Hathaway v. Merit Systems Protection Bd.

• Decision Date: 11 December 1992
• Docket Number: No. 91-3572,91-3572
• Citation: 981 F.2d 1237
• Parties: Larry L. HATHAWAY, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1237

981 F.2d 1237

Larry L. HATHAWAY, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

No. 91-3572.

United States Court of Appeals, Federal Circuit.

Dec. 11, 1992.

Michael P. Heiskell, Johnson, Vaughn & Heiskell, Fort Worth, TX, argued, for petitioner.

Stephanie M. Conley, Atty., Merit Systems Protection Bd., Washington, DC, argued, for respondent. With her on the brief were Mary L. Jennings, Acting Gen. Counsel and David C. Kane, Asst. Gen. Counsel.

Before RICH, Circuit Judge, SKELTON, Senior Circuit Judge, and MICHEL, Circuit Judge.

MICHEL, Circuit Judge.

Larry L. Hathaway petitions for review of the August 16, 1991 final order of the Merit Systems Protection Board (Board) in Docket No. HQ12159010005 adjudicating a Special Counsel complaint for disciplinary action filed pursuant to the Whistleblower Protection Act of 1989 (WPA), Pub.L. No. 101-012, 103 Stat. 16. ¹ The Board imposed a 30-day suspension against petitioner as a penalty for engaging in a prohibited personnel practice under 5 U.S.C.A. § 2302(b)(8) (West Pocket Part 1992) by threatening an employee with removal and an unsatisfactory performance rating because of the employee's whistleblowing activity. Because the Board's determination of impermissible retaliation rests on substantial evidence, we affirm.

BACKGROUND

Mr. Hathaway is a GM-15 Regional Personnel Officer for the General Services Administration (GSA), Region 7. Special Counsel v. Hathaway, 49 M.S.P.R. 595, 598 (1991). Mr. Hathaway supervised Harry Sam Livengood, a GM-13 Employee and Labor Relations Officer, and Eddie Ward, a staffing specialist in the Employment and Training Branch of the Personnel Division. Id. at 598, 611 n. 18.

On July 31, 1989, Mr. Livengood and Mr. Ward met with members of the Regional Inspector General's (IG's) Office. Mr. Livengood reported to the IG what he perceived to be eight improper discontinued service retirement actions that petitioner had taken, and Mr. Ward supplied information about the appointment of an allegedly unqualified individual (hereinafter "Chadwick action"). Id. at 598.

Several days later on August 4, 1989, Mr. Hathaway discussed the Chadwick action and a possible leak to the union of management information with Mr. Livengood and Mr. Ward. After Mr. Ward had left, Mr Mr. Livengood: You cannot trust me.

                Hathaway told Mr. Livengood that he did not trust Mr. Livengood.  Id. at 598.   According to Mr. Hathaway, the following exchange then occurred
                

Mr. Hathaway: What do you mean?

Mr. Livengood: I'm out to get you.

Mr. Hathaway: With Harry?

Mr. Livengood: Yes.

Both men at this time were referring to Harry Dawson, AFGE Council 236 President, to whom management information was allegedly being leaked. Id. at 598. Although Mr. Livengood then quickly denied that he was alluding to Harry Dawson, Mr. Hathaway did not believe him. Instead, Mr. Hathaway reported to his supervisor that Mr. Livengood had admitted to being a union leak. Id.

Once Mr. Hathaway and his supervisor decided that Mr. Livengood should be reassigned, Mr. Hathaway summoned Mr. Livengood to inform him of the decision. During this meeting, Mr. Livengood told Mr. Hathaway that he had been to the IG, ² which prompted Mr. Hathaway to arrange a conference with the IG. Id. at 599. At the IG's Office, Mr. Hathaway explained that he had lost trust and confidence in Mr. Livengood, and that he believed, based on the earlier admission, albeit by then retracted, that Mr. Livengood was a union leak. Id. Mr. Hathaway described himself as being "emphatic" and possibly "loud"--at one point telling Mr. Livengood to shut up--while in the IG's Office.

