Duggan v. Dep't of Def.

• Citation: 883 F.3d 842
• Decision Date: 26 February 2018
• Docket Number: No. 16-73640,16-73640
• Parties: George DUGGAN, Petitioner, v. DEPARTMENT OF DEFENSE, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

883 F.3d 842

George DUGGAN, Petitioner,
v.
DEPARTMENT OF DEFENSE, Respondent.

No. 16-73640

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 8, 2017, San Francisco, California
Filed February 26, 2018

Mark Hostetter (argued), Law Office of Mark W. Hostetter, San Jose, California, for Petitioner.

David R. Pehlke (argued), Trial Attorney; Allison Kidd-Miller, Assistant Director; Robert E. Kirschman Jr., Director; Chad A. Readler, Acting Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Susan P. Graber and N. Randy Smith, Circuit Judges, and Michael H. Simon,^* District Judge.

GRABER, Circuit Judge:

Petitioner George Duggan brought this action under the Whistleblower Protection Act against the Department of Defense, alleging that the Department took several adverse personnel actions against him in retaliation for his protected disclosures about misconduct at the Defense Contract Audit Agency ("DCAA"). Following an unsuccessful appeal to the Merit Systems Protection Board ("Board"), Petitioner timely seeks review. We must set aside the Board’s decision on the merits if 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) ;

883 F.3d 844

Coons v. Sec’y of U.S. Dep’t of Treasury , 383 F.3d 879, 888 (9th Cir. 2004). For the reasons that follow, we deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner works as a Senior Auditor at the DCAA. The events leading to the present dispute began in October 2012, when DCAA hired Vivian Cusi as its Fremont Branch Manager. Cusi supervised an audit team that included Petitioner.

Cusi visited the audit team for the first time on January 22, 2013. She approached Petitioner’s cubicle to introduce herself. According to the supervising auditor, David Downer, who accompanied Cusi, Petitioner was "hostile" and "disrespectful"; he shook Cusi’s hand only "reluctantly" and "questioned her presence." Downer further described Petitioner as "angry" and "unfriendly" when he first met Cusi. Downer also characterized the encounter as "quite alarming," in contrast to the uneventful introductions to other members of the team.

Later that day, Cusi and Downer convened a meeting with the audit team. Witnesses testified that Petitioner dominated the meeting and prevented the group from addressing the items on the agenda. In addition, Petitioner questioned Cusi’s experience, speaking in an "aggressive," "angry," and "disruptive" tone. Because of Petitioner’s behavior, the meeting was cut short before all agenda items could be covered.

When the minutes of the meeting were circulated by email, Cusi replied that they were incomplete. Because Cusi thought that Petitioner’s behavior should be recorded and addressed separately, she did not insist that a description of it be included in the minutes. But the minutes did record that Cusi "stopped the meeting" because, in her view, it "was not productive and [Petitioner] was monopolizing it." Petitioner replied in an email that Cusi’s "reaction to the team minutes is disappointing," and he described the meeting as "disastrous."

On February 14, 2013, Cusi informed the audit team that she, Downer, and other supervisors were focused on providing "guidance on team norms." She added that she was concerned that everyone in the branch should understand "the nuances of being candid and being respectful." Petitioner emailed back, copying the whole team:

Your response below is so arrogant and beyond the pale, like telling victims they asked for it. ...

In fact, you were the one who was disrespectful to us by, without provocation or acceptable reason, calling us "unprofessional" multiple times just because we deigned to call you on your rote, poorly reasoned and dangerous mgmt. concepts. ...

Your statement "nuance of being candid" below is just an oxymoron. ... Accept your mistakes and learn from them but do not try to disguise them by blaming those who made none.

It is just too low to blame the victims for their victimization. So, your response below is again disappointing and insulting, as it is you that need "to improve" your conduct, and change the toxic environment you have created.

Other recipients found Petitioner’s email to be rude, disrespectful, and disparaging. Cusi was shocked and offended.

On March 27, 2013, Petitioner received notice of a proposed 10–day suspension for "disrespectful and/or disruptive conduct." The three specifications were his behavior during the introduction to Cusi at his cubicle, his behavior during the January 22 afternoon team meeting, and the February 14 email. The notice also pointed out that

883 F.3d 845

this was Petitioner’s third offense for inappropriate behavior. He responded to the notice by stating, in part: "I have no illusions of the monolithic mind-set of DCAA management and their hatred beyond reason of me, so I expect this retaliation will go to court." On May 1, 2013, Petitioner was suspended for 10 days.

On July 31, 2013, Petitioner received an annual performance appraisal. He was rated only "minimally successful" in the "Critical Element" of "Communication and Organizational Support." The appraisal recorded that Petitioner resisted participating in meetings and challenged the need for them, told supervisors to communicate with him only by email and not in person, communicated in a disrespectful way, and sent some emails that were "particularly harsh." He was admonished that he "must consistently communicate in a professional and effective manner and strive to work more harmoniously" with his supervisors.

Because Petitioner received only a "minimally successful" rating in a "critical" area, DCAA revoked his telework agreement. That action conformed to DCAA policy, pursuant to which an employee’s performance must be at least "fully successful" for the employee to be eligible for the privilege of teleworking. Petitioner received no monetary performance award for 2013; but no employee of DCAA did, due to budgetary constraints.

After exhausting the whistleblower complaint procedures with the Office of Special Counsel, Petitioner filed an Individual Right of Action appeal on May 7, 2014. He alleged that seven protected disclosures contributed to DCAA’s decision to suspend him for 10 days, to rate his performance as only minimally...