etition for review of the Merit Systems Protection Board in case no. CH1221090692-W-1.
NOTE: This disposition is nonprecedential.
Before BRYSON, CLEVENGER, and LINN, Circuit Judges.
Julie E. Pearson ("Pearson") appeals from a final decision of the Merit Systems Protection Board ("Board") denying her request to correct her termination under the Whistleblower Protection Act, 5 U.S.C. § 1212 ("the Act"). Pearson v. Dep't of Veterans Affairs, No. CH-1221-09-0692 (Apr. 27, 2010) ("Initial Decision"), reh'g denied, (Feb. 2, 2011) ("Final Order"). For the reasons discussed below, this court affirms.
On September 28, 2008, the Department of Veterans Affairs ("VA" or "agency") hired Pearson as a probationary appointee at the Veterans Affairs Illiana Health Care System in Danville, Illinois ("VAIHCS"). Pearson was hired as an Architect and her responsibilities included facility planning and assisting with the layout and design of office spaces. While Pearson was employed at VAIHCS, she reported to Troy Field ("Field"), Chief of Planning Design. Field reported to Dan Murrell ("Murrell"), Chief of Engineering Services. Murrell reported to Diana Carranza ("Carranza"), Associate Director. Carranza reported to Michael Hamilton ("Hamilton"), the Director.
Pearson admits that she did not get along with Murrell, her supervisor's superior, and others in the office were aware of the "personality conflict" between Pearson and Murrell. One month after starting work for VAIHCS, on October 28, Pearson began looking for a new job. On November 7, Pearson admits that she decided to resign but that she "would try to stay for [a] meeting with [the] Director." Later that day, Pearson sent a long email to Murrell, Carranza, and others on a "furnishing committee" in which she berated Murrell and Carranza. Eight minutes after sending the email, Pearson went to Field and admitted that the email was "abrasive, volatile, possibly inappropriate" and that "[she] expect[ed] to be fired over it." On November 10, 2008, the VA terminated Pearson, effective November 22, because of her "disrespectful and unprofessional interactions with management."
On December 27, 2008, Pearson filed a complaint with the Office of Special Counsel asserting that her discharge was retaliatory. Pearson alleged, as the basis for her claim under the Act, that VAIHCS staff retaliated against her for disclosures protected by the Act. In addition to the cast of characters mentioned above, Pearson's allegations also involve Ed DeMoss ("DeMoss"), an electrician, and Janet Thompson ("Thompson"), an interior designer. On March 30, 2009, the Office of Special Counsel terminated its inquiry because it found insufficient evidence to support her allegations against the agency. Pearson filed a timely individual right of action appeal to the Board on June 6, 2009.
The Board distilled four possible protected disclosures made by Pearson: (1) an October 16, 2008, disclosure to Field of improper procurement policies and threats against Pearson by Murrell; (2) a November 5, 2008, disclosure to Field regarding Murrell's alleged threat to Pearson's employment in response to her request to meet with Director Hamilton; (3) a November 7, 2008, disclosure to Field of harassment by DeMoss for Murrell's benefit; and (4) a November 7, 2008, disclosure to Field regarding procurement violations and threats by Carranza and Murrell. Initial Decision at 6-7.
The Board held a three day hearing and ultimately denied her request for correction under the Act. Initial Decision at 2. In its decision, the Board analyzed each alleged disclosure and concluded that none of them were protected disclosures under 5 U.S.C. § 2302(b)(8). Initial Decision at 5-23. Specifically, the Board concluded that Pearson's disclosures were vague and conclusory allegations of wrongdoing, disclosures made in the normal performance of Pearson's duties, or simply frustrations expressed about Murrell's management decisions, and that none of these were protected disclosures under the Act. See id. Additionally, the Board concluded that even if Pearson had established that a protected disclosure was a contributing factor in her termination, the VA demonstrated by clear and convincing evidence that it would have terminated Pearson's probationary employment even in the absence of Pearson's disclosures. Initial Decision at 23-27. The full Board, on rehearing, denied Pearson's claim. Final Order at 8. Pearson appeals from the Board's final decision and we have jurisdiction under 28 U.S.C. § 1295(a)(9).
This court must affirm the Board's decision 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." 5 U.S.C. § 7703(c).
Pearson challenges the Board's decision on three grounds: (1) the Board erred in finding that Pearson failed to prove that she made any protected disclosures, (2) the Board erred in finding that she would have been terminated anyway, and (3) the Board erroneously excluded disclosures, erroneously dismissed disclosures, and ...