Mr. Hathaway and Mr. Livengood continued to have a tense relationship after August 4, 1989. Id. at 600. Despite Mr. Hathaway's denials, the Board credited Mr. Livengood's testimony and found that "following [Mr.] Livengood's request for a copy of his 1989 performance appraisal" on October 2, 1989, Mr. Hathaway "told him that he should not expect a highly satisfactory rating the next year and that [Mr. Hathaway] would remove him from Federal service at the conclusion of the Special Counsel's investigation [into prohibited reprisal against a whistleblower]." Id. See id. at 607-08. Given the circumstances, the Board viewed Mr. Hathaway's statements as threats. Id. at 608-09. The Board further determined that the preponderance of the evidence demonstrated that Mr. Livengood's disclosure to the IG about allegedly improper discontinued service retirements was a contributing factor in the threatened personnel actions. Id. at 609-10. Finally, the Board determined that clear and convincing evidence did not show that Mr. Hathaway would have made those threats absent Mr. Livengood's protected disclosure. Id. at 610. ³

As a result, the Board sustained the Special Counsel's charge that on or about October 3, 1989 Mr. Hathaway threatened to remove Mr. Livengood and to give him an unsatisfactory performance rating for the 1989-1990 performance appraisal year. ⁴ As Mr. Hathaway made the threats "because of [Mr.] Livengood's disclosures to the IG," he committed a prohibited personnel practice in violation of 5 U.S.C.A. § 2302(b)(8) ⁵. After weighing in its assessment of a penalty the nature and seriousness of the offense, any adverse impact on the agency's reputation, and Mr. Hathaway's cognizance of the law, job level, past work record, and potential for rehabilitation, the Board ordered Mr. Hathaway to be suspended for 30 days. At 612-13.

Mr. Hathaway petitions for review of the Board's final order. We have jurisdiction pursuant to 5 U.S.C.A. § 1215(a)(4) (West Pocket Part 1992) and 5 U.S.C.A. § 7703(b)(1) (West Supp.1992).

DISCUSSION

I.

Congress has defined our standard of review for cases from the Board. We may not set aside the Board's final order unless we determine that 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) (1988). See Cheeseman v. OPM, 791 F.2d 138, 140 (Fed.Cir.1986), cert. denied, 479 U.S. 1037, 107 S.Ct. 891, 93 L.Ed.2d 844 (1987).

Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Bradley v. Veterans Admin., 900 F.2d 233, 234 (Fed.Cir.1990) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). "In order to determine whether the board's finding is supported by substantial evidence, it [is] necessary for the court to 'canvas' the entire record, because '[t]he substantiality of evidence must take into account whatever in the record fairly detracts from its weight.' " Spurlock v. Department of Justice, 894 F.2d 1328, 1330 (Fed.Cir.1990) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951)). Whether we would agree with the Board's fact findings if we were to review the record de novo is therefore irrelevant.

II.

Mr. Hathaway argues that substantial evidence does not support the Board's finding that petitioner actually threatened Mr. Livengood with removal and an unsatisfactory With respect to the alleged inconsistencies and imprecisions in Mr. Livengood's testimony, petitioner fails to explain how they are relevant to whether he made the threats on October 2, 1989 and/or are in fact inconsistent. For example, Mr. Livengood's failure to mention an appraisal in response to the question "Did Larry Hathaway in that meeting threaten to give you an unsatisfactory performance appraisal?" does not indicate that Mr. Livengood was inconsistent. Indeed, Mr. Livengood had earlier testified that Mr. Hathaway told him not to expect a highly successful rating the next year. In light of the strained relationship between Mr. Livengood and petitioner at the time, the Board found, and substantial evidence supports, that Mr. Hathaway's statement was a thinly veiled threat of an unsatisfactory performance rating. At 608-09.

                performance appraisal.   In this regard, Mr. Hathaway faults the Board for finding Mr. Livengood the more credible witness and points to various alleged inconsistencies and imprecisions in his testimony.   Since the Board credited Mr. Hathaway's recollection of events during his first meeting with Mr. Livengood on August 4, 1989 rather than Mr. Livengood's version, petitioner contends that the Board also had to credit his testimony regarding the October 2, 1989 meeting.   Mr. Hathaway's arguments are not persuasive
                

Mr. Hathaway further asserts that Mr. Livengood admitted to not remembering a threatened unsatisfactory performance appraisal. Again, such an admission would not undercut Mr. Livengood's testimony because he never claimed that Mr. Hathaway threatened him with an unsatisfactory rating. In addition, we do not agree with Mr. Hathaway's assertion. Mr. Hathaway draws the inference from the following testimony:

Mr. Hathaway: Back to the October 7th [sic] discussion that you had with Larry Hathaway, this was the meeting where you discussed the investigations.

Mr. Livengood: I don't remember.

Mr. Hathaway: That was the one where you're saying that Larry Hathaway told you you were going to receive an unsatisfactory performance rating for 1990.

Mr. Livengood: That's the only note [which refers to a threatened removal] I made of that meeting. I don't remember what else was discussed.

Given the context, however, the Board could properly interpret Mr. Livengood as saying only that he did not remember a discussion concerning "investigations," and as being silent with respect to future performance appraisals. Mr. Hathaway's inference is not the only permissible one; we have no basis to retry the facts in this petition.

Similarly, the Board committed no reversible error by discounting Mr. Livengood's inability to "recall in which of the two meetings the...