Power v. Federal Labor Relations Authority

• Decision Date: 10 July 1998
• Docket Number: No. 97-1414,97-1414
• Citation: 146 F.3d 995
• Parties: 158 L.R.R.M. (BNA) 2781, 331 U.S.App.D.C. 54 David F. POWER, Petitioner v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent Pension Benefit Guaranty Corporation, Intervenor
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 995

146 F.3d 995

158 L.R.R.M. (BNA) 2781, 331 U.S.App.D.C. 54

David F. POWER, Petitioner v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent

Pension Benefit Guaranty Corporation, Intervenor

No. 97-1414.

United States Court of Appeals, District of Columbia Circuit.

Argued April 13, 1998.

Decided July 10, 1998.

On Petition for Review of an Order of the Federal Labor Relations Authority

Steven J. Silverberg argued the cause for the petitioner.

Ann M. Boehm, Attorney, Federal Labor Relations Authority, argued the cause for the respondent. David M. Smith, Solicitor, and William R. Tobey, Deputy Solicitor, Federal Labor Relations Authority, were on brief. Pamela P. Johnson, Attorney, Federal Labor Relations Authority, entered an appearance.

Nancy S. Heermans, Counsel, Pension Benefit Guaranty Corporation, argued the cause for the intervenor. James J. Keightley, General Counsel, Terrence M. Deneen, Principal Deputy General Counsel, and Patrick S. Menasco, Attorney, Pension Benefit Guaranty Corporation, were on brief.

Before: HENDERSON, ROGERS and GARLAND, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge:

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. 967 F.2d 658, 670 (D.C.Cir.1992). We also directed the FLRA to compare Power to another PBGC employee whose transgressions were "at least comparable" to Power's. Id. For the reasons set forth below, we uphold the FLRA's order of dismissal.

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 his position at PBGC due to "many incidents of ... insubordinate conduct." Pension Benefit Guar. Corp., 967 F.2d at 660. ¹ While not exhaustive, examples of Power's insubordination include his (1) repeated refusal to respond properly to a routine, supervisory request for a representative sample of his writing, id. at 659-60; (2) "inexcusable" failure to follow a "concurrence matrix" used by the office to ensure the consistency of its policies, id. at 660 (quoting a warning memorandum sent to Power by the assistant general counsel); (3) repeated refusal to accept messages from an assistant general counsel, including one scheduling a meeting to discuss the status of Power's cases, id. at 660-62; (4) repeated refusal to obey a management order to return the printout of an employee survey regarding computer usage that Power had obtained and kept without the knowledge or consent of authorized agency personnel, id. at 661; (5) threat directed to Donald Morrison, a fellow employee who ran for vice president of Local 211, id.; and (6) refusal to answer questions about the Morrison threat during an investigatory interview, id. at 661-62. Power's conduct eventually led the assistant general counsel to conclude that discharge was appropriate. Id. at 662. The General Counsel agreed "after weighing Power's record of service with the agency and his 'considerable legal talents' against his 'demonstrated lack of judgment and integrity,' his 'persistent pattern of flouting supervision' and 'the need for supervisory review to ensure the consistency of agency decisions,' his 'disregard for ... [Morrison's] statutory rights,' his 'complete absence of remorse,' and his 'instigation of other employees to violate established policies.' " Id. The General Counsel concluded that Power "was either 'unable or unwilling to conform his behavior to [the] high standard' of conduct expected of an employee in Power's position." Id.

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., 39 F.L.R.A. 935, 965 (1990). The ALJ credited the testimony of PBGC managers who stated that union activity played no part in their decision to terminate Power. The ALJ concluded that Power had failed to establish his allegations by a preponderance of the evidence. Id. at 960-65. The FLRA reversed, concluding that PBGC had wrongfully discharged Power because of his union affiliation and activities. Pension Benefit Guar. Corp., 39 F.L.R.A. 905, 931 (1991).

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," see 39 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., 967 F.2d at 666. Under the Letterkenny framework, ² we next examined whether PBGC demonstrated--as it must--that it would have discharged Power "even in the absence of protected activity." Letterkenny, 35 F.L.R.A. at 118. We noted that the analysis required a comparison of the PBGC punishments meted out to other similarly situated employees. Pension Benefit Guar. Corp., 967 F.2d at 666. We determined, however, that the FLRA's analysis of the "similarly situated status of the employees being compared" was "inadequately explained." Id. at 667. Specifically, we noted that the FLRA's comparison of Power to two other employees, employee #1 and employee #6, was insufficiently explained. ³ Id. at 668-70. We specifically "reject[ed] the FLRA's finding that the conduct of employee #1 and of Power was 'at least comparable' as unsupported by substantial evidence on the record as a whole." Id. at 667 (citing 5 U.S.C. § 7123(c); Universal Camera Corp. v. NLRB, 340 U.S. 474, 490, 71 S.Ct. 456, 95 L.Ed. 456 (1951)). ⁴ With respect to employee #6, we "question[ed] the FLRA's contention ... that employee #6 is not comparable" in that employee #6 was also an OGC lawyer, he "repeatedly dealt directly with PBGC's Office of the Executive Director, urging it to take positions that had not been approved by the General Counsel and were in some instances contrary to the General Counsel's positions" and he was given the choice to resign or be terminated. Id. at 669. We explained:

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...