260 F.3d 1350 (Fed. Cir. 2001), 00-3041, Larson v Dept. of the Army

Docket Nº:00-3041
Citation:260 F.3d 1350
Party Name:STANLEY L. LARSON, Petitioner, v. DEPARTMENT OF THE ARMY, Respondent.
Case Date:August 14, 2001
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 1350

260 F.3d 1350 (Fed. Cir. 2001)

STANLEY L. LARSON, Petitioner,

v.

DEPARTMENT OF THE ARMY, Respondent.

00-3041

United States Court of Appeals, Federal Circuit

August 14, 2001

Appealed from: Merit Systems Protection Board

Page 1351

Loren M. Lambert, of Salt Lake City, Utah, argued for petitioner.

Patricia M. McCarthy, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent. With her on the brief were David M. Cohen, Director, and Mark A. Melnick, Assistant Director. Of counsel on the brief was Louis D. Carlson, Attorney/Advisor, Office of the Command Judge Advocate, U.S. Army Dugway Proving Ground, of Dugway, Utah.

Before NEWMAN, Circuit Judge, ARCHER, Senior Circuit Judge, and LINN, Circuit Judge.

ARCHER, Senior Circuit Judge.

Stanley Larson petitions for review of the final decision of the Merit Systems Protection Board ("Board") denying his request for corrective action under the Whistle blower Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16 (1989) (codified in scattered sections of 5 U.S.C.). Larson v. Dep't of the Army, DE-1221-98-0142-W-1 (M.S.P.B. Sept. 29, 1998). Because the Board's decision is based on an incomplete and inaccurate review of the record, we vacate and remand.

BACKGROUND

Larson is a motor vehicle operator (warehouse worker) at the U.S. Army Dugway Proving Ground in Dugway, Utah. Larson is responsible for transporting and properly storing a variety of materials, including high explosives and munitions. He ensures that the stored materials are properly marked, that they are stored only with compatible materials, and that explosive limits are not exceeded for a particular storage location. He is also responsible for periodic inventories of stored materials.

In late October 1997, an inspection revealed a loose light fixture in an ammunition storage facility, known as an "igloo." An electrician examined the fixture and determined that power tools would be required to fix it. Larson, who was present during this inspection, informed the electrician that power tools could not be used in an igloo filled with explosives. Larson informed the electrician that he would ask his supervisor, Mr. Diel, how they should proceed. Larson discussed the issue with Diel and suggested that the explosives be removed from the igloo so that the fixture could be repaired. Diel disagreed and decided

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to remove the defective lighting fixture, rather than repairing it, without removing the ammunition.

Larson objected to this decision. He felt that removing the light fixture was wasteful. Larson was also concerned that changing the lighting system (removing it) without first removing all ammunition from the igloo would violate the relevant safety regulations. Larson therefore contacted the Dugway Proving Grounds Safety Office and relayed his concerns to Trace Salmon, a safety specialist in that office. Salmon indicated that Larson's concern seemed reasonable and agreed to investigate the pertinent regulatory requirements. Salmon subsequently consulted with Craig Bodily, a safety and occupational health specialist in the Safety Office. Bodily was to research the issue and to call Larson with his results. Bodily determined that some maintenance activities could take place in the presence of explosives and others could not. He called Larson and informed him of his findings, but the record does not indicate whether he made any specific recommendation concerning the maintenance activity at issue -- removal of the light fixture.

On November 5, 1997, an electrician called Larson to inform him that he would be arriving shortly to remove the light fixture, pursuant to Diel's orders. Still concerned that the removal of the light fixture was a safety violation, Larson again contacted the Safety Office. This time he spoke to a third individual, Clair McBride. McBride listened to Larson's concerns and informed him that he would investigate the matter and get back to him. McBride subsequently contacted the electricians who were to perform the work on the igloo as well as the electricians' supervisor. He also contacted Diel and Walt Vigil, a quality assurance ammunition specialist. McBride additionally consulted the relevant safety regulations. Following this investigation, McBride determined that the removal of the light fixture did not require removing the ammunition from the igloo, and McBride informed Diel and Larson of this determination. It is unclear from the record, however, when McBride communicated his conclusions to Diel and Larson.

Meanwhile, later in the morning of that same day, November 5, the electricians arrived and Diel asked Larson to retrieve the key to the igloo so that they could perform the scheduled work. Larson refused, telling Diel that if he wanted the key he would have to get it himself. Diel then asked Larson if he knew what insubordination was, and Larson replied that he did. The next day, Diel proposed a 3-day suspension for Larson. This suspension was later reduced to one day.

Approximately two weeks later, on November 18, 1997, Larson received his performance appraisal for the rating period of April 6, 1996 to March 31, 1997 ("the 1996-7 appraisal"). This appraisal, which did not cover the time period of Larson's alleged act of insubordination, rated his performance at the intermediate "success" level. Larson had previously complained on numerous occasions that his performance appraisals for several ratings periods were long...

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