding election to proceed with the OSC because such an election would 19 not have been “knowing and informed” without proper notice of the right to file 20 with the OSC and the effect of such filing. See AR 494 (discussing Plaintiff’s ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 44 1 appeal rights). Plaintiff—who failed to address this issue in her response 2 briefing—has not met her burden to demonstrate reversible error. See Buie, 386 3 F.3d at 1129. Accordingly, Defendant is entitled to summary judgment on this 4 final issue. 5 ACCORDINGLY, IT IS ORDERED: 6 7 8 9 10 Defendant’s Second Motion for Summary Judgment (ECF No. 64) is GRANTED. The District Court Executive is directed to enter this Order, provide copies to counsel, enter JUDGMENT for Defendant, and CLOSE the file. DATED August 20, 2015. 11 12 THOMAS O. RICE United States District Judge 13 14 15 16 17 18 19 20 ORDER GRANTING DEFENDANT’S SECOND MOTION FOR SUMMARY JUDGMENT ~ 45

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